Smith Co. of California, Inc.

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith Company of California, Inc and Printing Specialities and Paper Products Union Local No 362, International Printing Pressmen and Assist- ants' Union of North America, AFL-CIO Cases 20-CA-6744, 20-CA-6792, and 20-CA-7046 December 6, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENEI LO On May 26, 1972, Administrative Law Judge' Allen Sinsheimer, Jr , issued the attached Decision in this proceeding Thereafter, the Respondent and the General Counsel filed limited exceptions and briefs in support thereof, and Respondent and General Counsel filed answering briefs Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings,2 findings,3 and conclusions4 of the Administrative Law Judge and to adopt his recommended Order as modified 5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- i The title Trial Examiner was changed to Administrative Law Judge effective August 19 1972 2 Like the Administrative Law Judge we find no merit in the Respondents contention that the General Counsels and/or the Regional Directors refusal to agree to a partial settlement on terms offered by Respondent was either arbitrary or capricious as there appears to be no abuse of discretionary power vested in the General Counsel and/or the Regional Director by the Board to effect settlements Gimbel Brothers Inc 100 NLRB 870 871 Respondent now argues that the Board should not have denied a hearing in the underlying representation case (192 NLRB No 162 Chairman Miller dissenting) and that a hearing on its objections should now be directed We note that during the hearing herein Respondent refused on a number of occasions to accede to the requests of the General Counsel and the Charging Party to join with them in a motion to the Board to permit litigation in this hearing of the objections in the underlying representation case The Administrative Law Judge on the record told Respondent that this procedure was one he had seen employed in similar situations Whether or not we would have granted such a joint motion a matter we need not decide at this time but which would not necessarily have been fruitless as our dissenting colleague apparently believes it is clear that the Respondent precluded any possibility of full litigation herein of its allegations Contrary to the implication of the dissenting opinion these refusals did not occur as part of settlement discussions Rather the Respondent declined such joinder on the record in response to the procedural requests by the other parties and the Respondent attempted to tie the litigation of this aspect with a settlement by stating it would not consider joining in such a motion in connection with the 8(a)(5) allegations until settlement had been reached on the 8(a)(1) and (3) portions of the complaint The only other reference in the record which relates this motion to a settlement is in a summarization by ed Order of the Administrative Law Judge, as modified herein, and hereby orders that Smith Company of California, Inc, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified 1 Renumber paragraphs 1(f) and (g) as 1(g) and (h), respectively, and insert the following paragraph to be numbered 1(f) "(f) Failing to disclose the promotion of an employee to supervisor so that said supervisor may be eligible to vote in a Board-conducted election " 2 Renumber paragraphs 2(a), (b), and (c) as 2(b), (c), and (d), respectively, and insert the following paragraph to be numbered 2(a) "(a) Upon request, recognize and bargain collec- tively in good faith with the above-named Union as the exclusive representative of all employees in the appropriate unit " 3 Substitute the attached notice for the Adminis- trative Law Judge's notice CHAIRMAN MILLER, dissenting in part I dissent only from the part of my colleagues' decision which finds Respondent guilty of violations of Section 8(a)(5) of the Act As set forth in my dissent in the underlying representation case (192 NLRB No 162) I am of the view that the certification was improvidently issued, and that Respondent was entitled to a hearing on its objections in that case At the hearing in the instant case, Respondent was again precluded by the Ad- ministrative Law Judge from introducing evidence as to these objections Footnote 2 of the majority opinion is somewhat misleading, in that it seeks to the Administrative Law Judge of his understanding of prior efforts of the parties to dispose of the matters Under the circumstances we cannot but view the Respondents present exceptions as a delaying tactic to avoid its duty to bargain with the certified representative of its employees In view of the foregoing and the record as a whole we find no merit in this exception of the Respondent 3 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Boards established policy not to overrule an Administrative Law Judge s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 4 While we agree with the Administrative Law Judge that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union after certification and that there is insufficient basis for finding that the obligation to bargain arose in March 1971, after the election but while objections thereto were pending we do not adopt his discussion and application of Irving Air Chute Company Inc 149 NLRB 627 The General Counsel excepts to the Administrat ve Law Judge s failure to find that Respondent is a successor to Republic Corporat on and alleges that as such successor Respondent should be ordered to remedy Republic s 8(a)(1) violation We find it unnecessary to pass on the issue of successorship as an order to remedy any additional violation of Section 8(a)(1) which might be found herein would merely be cumulative 5 The Administrative Law Judge found that Respondent violated Section 8(a)(5) and ( 1) of the Act and included an affirmative provision in the notice but he inadvertently failed to include such a provision in the affirmative Order We shall amend the Order accordingly 200 NLRB No 106 SMITH COMPANY OF CALIFORNIA, INC 773 create the impression that Respondent was afforded an opportunity to litigate this issue and declined to do so However the Judge below was persistent in his refusal to entertain a challenge to the certification All discussion of General Counsel's "requests" to join in a special motion to the Board occurred in the context of settlement discussions which did not come to fruition and which, therefore, we ought not to consider at all In any event, Respondent was under no obligation to participate in what doubtless would have been a futile gesture in seeking an extraordinary ruling from this Board to overrule the Administrative Law Judge and permit relitigation of an issue which a majority of my colleagues had already once refused to allow to be heard in the representation case Respondent hardly can be said to have "precluded any possibility of full litigation" when the record clearly demon- strates that the invalidity of the certification was raised as an affirmative defense in the answer to the complaint, and when the Administrative Law Judge repeatedly indicated that he would not permit litigation of that issue Because I view the certifica- tion as having been improvidently issued, and because Respondent has once again been improperly denied a hearing on a relevant issue, I would reverse the 8(a)(5) findings of the instant complaint and instead remand it for a further hearing for purposes of receiving evidence as to the issues raised by Respondent's objections to conduct alleged to have affected the results of the election APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees concern- ing union membership and activities WE WILL NOT threaten employees that we will not reach agreement with or negotiate with the Union WE WILL NOT threaten employees that selection of the Union would result in inability to shift or transfer employees and cause layoffs when work is slow WE WILL NOT require employees to resign from the Union as a condition for reinstatement WE WILL NOT fail to disclose the promotion of an employee to supervisor so that said supervisor may be eligible to vote in a Board-conducted election WE WILL NOT unilaterally adopt or change rules as to eating, drinking, and like working conditions without prior consultation and negotiation with the Union WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act WE WILL, upon request, recognize and bargain collectively with Printing Specialties and Paper Products Union Local No 362, International Printing Pressmen and Assistants' Union of North America, AFL-CIO The bargaining unit is All production and maintenance employees, including delivery truck drivers of Respon- dent, excluding all other employees, office clerical employees , guards, and supervisors as defined in the Act SMITH COMPANY OF CALIFORNIA, INC (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-0335 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR, Trial Examiner This consolidat- ed proceeding was heard at San Francisco, California, on December 2, 9, 10, 14, 15, 17, and 23, 1971, and on January 10, 11, 12, 13, 14, 20, and 21, and February 1, 1972 On September 21, 1971, an order consolidating cases, and a consolidated complaint and notice of hearing was issued in Cases 20-CA-6744 and 20-CA-6792 I On November 9, 1971, a complaint was issued in Case 20-CA-7046 and on the same date this case was consolidated with Cases 20-CA-6744 and 20-CA-6792 and notice of hearing on the consolidated cases issued The aforesaid complaints allege violations of Section 8(a)(1), (3), and (5) of the Act Respondent has denied the violations as alleged Issues presented are (1) the validity of the certification issued by the Board in a representation proceeding, Case ' On May 12 1971 an initial charge was filed in Case 20-CA-6744 and on September 14 1971 a first amended charge On June 3 1971 the charge in Case 20-CA--6792 was filed and on October 4 1971 the charge in Case 20-CA-7046 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 20-RC-9771, (2) whether the General Counsel can pursue an alternative theory of violation of Section 8(a)(5) other than one predicated on the certification, (3) whether if so, there would be any merit thereto, (4) whether the strike which occurred was an unfair labor practice strike and if so, when, (5) whether Respondent violated Section 8(a)(3) of the Act in connection with the reinstatement of two persons , and (6) whether Respondent violated Section 8(a)(1) of the Act Upon the entire record including my observation of the witnesses and after due consideration of the briefs of the General Counsel and Respondent I make the following 2 FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT Respondent is a California corporation engaged in business since February 1, 1971, at Burlingame, California, where it operates an offset printing and mailing service During the period February 1, 1971, through June 30, 1971, Respondent performed printing and mailing services valued in excess of $44,000 for Qantas Airways and continues to perform such services for Qantas on a regular basis Projected on an annual basis Respondent's receipts for such services for a 12-month period can be expected to exceed $100,000 Qantas, an Australian corporation, with an office in San Francisco, California, has been transacting business as an International air carrier of freight, and during the past year Qantas received in excess of $50,000 for transporting air cargo between California and various locations in foreign countries I find that Respondent is and at all times material has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 At the hearing on motion of the General Counsel the allegations of par 6h i, j k in n and o and also par 1 lb of the consolidated complaint in Cases 20-CA-6744 and 6792 were stricken Respondent s motion to dismiss filed at the end of the hearing is demed except as to such matters as to which I find hereafter that Respondent did not violate the Act The General Counsel s motion to reconsider my ruling with respect to certain polygraph testimony and to allow such is hereby again denied The General Counsel has also moved for reconsideration of rulings where an affidavit of Morris Klein was in part received as a prior consistent statement Although I have some reservations with respect thereto, since it is unnecessary to predicate any finding thereon, I am not reconsidering this ruling 3 At the hearing the Respondent sought to effectuate a settlement of the matter by offering to enter into a formal settlement with a nonadmission clause covering all allegations except for the alleged violation of Sec 8(a)(5) which Respondent desired to litigate on the basis of its contentions that the Board certification (post) was invalid The Board (as set forth post) had certified the Union on August 27 1971, in a two to one decision wherein there was involved the question of whether there should have been a hearing as to certain alleged misconduct by the Union in relation to the election The Trial Examiner stated his belief that such appeared to be a desirable way to dispose of the matter but the General Counsel after first indicating objection to a nonadmission clause stated that he desired to litigate the 8(a)(1) and (3) allegations in support of an alternative theory of violation of Sec 8(a)(5) and remedy under the Gissel doctrine The Trial Examiner pointed out that he considered that the certification should be sufficient basis for proceeding and that the General Counsel s alternative theory would seem to be no better than the certification because if the certification majority were tainted then the same taint would appear II THE LABOR ORGANIZATION INVOLVED Printing Specialties and Paper Products Union Local No 362, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, herein called the Union, is a labor organization within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES 3 A Background Prior to February 1, 1971, the operations here involved were conducted by the Republic Corporation Commenc- ing February 1, they have been conducted by the Smith Company, Respondent herein On January 14, 1971, the Union filed a petition with the Board seeking an election among production and maintenance employees of Repub- lic Corporation which was amended to include delivery truck drivers On January 25 Republic entered into a stipulation for certification upon consent election and an election was set for February 17 B The Alleged Violation of Section 8(a)(5) On February 17, 18 out of 22 of Respondent's employees designated the Union as their exclusive representative for the purpose of collective bargaining Thereafter the Respondent filed objections to the election 4 At all times following the election, Respondent admits that it has refused to bargain with the Union On August 27, the Board found the election objections without merit and issued its decision certifying the Union as the bargaining representative for all employees in the following unit which I find appropriate All production and maintenance employees, includ- ing delivery truck drivers of Respondent, excluding all other employees, office clerical employees, guards and supervisors as defined in the Act, constitute a unit to apply to the majority who went or strike In addition as set forth more fully hereafter, the Board has held in Irving Air Chute Co Inc 149 NLRB 627 at 630 that it would not direct a bargaining order unless an election were set aside However the General Counsel was unwilling to accept a proposed partial settlement as offered by the Respondent and neither was the Charging Party Both the General Counsel and the Respondent in their briefs, have referred to the Administrative Procedures Act which the Trial Examiner pointed out at the hearing has certain applicability with respect to opportunity to settle litigation However since neither a settlement agreement executed by Respondent nor an appropriate motion with respect thereto was submitted there is no pending issue with respect thereto 4 In its answer Respondent set forth as an affirmative defense material submitted in connection with its election objections which the Board had held did not warrant a hearing The answer was received over objection in order to insure due process and that all such material submitted in the representation proceeding would be available to the Board and the courts The answer was not received for the truth of matters set forth (except as otherwise established), nor was any evidence taken with respect to certain election objections referred to therein although the General Counsel and the Charging Party offered and sought to proceed to hearing on the objections that had been filed by the Respondent in the representation case The Trial Examiner declined to allow testimony thereon on the ground that the certification was binding and that under Board policy it would be inappropriate and improper to consider such matters absent a proper ground such as change of law or newly discovered evidence The Charging Party made an offer of proof with respect to certain matters set forth in the election objections which offer of proof was rejected SMITH COMPANY OF CALIFORNIA, INC 775 appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act The Union renewed its request for recognition by telegram sent September 1 and received on or about that date Respondent again declined to recognize it by letter of September 16, 1971 On the basis of the foregoing I find that the Respondent has failed and refused to bargain with the Union in violation of Section 8(a)(5) of the Act It is accordingly unnecessary to consider any other theories that the General Counsel may have The Board in Irving Air Chute Co, Inc, 149 NLRB 627 at 630 said as to a labor organization which loses an election, that although it may seek bargaining relief where it appears the employer has engaged in conduct requiring the election to be set aside, "We will not grant such relief, however, unless the election be set aside upon meritorious objections filed in the representation case Were the election not set aside on the basis of objections in the present representation case, we would not now direct a bargaining order even though the unfair labor practice phase of this proceeding itself established the employer's interference with the election " In addition to the evident undesirability of unnecessary litigation, the Irving Air Chute decision would also appear to preclude consideration of any other theory herein Further, as previously pointed out, were the conduct set forth in the Employer's election objections found to have occurred and to be such as to taint the majority vote in the election it would appear that the same taint would apply to the majority who went on strike March 11, a few weeks later I do not find anything which occurred in the interval between the election and the strike that would affect this conclusion, although I am finding certain unfair labor practices,post, on the part of the Respondent Accordingly, I find and conclude first that consideration of a Gissel remedy is inappropriate and second that even were the election to be set aside and the certification to be held invalid that Gissel would not be applicable in this case 5 C The Strike The complaint alleged that the strike was an unfair labor practice strike This has a significance as to the allegations of violation of Section 8(a)(3) in the cases of Earl Norwood and Lowell Rayo General Counsel evidently contends that the strike was an unfair labor practice strike from its inception There is apparently also a contention that it was caused by certain improper conduct of Respondent, in addition to its refusal to bargain after the election While there is some testimony from one or two witnesses that there may have been some discussion at a meeting of employees on March 9, after the election, of matters other than negotiation with Respondent, it is quite clear that the strike resulted from the Respondent's unwillingness to negotiate with the Union following the election Earl Norwood testified that at the March 9 meeting there was discussed A The position that the company was taking about negotiating a contract We gave the negotiating committee the power to call a strike in order to put some kind of leverage on the company Q Now, did the employees discuss why they wanted to give this authority to the negotiating committee9 A As leverage to get the Smith Company to the bargaining table Lowell Rayo testified Q What did the employees discuss9 A The fact that the girls-some of the girls were laid off, and office help was brought out to do the work The girls that were laid off, there was work there Q Was anything else discussed9 A Yes, the fact that they refused to allow the union in there at all, even after we had our election And on our cross-examination Q What was said before you voted about the strike, if anythmg9 A They just said that they had tried to negotiate with the company The company refused to allow them in the front door They would have to have some basis for bargaining Q So the strike vote was given as the basis for bargaining9 A They asked us how-what we wanted to do about it, what shall we do about it Several people spoke up and said, the only thing we can do is go out on strike Norman Vitue (also spelled Vichu in transcript) testified Q (By Mr Jordan) Just tell us what the employees said A They said they were upset because of the lay- offs, and that they were also-we also spoke about the unwillingness to negotiate with the Union Etta Ray testified Q When was that A The 9th, and we would go out on strike in order to get the Smith Company to recognize us as a union and negotiate with us and make some kind of negotiations Q This was discussed? A Yes, it was June O'Brien testified Q What was the discussion A That the only way to make the company negotiate with us, to give us a little leverage And there was four of us that was laidoff And that they could keep doing that And that it was up to us whether we wanted to go on strike or not And that if the vote was taken, it would be-we would go out on strike if Earl Norwood, Norman Vitue and myself said so From the foregoing although there may have been some talk about layoffs it is evident and I find that the strike was to compel Respondent to recognize and bargain with the Union Certain occurrences on the picket line discussed hereafter also make clear this purpose Respondent on the other hand appears to contend that 5 In view of these conclusions I am not considering whether or not Gissel would be applicable where a Union had won an election and it were set aside 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD somehow the strike was a result of violence and fear and threats to the employees Whatever violence may have taken place, however, evidently occurred after the strike commenced so that it could not have been a causal factor in bringing about the strike In addition to the foregoing, pickets Earl Norwood, Lowell Rayo, Norman Vitue, and June O'Brien testified credibly that about a week after the strike commenced, Amir Zavieh, the controller and general manager, asked the employees to come back to work June O'Brien asked if he would negotiate with the Union and told him if he would negotiate, the strikers would return Zavieh respond- ed that he would "never negotiate " Zavieh testified that he didn't know why the Union was on strike, offering some unlikely causes which he "could" have believed caused the strike, but did admit one possible reason was his refusal to bargain Respondent witness Marilyn Shiels (also spelled Shields in transcript), former plant superintendent, testified concerning discussions with Zavieh Q (By Mr Mathiason) And, what, specifically, do you remember Mr Zavieh saying about union recogm- tion') Q (By Mr Mathiason) Mrs Shields? A Just exactly what I said He would ask me, "Should we')" "Shouldn't we')" "Will it hurt us')" "Won't it hurt us')" Q (By Mr Mathiason) Did Mr Zavieh, during the course of this conversations, [sic] state that he would never recognize the union') A He may have, but in the same course of these conversations, he would come back and say, "I think we might just as well " This latter lends additional corroboration to the testimony above that Zavieh told O'Brien and others he would never negotiate with the Union I consequently find, that Zavieh so stated and thereby violated Section 8(a)(1) as alleged These conversations on the picket line wherein O'Brien stated the strikers would return if Respondent would negotiate, reinforce the conclusion that the strike was to compel Respondent to negotiate with the Union, which Respondent refused to do However, this does not appear to create an unfair labor practice strike until the certification was issued and the Respondent thereafter refused to negotiate The strike for recognition and bargaining then became an unfair labor practice strike Accordingly, I find that the strike was economic in nature, until the certification, and became an unfair labor practice strike thereafter, upon the Respon- dent's refusal to bargain upon request following the certification D The Alleged 8(a)(3) Violations 1 Earl Norwood Before reviewing the circumstances of Norwood's rein- statement, those of Eleanora Smith will be considered Eleanora Smith, who had been on sick leave , inquired about her job and sick pay of Anur Zavieh According to Smith, Zavieh told her that to come back she had to "send the Union a registered letter, send him a registered letter and that I could come back to work " Zavieh asked if she had the address of the Union She told him "no " Then she testified "Eleanora, he says `I have got a pamphlet here showing that you can come back if you want and nothing will be did about it There is a little circle here around it' " Zavieh started to read it, said he would mail it to her and did so Smith added that Zavieh then told her "in order to come back to work I had to have this registered letter " One copy was to be sent to the Union and one to him Zavieh then mailed her some papers one of which, from a publication, contained the heading "Union can't discipline resigned ex-members," and stated "an employee who disagrees with the strike vote, resigns from a union and continues to work during a strike cannot be fined by the union for violating the picket line the National Labor Relations Board ruled recently " Along with this clipping Zavieh admittedly sent a note which stated in part, "Please send me a copy of your letter to union " "Thanks " (Emphasis supplied ) Zavieh's testimony varied concerning this Under direct examination, according to Zavieh , Smith said she was going to write a resignation letter to the Union and he said, "If you want to give me a copy I will be more than happy to file it for you " On cross-examination Zavieh testified Smith said she was afraid to come back to work because there was a fine Zavieh also testified that Mrs Smith asked, "Would you be able to retain a copy of my letter')" On questioning by the Trial Examiner, Zavieh said he did not know why Smith was sending him a copy of her resignation letter Subsequently when asked why he wanted the letter he said that Smith volunteered to give a copy and also asserted that the Respondent permitted employees to include personal correspondence in company files Then Zavieh was shown his note to Smith and testified that he really didn't know why he had requested the letter, "it was a matter of course " While the right to resign from a union without penalty nught be pointed out under certain circumstances, it appears that Zavieh went beyond this and told Smith or led her to believe it was incumbent on her to resign in order to get her job back Whatever question or ambiguity in the testimony there may have been , the request to send Zavieh a copy of the letter to the Union leads to the conclusion that Zavieh was conditioning reinstatement on withdrawal from the Union I so find, and that Respondent thereby violated Section 8(a)(1) of the Act Earl Norwood, in the beginning of May, telephoned Moms Klein, who succeeded Shiels as plant superintend- ent and production manager in March Norwood told Klein he was an experienced inserting machine operator Klein, according to Norwood, instructed him to resign from the Union and to supply him with two copies of his resignation letter On about May 10, Norwood met with Klein at Respondent's premises and gave hun the resigna- tion letters which Klein accepted , looked at briefly but he did not at that time reinstate Norwood Klein admitted that Norwood had given him two copies of the resignation SMITH COMPANY OF CALIFORNIA, INC letter and he accepted a copy but denied having required Norwood's resignation as a condition of employment As to this aspect of the matter it appears that Norwood certainly understood that Klein expected the resignation letters Klein, as set forth, accepted them and in addition this is akin to the situation, supra, between Zavieh and Smith I accordingly find that the Respondent did indicate to Norwood, or led hun to believe, that a condition of his reinstatement was to resign from the Union and Respon- dent thereby violated Section 8(a)(1) This leads to the issue as to Norwood's reinstatement On May 28, the Union filed a charge that Norwood had been discriminated against on reinstatement On June 21 he was reinstated The question is the reason for not reinstating him between May 10 and June 21 At the hearing Klein testified that lack of work was the reason for denying reinstatement In an affidavit to a Board investiga- tor Klein gave several reasons including Norwood's not filling out the necessary application form, his not having accurate information about his former employment, and not having much work While the General Counsel points to the vaned reasons and their order in the affidavit, it is not unusual for the taker of an affidavit to state in whatever order he deems appropriate the reasons where several are given and for the person questioned to state more than one reason if he believes such applicable First it is necessary to determine whether or not there was a job available which Norwood could perform If the strike were economic and he were replaced and there were no other jobs available it would not be necessary to reinstate him If it were an unfair labor practice strike and he were replaced, he would be entitled to reinstatement The General Counsel contends that records which are not complete indicate a minimum of 140 7 hours were allocated to the inserting department, the largest block being worked by Jim Vanek, 40 6 hours, who was a machine operator and mechanic employed after the strike commenced and the smallest number recorded, 3 8 hours performed by Barry Beattie General Counsel refers to Beattie as an "alleged" supervisor However Klein credibly testified that Beattie was a supervisor with authority to assign work and to hire and fire Accordingly I find Beattie was a supervisor within the meaning of the Act Furthermore the testimony of Klein in this respect, which I credit, reflects that Beattie did a good deal of work which was not recorded, even though it should have been, but that as supervisor he did not always so record it There was 60 hours of inserting time, stipulated as performed, which could not be dated Also Klein testified credibly that the amount of work was spasmodic and not consistent The foregoing reflects that there was some work that Norwood could perform but that it was not necessarily regular or full time As an economic striker he could not have replaced anyone even if someone were doing the work full time Further it does not appear that there was anyone who was performing the work full time or near full time during the month of May Also Klein testified that Supervisor Beattie was performing a large amount of the inserting machine operations Jim Vanek, the employee 777 fisted with the largest amount of time, was a mechanic Vanek's total time shown would reflect about one-fourth time during May Accordingly as an economic striker Norwood was not entitled to reinstatement Even were he an unfair labor practice striker (which I do not find) he would not be entitled to reinstatement as the records do not show that anyone had actually replaced him It accordingly appears that there was no replacement for Norwood and therefore no failure to reinstate him whether he was an economic or an unfair labor practice striker I accordingly find that the Respondent did not violate Section 8(a)(3) by not reinstating Norwood until June 21, when, according to Klein, work became available 2 Lowell Rayo In early October, when the strike ended, the Respondent sought to notify all employees both by letter and by telephone that they should come in to apply for reinstate- ment Although Lowell Rayo did not receive the letter sent to her, she did receive a phone call and applied for work about October 5 On October 20, she was offered reinstatement but declined There is some conflict as to whether Rayo indicated she was going on a vacation or not Rayo testified that she simply inquired about vacation pay or said she had vacation time coming Klein and Wilma Sheppard, assistant to Klein, testified Rayo stated she wanted to take a vacation Klein said Rayo asked for 2 weeks Sheppard said Rayo wanted to take I or 2 weeks off for vacation Rayo's application states that she would not be available for employment until October 11 There is also controversy as to what work Rayo said she wanted to perform According to Klein, Rayo indicated she wanted to run the jet press and "did not want to go beyond that point " Rayo testified she told Klein she worked on the jet press and stuffed mail Klein admitted looking at her application which sets forth that she "operated jet press and stuffed mail " Sheppard testified that Rayo was applying for her job back as a jet press operator and they told her nothing was available on the jet press, at which point Rayo said she was glad as she wanted to take a week or two off Sheppard also testified that Rayo said she had previously done a little work on "fulfillment" when there was no work on the jet press Rayo testified Klein told her they had no work on the jet press and they were not hiring then Rayo went on strike at its inception March 11 I have concluded as set forth, supra, that the strike was economic in nature until after the certification when it became an unfair labor practice strike At the time of her application, Rayo was, therefore, an unfair labor practice striker and entitled to replace any persons employed after she became an unfair labor practice striker In addition to the unfair labor practice striker concept, the General Counsel appears to be relying on some theory that Respondent, because of union animus, declined to reinstate Rayo In either case, the issue may be resolved on the basis of work availability The General Counsel contends that there was work available for Rayo First, he would argue that she should have been reinstated at least as of October 1 I The General 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel bases this on production work records of four employees6 showing between October 4 and 16, a minimum of 111 hours work of a total actual working time of 269 hours, which was performed on hand or hand- related work such as the General Counsel claims Rayo could perform 7 Sheppard also testified that Rayo would have been into the "fulfillment" or table work if work had been available There is substantial testimony as to the types of table or handwork and some contention by Respondent that Rayo could not have performed them all However, I would find from the record that she had performed and was capable of performing hand stuffing and certain related work There were four employees then working on such work who were hired after the strike commenced Dons Tuftes, employed April 5, Lemay, employed June 22, Ann Nieve, employed May 17,8 and Debra Young, employed in June All the foregoing dates were prior to the certification and the time when the strike became an unfair labor practice strike Accordingly, Respondent was not required to reinstate Rayo unless there was other work available which she could perform, in addition to that performed by those named above 9 The record reflects no other comparable work available at that time On October 20, Rayo was offered work by Respondent, which she declined The foregoing would appear to obviate the necessity for considering any issue as to Respondent's alleged animosity toward Rayo as to which General Counsel offered substantial evidence I note in this connection that O'Brien, who performed different work, was reinstated, and that O'Brien and Rayo appear to have been two of the activists on the picket line, with O'Brien performing functions of a picket captain There is also testimony that Respondent's officials had evidently seen both O'Brien and Rayo on the picket line on numerous occasions, that they had been on the picket line daily throughout most of the strike and that on one occasion, while she was picketing Zavieh had called Rayo a profane name Zavieh denied the latter There is also extensive testimony as to an alleged incident when O'Brien and Rayo were picketing O'Brien was looking in the plant through binoculars from the street and Zavieh became disturbed about it Zavieh had a discussion with O'Brien and Rayo at which certain conduct allegedly occurred which I consider unnecessary to discuss or consider Apparently near the end of the incident, according to Zavieh, Rayo said, "You wait and see what we are going to do to you " Zavieh admitted he responded "I don't give a F what you are going to do " None of the above affects the availability of work which Rayo could perform except if she were to replace employees whom she was not entitled to replace I accordingly find the Respondent did not violate Section 6 Tuftes Lemay (Lamay) Young and Ann Nieve 7 The General Counsel also points out no timecards were found showing work performed in other departments and contends it is reasonable to assume that they spent upwards of 200 hours in handwork 8 Geraldine Nieve, hired August 25 performed typing and mailing 9 See Philip Carey Mfg Co 140 NLRB 1103 at 1106 The Board there stated We have found, however, that the strike was an economic one until December 28 1960 Accordingly the Respondent was free to replace strikers up to that time and was under no obligation to reinstate any strikers who had been replaced before December 28 8(a)(3) of the Act by not offering to reinstate Lowell Rayo until October 20 10 E Additional Alleged Violations of Section 8(a)(1) 1 Allegations of promised promotion to Vitue In addition to the violations of Section 8(a)(1) found above by Respondent's stating it would never negotiate and also by requiring strikers to withdraw from the Union before considering their reinstatement, the General Coun- sel charges numerous other violations One relates to certain conduct occurring in January which is not alleged and which would require the establishment of a successor- ship relationship However, as background, I am consider- ing this In January, according to Shiels, Zavieh asked her to talk to Vitue and find out whether or not he supported the Union Vitue testified that during the week of January 17, he was called into the office of Shiels, who asked him how he felt about the Union Vitue said he really had mixed emotions and Shiels asked him whether he realized the problems the Union would cause He replied that he didn't Shiels then told him that if they were busy in one department and needed help from another, that the Union wouldn't allow this transfer of employees so that, if one department was slow and they were busy, she would have to lay those people off and get extra help 11 According to Vitue she then said if they could only find out who the troublemakers were, they wouldn't be there any longer Vitue responded to Shiels, "Well, do you have any idea9" to which Shiels replied, "No, but I wish that we did because they wouldn't be here " According to Shiels, the first time that Zavieh talked to her, she didn't feel there was any reason to be concerned because Vitue was "the only one that came in very upset about the phone calls that he was getting from the union " At the end of the above conversation, according to Vitue, he overheard Zavieh speaking to Shiels Zavieh asked "Did you speak to him9" and Shiels replied "yes " About the week of February 1, the printing department supervisor, Hood, had quit According to Vitue, Shiels called him in the office and said, "Well, do you want his job9" and Vitue said, "Yes, I think I can handle it " She then said, "Good You can have his job, but we will hold off on the actual formal announcement until after the formal election " According to Vitue, this was because they wanted to have his vote Shiels asked if he had had any luck in finding out who the troublemakers were and he said, "I didn't realize that I was supposed to " Shiels replied, "If we only knew who they were, they wouldn't be here We could get rid of them and this Union problem " His wage rate at the time was $4 50 an hour and it 10 There is extensive testimony as to Rayo s activities which I deem unnecessary to consider in view of the above finding I also therefore find it unnecessary to resolve whether or not Rayo clearly manifested her availability for work prior to October 20 so that Respondent could not have reasonably misunderstood ii In an affidavit Vitue gave he used the word could instead of would with respect to layoffs Since this conversation is used only as background and I am post finding a subsequent violation of a like threat it is unnecessary to resolve which word was used in the above context SMITH COMPANY OF CALIFORNIA, INC remained the same after the conversation About a week before the election, Vitue went in the lunchroom and was asked by June O'Brien whether he would like to be shop steward Marilyn Shiels walked in about that time and 10 minutes later called him to the office and inquired what the women had been talking about Vitue told her they offered him the job as shop steward if the Union won Shiels told him that the decision was his and that ended the conversation About a day after the election O'Brien had put up the list of candidates (including Vitue) for steward,12 which Vitue observed During this period Vitue talked with Shiels about his upgrading According to Vitue, Shiels responded by stating, "Oh that's all postponed now we will have to wait until this union matter is all cleared 11 up Shiels denied instructing employees to try to find out who union supporters were but if they volunteered, she would listen and question them politely She denied ever threatening anyone for supporting the Union Respondent claims Vitue was in fact promoted and was a supervisor so that its requests to him could not violate the Act He did perform the supervisory functions that Hood had as supervisor of the printing department, including attending management meetings, assigning work, and determining responsibility for operation of the printing department Employees (including Rayo) regarded him as their supervi- sor Shiels further testified she did not promise any employee a promotion to encourage him to vote against the Union According to Vitue, about February 1, he assumed the duties that Hood had but did not receive his pay I am crediting Vitue's testimony with respect to the conversa- tions concerning promotion and the circumstances relating thereto The General Counsel claims that Vitue was promised a promotion to encourage him to vote against the Union, but he didn't get the promotion Whether the purpose was to retain as an eligible voter, even though a supervisor, a person whom Respondent considered favorable to it, or to promise an eligible voter promotion to supervisor to influence his vote, such conduct violates Section 8(a)(1), and I find Respondent thereby violated Section 8(a)(1) 2 Allegations of threats of anticipatory failure to bargain and of layoffs through departmentalization In addition to the foregoing, at a meeting in the plant on February 11 Paul Smith, Respondent's president, and Shiels addressed the employees Witnesses Earl Norwood, Lowell Rayo, Norman Vitue, Etta Ray, and June O'Brien testified consistently that Shiels said if the Union were selected and a contract secured that Respondent's practice of transferring employees across departmental Imes when work was slow would end and employees would be laid off They further testified consistently that Shiels stated if the Union proposed a contract the employer would reject it and if the Union then made another proposal it would be rejected and this process would go on indefinitely Shiels testified she was responding to questions concern- ing transfer She further testified Well, now, of course when the thing that you started to 779 go in to, about lay-offs, that was asked, but again there was no definite thing We discussed the fact that many times in the union there are specific jobs that they do not have the floating type of employee that this business needs I am sure by this time you are all aware of what the printing and mailing business is You may be very loaded at one part of the plant and very slack in another So you have to have people that you move back and forth I said that I didn't know that, but it was very possible that I had heard of it happening- TRIAL EXAMINER Had heard of what9 THE WITNESS That they would not allow this type of thing That people would have specific titles and categories to work Shiels also testified TRIAL EXAMINER With respect to the matter of the negotiations with the union , do you recall just what you said9 THE WITNESS The only thing that we ever said was that there would be negotiations going back and forth until they agreed on a contract We were asked how long this would take, and I said it possibly could go on for a long time I told them that I didn't know Q (By Mr Teagle) Did you tell the employees that if the union won the election that what would happen is that the union would make demands in these negotia- tions, and that the company would when they received these demands, the company would refuse or deny them9 The union could come back again and the company could deny them, and they could come back again and you would deny them, and that this definitely would go on for over a long time? A No, absolutely not I never said we would definitely deny anything I said it is possible that these things happen I said that negotiations that anybody-that you could read the newspapers and realize that this is the way that negotiations went on That people sometimes, if something is not agreeable , it will be refused Unless it was to the benefit of both of them, it could be put to them that way Smith's testimony essentially corroborated Shiels except he left before the meeting ended I have carefully considered all of the testimony While Smith and Shiels may have intended to express themselves a certain way, I conclude from an analysis of both their testimony and that of all of the witnesses for the General Counsel, which latter I find to be generally consistent, that Respondent did state in essence that it would negotiate indefinitely without reaching a contract and also that if the Union were selected that the employees would not be able to transfer between departments and would be laid off when work was slack I recognize the apparent inconsisten- cy involved in testimony that Respondent said it would reject and reject proposals indefinitely and at the same time said that a selection of the Union would result in inability to transfer and layoffs However, such presenta- tions are not uncommon and alternative positions or 12 Vitue was thereafter elected shop steward 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threats do occur Also even though the ultimate control of transfers would appear to be a matter of negotiation (and not rest with the Umon alone), threats of similar losses from Union selection have been found to be violations 13 I accordingly find that by Respondent's statements concern- ing transfer and layoff, as found above, Respondent violated Section 8(a)(1) of the Act 14 I further find that by Respondent's statements concerning its anticipated bar- gaining position, as found above, Respondent violated Section 8(a)(1) of the Act 3 Allegations of unilateral adoption of no smoking, eating, and drinking rules It was further alleged that the Respondent introduced certain no smoking, no eating, and no drinking rules following the election which had never been in effect before Respondent's President Smith testified that prior to his Company taking over on February 1 there had been signs posted that said "no smoking" and memos had been issued telling employees not to take coffee out of the coffee room and not to eat in unauthorized places Smith said "However, there had been no discipline or no real follow through with these rules, and when I came in I said that we had to start enforcing these rules " Smith further testified THE WITNESS That is right There was a huge no smoking sign in the plant, but it hadn't been enforced Smith explained the reason for the rules as follows Q (By Mr Teagle) What is the reason for this rule that you have testified that your company has always had regarding smoking and eating, and so forth in the work areas? A Our plant has always handled material that were very flammable I have never had a serious fire in a plant that I have been in, but I have had friends who have had serious fires, and I realize the danger of fire and the danger of liquids being spilled on customers' material I have seen a cup of coffee spilled across a piece of art work that had completely it, and it cost hundreds of dollars to replace it I have seen other careless acts that have cost the company money, and we couldn't afford this Smith testified he gave the order to Mrs Shiels to enforce the no smoking or eating or drinking in the work areas Smith said A I did not implement the order I gave the order to my supervisor, Mrs Shields, and expected her to do it And I don't know how she did it I gave her the responsibility Smith added he didn't know how or when this was done and was asked Q Do you have any idea when the employees were notified of the change of position, that is, specifically as to smoking, eating or drinking coffee9 A No Vitue testified he had seen several no smoking signs before the election as well as 2 or 3 days thereafter It appears clear from the record that because of the use 13 See Superior Press Inc 148 NLRB 406 fn 2 14 It is accordingly unnecessary to find whether or not Shieis separately threatened departmental layoffs when speaking to Vitue of fluids and in some instances paper, around the presses there is substantial danger of fire With respect to no eating and drinking rules it is evident that insofar as they may have been enunciated they had not been enforced prior to the election There is also testimony that coffee was consumed in some areas and still is A rule against smoking where fire danger is present certainly should not only be permitted but required I accordingly can and do find no violation from its renewed application While eating and drinking rules may be adopted in the interests of saving costs and of avoiding customer problems, I find that their unilateral adoption or reintroduction by Respondent, following the election, without bargaining with the Union was a violation of Section 8(a)(I) and (5) of the Act i5 4 Allegations as to elimination or reduction of overtime The General Counsel also alleges that by eliminating certain overtime after the election the Respondent violated Section 8(a)(l) of the Act It appears that there was a reduction of overtime However it is also evident from the testimony of Smith and Zavieh and Klein that the business of the Respondent was in considerable financial difficulty, requiring cost cutting and saving Also Klein testified credibly that the workflow in the plant was spasmodic, varying from day to day and that both the amount of work from customers and the particular work customers wanted performed by Respondent vaned Vitue testified that Shiels eliminated overtime after the election and that certain printing work was sent to other printers, particularly naming one The evidence as to overtime establishes that a reduction did occur after the election First, it is evident that the Respondent's work process was spasmodic Second, an employer is entitled to reasonably minimize costs provided the purpose is not to prevent or in reprisal for union organization There is no evidence that such was to prevent organization In view of the Company's financial position and the spasmodic nature of the business, I conclude that the General Counsel has not established that any reduction of overtime was because of or in reprisal for union organization Under certain circumstances such as where overtime is shown to be a regular and consistent condition of work, there may, following an election such as here, exist an obligation to bargain before unilaterally changing it Such has not been shown to be the case herein I accordingly find that by reducing overtime Respondent did not violate Section 8(a)(1) of the Act as alleged 5 Allegations as to interrogation by John Vanek John Vanek according to Earl Norwood, in the presence of June O'Brien, asked him whether he had signed an authorization card during February Norwood replied that he did not know June O'Brien also testified that Vanek asked her about the Union The Respondent contends that Vanek was an employee while the General Counsel asserts 15 See King Radio 166 NLRB 649 at 651, 652 and see Laney & Duke 151 NLRB 248 266 SMITH COMPANY OF CALIFORNIA, INC he was supervisor of the inserting department According to employees Earl Norwood, Etta Ray, and June O'Brien, Vanek assigned them work Norwood and O'Brien testified that Vanek told them whether to work overtime or not and also granted or authorized time off Norwood said that Vanek told him he was going to fire employee Fanel and did so and that Fanel also told him the same thing June O'Brien testified that Mrs Shiels, plant superintendent, told her that Vanek was her supervisor at a time when it was still the Republic Company Vanek did not testify it appears from the foregoing testimony, which I credit, that Vanek was exercising the functions of a supervisor in assigning work, granting overtime and effecting termina- tion and that at one time Shiels had told O'Brien that Vanek was a supervisor While the latter was prior to February 1, there is no evidence indicating any change thereafter In addition, as to O'Brien it also appears that since Shiels held Vanek out to be supervisor she could justifiably assume that Vanek was a supervisor (whether he was or not) Accordingly Vanek's interrogation of O'Brien would be improper and a violation of 8(a)(1) 16 However, I find from the record that Vanek was a supervisor and that by his interrogation of Norwood as well as O'Brien, Respondent violated Section 8(a)(1) 6 Allegation of threat to have picketer arrested by the FBI Lowell Rayo testified that while on the picket line Vitue said something to Zavieh about negotiating and that Zavieh responded, "and he said he was going to have him arrested-to call the FBI because he was an alien and he had no business picketing there " Zavieh admitted telling Vitue about the possibility or probability of arrest by the FBI but placed it in a different context According to Zavieh he had parked his car one morning after it had been slashed Vitue approached him and said "I am glad to see what they have done to your car " Zavieh asked "why?" to which Vitue replied "my car could be next " According to Zavieh he then said, "That is your problem " Vitue replied, "You bring your one month old child here It is pretty dangerous They may do something to her, too " Zavieh testified he then said, "That's a matter of the FBI to decide on " Zavieh elaborated in more detail on the foregoing 17 In the circumstances set forth above I conclude that the General Counsel has not supported the allegation of the complaint that Zavieh threatened employ- ees with arrest by the FBI because of their picketing of Respondent's premises I accordingly shall recommend dismissal of that allegation IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I have a close, intimate and substantial relation to trade, traffic, and commerce among the several States and tend to encourage labor 16 See International Association of Machinists etc v N L R B 311 U S 72 17 I note that there was a state court injunction obtained during the 781 disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices , I shall recom- mend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act It will be further recommended in view of the nature of the unfair labor practices the Respondent has engaged in that it cease and desist from infringing in any manner upon the rights guaranteed employees in Section 7 of the Act Upon the basis of the foregoing findings of fact and conclusions and upon the entire record in this case, I make the following CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of the Act 2 The Union is a labor organization within the meaning of the Act 3 All production and maintenance employees, includ- ing delivery truck drivers of Respondent, excluding all other employees, office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 8(a)(5) and (9) of the Act 4 On August 27, 1971, and at all material times thereafter the Union has represented a majority and has been the exclusive bargaining representative of all the employees in the aforesaid appropriate unit for purposes of collective bargaining within the meaning of Section 8(a)(5) and (9) of the Act and Respondent on that date was and has since been obligated to recognize and bargain with the Union as such 5 By refusing thereafter, upon request, to recognize or bargain with the Union for the employees in the above- mentioned appropriate unit, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 6 As found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act (a) By interrogating employees (b) By threatening that it would never reach agreement with the Union or negotiate with the Union (c) By threatening that selection of the Union would result in inability to shift or transfer employees between departments thereby causing layoffs when work would be slow (d) By requiring employees to resign from the Union as a condition for reinstatement (e) And by violating Section 8(a)(5) by unilaterally imposing rules as to eating and drinking on the premises strike relative hereto Also that the Union entered into a settlement agreement in another Board case Case 20-CB-2541 following charges and a complaint therein 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without prior consultation with the Union following the election held February 17, 1971 7 The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 8 As found above, Respondent has not engaged in any other unfair labor practices within the meaning of the Act Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case and pursuant to Section 10(c) of the Act, I hereby issue the following recommended is ORDER It is recommended that Smith Company of California, Inc, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating employees concerning union member- ship and activities (b) Threatening employees that it would not reach agreement with or negotiate with the Union (c) Threatening employees that selection of the Union would result in inability to shift or transfer employees, and cause layoffs when work was slow (d) Requiring employees to resign from the Union as a condition for reinstatement (e) Unilaterally adopting or changing rules as to eating, drinking, and like working conditions without prior consultation and negotiation with the Union (f) Refusing upon request to recognize and bargain with Printing Specialties and Paper Products Union Local No 362, International Printing Pressmen and Assistants' Union of North America, AFL-CIO 18 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board the findings, conclusions and recommended Order herem shall as provided in Section 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and Order, and all objections thereto shall be deemed waived for all purposes 19 In the event that the Boards Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading Posted by (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Post at its business offices and meeting halls, copies of the attached notice marked "Appendix "19 Copies of said notice on forms to be provided by the Regional Director for Region 20, shall, after being duly signed by representatives of the Respondent be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material (b) Mail to the Regional Director for Region 20 signed copies of said notices for posting by Smith Company of California, Inc, if willing, in places where notices to employees are customarily posted Copies of said notices to be furnished by the Regional Director for Region 20 shall after being duly signed by the authorized representative of Respondent, be forthwith returned to the Regional Director (c) Notify the Regional Director for Region 20 in writing within 20 days from the date of this Decision what steps Respondent has taken to comply therewith 20 IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects Order of the National Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 20 In the event that this recommended Order is adopted by the Board after exceptions have been filed this provision shall be modified to read Notify the Regional Director for Region 20 in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith