Prince Lithograph Co., Inc.

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prince Lithograph Co., Inc. and Local 285, Graphic ommended Order. Arts International Union, AFL-CIO-CLC,' succes- sor to Local 13-L, Lithographers and Photoengrav- ers International Union, AFL-CIO-CLC. Case 5-CA-5601 July 30, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 26, 1972, Administrative Law Judge John F. Funke issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Prince Lithograph Co., Inc., Fairfax, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- i Effective September 4, 1972, Lithographers and Photoengravers Interna- tional Union and International Brotherhood of Bookbinders merged to form Graphic Arts International Union 2 Unlike our dissenting colleague, we do not view the situation as one of a unilateral change in working conditions. Instead, like the Administrative Law Judge (and for the reasons given by him), we think the more realistic view to be that Respondent was merely replacing an employee who engaged, at the instance of the Union, in a partial strike by participating in a concerted refusal to work overtime Such activity, as the Administrative Law Judge below found, gives rise to a countervailing right of the Employer to utilize replacements in order that the necessary work may be performed That was done here, and we perceive no violation of the Act to have resulted 3 On November 9, 1972, the Charging Party filed a motion to reopen the record to admit newly discovered evidence as to the current employment status of Leroy Keen. This evidence consists of an affidavit by John M Greer, president of the Union On November 22, 1972, the Respondent filed ( 1) a motion in opposition to the Charging Party's motion and (2) its motion to reopen the record for the purpose of receiving an affidavit of Marius D. Prince, president of Re- spondent. Since these documents relate to alleged conduct of the parties which may be relevant only at the compliance stage, if at all, we deny both motions as lacking in merit. MEMBER JENKINS, dissenting in part: Unlike my majority colleagues, I would find that Respondent's replacement of employee Keen because of his refusal to work overtime was unlawful in the circumstances of this case. Keen, the acting shop steward, was terminated on May 19, 1972,4 because of his refusal to work overtime on May 11 and 12. It is'undisputed that Keen's refus- als were pursuant to a union directive banning over- time work and that Keen was the only employee asked to work overtime on those dates. At the time of these refusals, the Union was attempting to negotiate a new collective-bargaining agreement with the mul- tiemployer group with which Respondent is associat- ed. The parties were eventually successful and a new agreement was executed on May 19. The prior collec- tive-bargaining agreement had expired on April 30. Both the old and new collective-bargaining agree- ments grant employees the right to refuse to work overtime by virtue of the following provisions: Section 31. Overtime shall be permitted when necessary, but the refusal of any or all employees to work overtime shall not be deemed a breach of contract, nor shall any employee be disci- plined or discriminated against for refusal to work overtime. If overtime is to be worked on a regular work day, notice shall be given previous to the lunch period of the day on which such overtime is to be worked, except in the case of emergency. Obviously, if Keen's refusals to work overtime had occurred prior to April 30 or after May 19, my col- leagues would have no difficulty in concluding that Keen was exercising a protected right under the con- tract for which he could not be lawfully terminated. But should a different result obtain merely because Keen's actions occurred during the brief hiatus be- tween these two collective-bargaining agreements? I think not. The contractual right to refuse overtime like any other benefit under the contract is a term or condition of the employment and is not automatically extinguished at the expiration date of the agreement. These existing terms and conditions of employment may not be altered or varied by an employer's unila- teral action.' Here, there was no extensive bargaining table dis- cussion of the overtime provision and certainly no evidence that the parties ever were at impasse over ° Unless otherwise indicated, all events occurred in 1972. S N L R B v Katz, 369 U S 736 (1962) 205 NLRB No. 23 PRINCE LITHOGRAPH CO. this issue. The only reference to this issue being raised during the negotiations is found in Union President Greer's testimony that the employer group suggested that the overtime clause be qualified by adding the phrase, "having justifiable reason for refusing over- time." According to Greer's testimony the Union re- jected the suggestion and the clause was thereafter left intact. Thus, it is clear that Respondent's action was not pursuant to bargaining table discussions with the Union and constituted a unilateral withdrawal of an existing term and condition of employment. In such circumstances, I view the employees' con- tractual right to refuse overtime work as remaining as a term and condition of employment after the expira- tion of the collective-bargaining agreement on April 30. Thus, when employee Keen refused to perform overtime work on May 11 and 12, he was asserting the right to an existing employee benefit achieved by the Union on behalf of himself and fellow employees, and as such, was engaged in protected concerted activities. The termination of an employee for engaging in pro- tected concerted activities is unlawful under the Act 6 and when, as here, the activities relate to a condition achieved by and currently supported by the union, the discharge plainly serves to discourage union member- ship and violates Section 8(a)(3) of the Act. I would so find. In all other respects, I join in the conclusions reached by my colleagues. 6 Bunny Bros Construction Company, 139 NLRB 1516 DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Administrative Law Judge: This case was brought before the National Labor Relations Board upon: 1. Charges filed by Local 285, Lithographers and Pho- toengravers International Union, AFL-CIO, etc., herein Local 285, against Prince Lithograph Co., Inc., herein Prince, alleging Prince violated Section 8(a)(1) and (3) of the Act. Said charge and amended charges were filed May 8, May 12, June 5, and June 29, 1972, respectively. 2. Complaint by the General Counsel alleging Prince vio- lated Section 8(a)(1) and (3) of the Act issued June 30, 1972. 3. Answer denying the commission of any unfair labor practices, filed September 10, 1972. 4. Hearing held before me at Washington, D.C., on Au- gust 14, 1972. 5. Briefs received from the General Counsel, Prince, and Local 285 on September 11, 1972. Upon the entire record in this case and from my observa- tion of the witnesses while testifying, I make the following: FINDINGS I THE BUSINESS OF PRINCE Ill Prince is a Delaware corporation having a place of busi- ness at Fairfax, Virginia, where it is engaged in the opera- tion of a lithographic printing plant. In a representative year Prince purchases and receives at Fairfax goods and materials valued in excess of $50,000 which are shipped and delivered to it from places outside the Commonwealth of Virginia. Prince is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED Local 285 is a labor organization within the meaning of the Act. Local 285 was the successor to Local 13-L which was party to a contract with Prince which expired April 30, 1972. III THE UNFAIR LABOR PRACTICES A. The Issues Three issues are presented by the pleadings and the evi- dence: (1) Did a letter of reprimand sent by Prince to employee and shop steward Lloyd Wayne Coppins on May 5, 1972,' discourage his membership in and activity on behalf of Local 285 in violation of Section 8(a)(3) of the Act? (2) Did a layoff of Lloyd Wayne Coppins on May 11 and 12 discourage membership in Local 285 in violation of Sec- tion 8(a)(3) of the Act? (3) Did the termination and/or replacement of employee Leroy Keen on May 19 discourage membership in Local 285 in violation of Section 8(a)(3) of the Act? B. Background Prince was one of 15 employers who were parties to a collective-bargaining contract with Local 13-L, Lithogra- phers and Photoengravers International Union dated No- vember 18 , 1969, and expiring April 30, 1972. (G.C. Exh. 2) It is not disputed that during the term of this contract Local 285 became the lawful successor to Local 13-L and assumed the contract. This contract contained the following clause: Section 31 . Overtime shall be permitted when neces- sary, but the refusal of any or all employees to work overtime shall not be deemed a breach of contract, nor shall any employee be disciplined or discriminated against for refusal to work overtime . If overtime is to be worked on a regular work day, notice shall be given previous to the lunch period of the day on which such 1 Unless otherwise noted all dates refer to 1972 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overtime is to be worked, except in the case of emergen- cy. On May I Local 285 called a meeting of all union mem- bers in the shops covered by the contract and the union members at Prince attended . The shop did not operate that day nor did it operate on May 2. According to the testimony of President Marius (Clink) Prince it did not operate at full scale until Thursday, May 4, because it had been "discom- buberated" and he did not know what the precise situation was. Prince was informed, however, that an "overtime ban" had been put into effect by Local 285. He was officially notified of this by Jack Greer, president of Local 285, on May 3. Under the ban union members were required to refuse overtime work. The ban was lifted on May 20 follow- ing the signing of a new contract between Local 285 and the employer group.2 (The employer group is referred to in the record as the Printing Industry of Washington, or the P. I. W.) C. The Case of Lloyd Wayne Coppins 1. The letter of reprimand Coppins was hired as a night shift stripper in November 1970, and was a member of Local 285. Since January 1972, he had been shop steward for Local 285 except for May 11 and 12 when he was suspended from employment. In April, according to Coppins, he had a meeting with Clink Prince, Ed DeSanto, general foreman, and Ed Gage, foreman, at which the problem of increasing production was discussed and, as a means of accomplishing this, a letter of reprimand system was set up whereby any employee would receive a letter of reprimand and warning for deficiencies on his work. Coppins agreed that the system was fair if fairly administered. On May 4 Coppins returned to work with the other em- ployees. The next day a meeting was called by Clink Prince at the shift change time at which Prince read a letter written by Francis T. Coleman, Prince's counsel, advising the em- ployees that they would have to work a reasonable amount of overtime or they would be replaced.3 At this meeting there was disagreement between the employees and Prince as to the operation of two presses. Prince insisted that one run be made with four operators and a second run would use only two operators. Coppins then went upstairs with Prince (taking two witnesses with him) where Prince told him the presses would run with three operators on each press and at the same time gave him a letter of reprimand. This letter (G.C. Exh. 4) read: The following deficiencies in your performance will not be accepted in the future- 1. Tardiness 2. Not working 7 complete hours 3. Telephone abuse 4. Mistakes on jobs in the past have been over- looked; will not be in the future 2 Prince did not sign this contract until shortly before the hearing 3 Resp Exh I 5. Taking work out of the plant definitely will not be excused or tolerated in the future 6. Not conforming with our methods and proce- dures in the Prep Department , such as a) not filling out time cards, b) not placing jobs in folders, c) not com- pleting jobs properly, d) not giving your full time and attention, either to your work or to your supervisor If all these points are not improved upon we will have no other alternative but to dismiss you. Coppins asked if he was the only one to receive such a letter and was told that Lester Thompson, his predecessor as shop steward, was receiving one too. Thompson was then called in and given his letter of reprimand. (Not offered in evi- dence.) Coppins was examined in some detail as to the charges contained in the letter of reprimand. Tardiness. Coppins testified that he had been tardy three times in the 6 months prior to the receipt of the letter. Twice he had a flat tire on the Beltway while driving to work and once he reported late because he was working the morning shift after working his night shift and had overslept. Prince offered no testimony to support this charge. Not working a complete 7 hours. Coppins testified that when work was slow he would ask Barham, stripping room foreman, or DeSanto, if he could leave early and was always given permission until May 4. On that night he attended a meeting of all shop stewards in the P.I.W. He did not report until 10 p.m. but told Barham he would work 7 hours to complete his shift. He worked only 6-1/2 hours because his wife had to leave home to work and he had to return to babysit.4 Telephone abuse. Coppins testified that after he became shop steward he usually called by Local 285 when he report- ed at 3:30 but that he was never reprimanded for these calls. (His testimony is not clear as to whether he was called every night after becoming shop steward or every night after the expiration of the contract. The latter seems more probable.) Mistakes. The testimony is not too clear. Coppins admit- ted to one mistake which cleared inspection but stated it was after the May 5 letter of reprimand. One other mistake which Coppins deemed to be more than minimal occurred 4 to 6 months prior to the letter. Prince offered no testimony as to this charge. Taking out work. Coppins testified that on one occasion (some months prior to the letter) he was confronted with a job he did not know how to handle and called Barham who told him to do the best he could. Coppins then took the work to a former stripper and shop steward named Danny Ad- ams, who lived nearby, who helped him with it. The next afternoon when he reported he told Barham what he had done and Barham "got rather hot about it" but did not report the incident to DeSanto. Again there was no testimo- ny from Prince. Failure to file timecards. The employees were required to fill out timecards for each job and Coppins admitted that he frequently did not have time to fill them out. After receiv- ing the letter he testified that he checked Barham's work and Other testimony, infra, indicates that this tardiness on May 4 may have been a vital factor in issuing the reprimand Barham, directly concerned, was not called as a witness PRINCE LITHOGRAPH CO. found that he too did not always fill out his cards. There was no testimony from Prince as to this charge. Not placing jobs in folders. Coppins testified that (again the time was fixed as 5 or 6 months ago) he had been reprimanded for not keeping his work in folders and that since that time he had complied with the order. No testimo- ny from Prince. Not completing jobs properly. Coppins' explanation is un- clear to me. He stated: Mr. Barnham told me that he wanted the jobs that I had worked on left in the morning so that he could walk in and do them, which is almost an impossible thing to do. I explained to him at the time that he could not ask any of his other strippers to do the same thing. You just cannot leave work, and do the number of jobs I had to do at night. No testimony from Prince. Not giving your full time and attention, either to your work or your supervisors. Coppins did not know what that meant since he had no supervision at night. No testimony from Prince. With respect to this letter Clink Prince testified that the charge respecting the telephone calls was a matter of his personal knowledge since he was frequently at the plant after the receptionist left and that Coppins received an "abundance of calls." Prince assumed they were personal since there was no one to handle business calls at night. As to the other charges Prince stated he relied on Barham for his information, that he, Barham, and DeSanto talked it over on May 5 and he delivered the reprimand to Coppins that night. In April he decided to keep a reprimand file on employees since he felt that the quality of the work in the plant had deteriorated and the reprimand letters would be used to keep them in line. DeSanto testified that the letter of reprimand given to Coppins on May 5 was the result of an altercation between Coppins and Barham on the night of May 4 in which, appar- ently, heated words were exchanged. DeSanto did not testi- fy that he was present and he could not remember why the altercation was not mentioned in the letter.5 2. The suspension of Coppins Coppins was the junior of three strippers in the shop, excluding Barham, the stripper foreman. He had returned to work on May 4 and through May 10. On the evening of May 10 he was told by DeSanto that there was not enough work in the shop and that he would be laid off on Thursday and Friday, May 10 and 11. Coppins was surprised because there was screen tinting to be done on a Common Cause job. He received his pay for these 2 days but they were deducted from his vacation time. Coppins, on cross-examination, tes- 5 Coppms did not testify to any dispute with Barham on the night of May 4 so whether the dispute was occasioned by Coppins' failure to report until 10 p in is not known Clink Prince also testified that the letter was directly responsive to whatever incident occurred on the night of May 4 between Barham and Coppins Why so many charges were incorporated if the letter was provoked by a single incident is not explained 113 tified that some of his work was performed on jobs which were obtained by Mr. Wacher, a sales representative, some was on work left over by the day shift and the balance on other jobs not described. Clink Prince testified that during the period of the over- time ban, approximately 3 working weeks, Prince had to reject orders because it could not get the work out on sched- ule. On Friday, May 5, Wacher came to him and told him he would take off the following week because he had had to turn down two rush orders from Common Cause and saw no sense in working if he could not get the jobs done. Wacher took off May 10, 11, and 12. Wacher usually brought his work to the shop after the day shift had gone and Coppins usually, according to Prince, worked on these jobs. At the same time another stripper, Williams, employed on the day shift was laid off for 1 day, May 12, which was also charged against his vacation pay. DeSanto testified that the only reason for Coppins' layoff was a lack of work due directly to the fact that Prince could not accept rush orders and Wacher was not seeking orders on May 10, 11, and 12. D. The Case of Leroy Keen Keen was employed by Prince as a platemaker from Oc- tober 1, 1967, until he was terminated on May 19, 1972. He was also a member of Local 285 or its predecessor during that time and had been a shop steward at Prince for 2-1/2 years .6 He did not, however, participate in the organiza- tional campaign which resulted in a Board election and the certification of the Union. Keen attended the meeting of union members called on May 1 and did not work that day, nor did he work on either May 2 or 3. On May 5 the letter to employees respecting the overtime ban was read to all employees. On May 11 Keen was aked by DeSanto to work overtime and he refused and he refused again on May 12. Later that day DeSanto and Clink Prince told him he had refused to work a reasonable amount of overtime and was being let go. At the same time he was given a letter (G.C. Exh. 3) which read: On Thursday, May 11, you were asked to work over- time and you refused, and on Friday, May 12, you were again asked to work overtime and you refused. As we stated to all employees on Friday, May 8, those people who refuse a reasonable amount of overtime when necessary will be replaced. Because of this refusal you are hereby notified that your services will no longer be required at the end of work on Friday, May 19. Clink Prince testified that after the imposition of the over- time ban by Local 285 his attorney prepared a letter which Prince read to his employees on May 5, omitting those 6 Keen testified that at the time of his hiring Clink Prance, in the presence of his brother, known as Wink Prince, told him there might be a problem since Keen was a union member Keen said he was hired after he agreed to abstain from voting in any representation election He also testified that he had disagreements with management while he acted as shop steward, which would not be unexpected Keen quit as shop steward in March 1971. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portions on page which are in parentheses and emphasizing those portions on page 2 which are underscored. In full this letter (Resp. Exh. 1) read: Dear Employees: As you know, the contract between the LPIU Local No. l3-L and the Printing Industry of Washington expired April 30, 1972. As of this time, no new contract has been reached. Prince Lithograph is a member of Printing Industry of Washington for purposes of collective bargaining, and as of the present we are bound by their negotia- tions. We tried to withdraw from PIW for bargaining purposes, and bargain with Local No. 13-L of the LPIU on an individual basis, but the LPIU refused to agree to this procedure. Consequently, at the present juncture, both our company, and you, our employees, are bound by whatever the results from the PIW-LPIU negotiations. We want to make one thing very clear to you, howev- er Even though no contract has been reached to re- place the one that has recently expired, we still have a business to run and customers to service. (We expect that as long as you are working for us that you will put in a full day's work for a full day's pay. We are paying good wages and have good fringe benefits, and we expect an honest day's work.) As a result of your union-called holiday on Monday, the company production schedule was (seriously) dis- rupted, necessitating that production be shut down on Tuesday, and the scheduling of only one crew on each shift on Wednesday. We now have work available for our entire employee complement, providing we can be assured of continuous operation. However, we are in no position to play cat and mouse games with you at this point as to when you will choose to work and when you won't. There is work to be done, and we are de- termined to see that it gets done. Consequently, we are calling back all employees to work on a full time basis from this point forward. Our scheduling may be such as to entail overtime work when the need arises, al- though we do not have any overtime commitments at the moment. When this occurs, we expect this need to be met by our employees. In effect, what we are saying is-there is work here to be done, and we expect you to perform it. If any of you are unwilling to perform regular work, including over- time, when available, we are determined to hire replace- ments and obtain employees who will perform, as is our right under the law. We hope that you will realize the seriousness of the situation, and will cooperate with us in putting our Company on a regular production schedule. There is much to be gained by working together. The economic future of you and the company is at stake. We do want you to understand, however, that we expect your full coop- eration during this period of time. 1f this cooperation is not forthcoming, we will have no alternative but to seek em- ployees who are interested in our work and helping us meet our goals. Thank you very much. Prince testified that in the event the overtime ban was continued the company was prepared to hire replacements for the union members refusing to work overtime and that advertisements (G.C. Exhs. 5 and 6) were placed in the Washington Post and the Washington Star on Sunday, May 7. On Monday, May 8, a Mr. Coxon, who had retired from the Army Map Service as platemaker, called and said he was available starting May 22. After Keen refused to accept overtime Coxon was hired and reported on May 22. Renaldo DeSanto testified substantially in support of Prince's testimony. He added that on June 22 another letter was sent to Keen (Resp. Exh. 2) advising him that his termi- nation was not final, that he was being put on a preferred hiring list and would be offered reemployment provided he would be willing to meet his assigned schedule. Keen had not been reinstated at the time of the hearing. E. Conclusions 1. Coppins I find the letter or reprimand issued by Prince to Coppins on May 5 constituted coercion and restraint and therefore violated Section 8(a)(1) of the Act but that it did not consti- tute discrimination in regard to hire or tenure of employ- ment or any condition of employment within the meaning of Section 8(a)(3) of the Act as alleged in the complaint. Since the issue was fully litigated I do not feel precluded from reducing, in effect, the substance of the charge. This finding is based on the simple fact that a threat of discharge upon accusations almost totally unsupported by any evidence constitutes harassment of any employee. In this instance the letter was, as both Clink Prince and De- Santo admit, provoked by an altercation between Barham and Coppins on the preceding night. Since Prince offered no testimony as to the nature of this altercation it must be assumed that it related to Coppins' failure to report until 10 p.m. and/or his attendance at a meeting of shop stewards that night. Prince offered no testimony, however, to show that his failure to report until 10 had any adverse effect on its production for that night. Under these circumstances I must infer that the letter was provoked by his union activity and not by the alleged but unsupported claims of dereliction in his duties. The threat of discharge for failure to correct deficiencies which have not been established is well calcu- lated to make an employee believe that the true motive lies elsewhere. In Coppins' case it could only lie with his union activity. As to the suspension of Coppins I reach a different con- clusion. The testimony of Clink Prince and DeSanto that there was not sufficient work for him on May I1 and 12 is r Why the General Counsel alleged this as a violation of Section 8(a)(3) passes my understanding It is true that any coercion or restraint exercised by an employer against an employee for engaging in union membership or activity will inevitably discourage union membership but the Section is spe- cific as to the conduct outlawed and not all-inclusive All Section 8(a)(3) violations are derivatively in violation of Section 8(a)(l) but the converse is not true The best that can be said for the General Counsel's construction of the Section is that it is in keeping with the bureaucratic tradition of finding a respondent guilty of as many violations of as many sections of the statute as possible regardless of the absence of effect on the remedial order PRINCE LITHOGRAPH CO. entirely plausible in view of the situation then prevailing. I credit their testimony that the overtime ban had reduced their ability to handle orders which required rush treatment and Wacher's voluntary taking off on May 10, 11, and 12 would have necessarily reduced the amount of stripping to be done. It does not follow that because I have found the reprimand issued Coppins an unlawful infringement on his statutory rights that every adverse action taken against him was likewise unlawful. But even though this suspension may be viewed with suspicion, suspicion is not enough, to em- ploy a timeworn but useful cliche. 2. Keen Keen was replaced as a platemaker on May 22 because of his refusal to work overtime. This refusal was part of a concerted refusal on the part of Local 285 members to work overtime during contract negotiations with the P. I. W., and it is admitted that this refusal was at the direction of Local 285. Such a partial refusal to work is unprotected activity for which an employee may be discharged. (First National Bank of Omaha, 171 NLRB 1145, 1149, 1150.) LThe first issue present is whether the contractual right of employees to refuse overtime work exempts their conduct in this case from that proscription. I hold it does. In Local No. P-5 75, Amalgamated Meat Cutters & Butcher Workmen of North America (Iowa Beef Packers, Inc.), 188 NLRB 5, the Board that the refusal of employees of neutral employers to perform overtime work which they had the right to refuse under their contract, constituted an unlawful attempt to cause the neutral employers to cease doing busi- ness with Iowa. In the Iowa case the contractual provision relied upon by respondent union read: All overtime work before 7 a.m. is voluntary. The Board disposed of this contractual right by stating: That the overtime was voluntary does not, in our view, render the concerted refusal to perform it any less a strike, or less coercive, particularly where, as here, the uncontradicted evidence shows that it had been the employees' practice to perform overtime during these hours for 5 years at New York, and for 5 years at Kelly. In the instant case the purpose of the strike was not, as in Iowa, unlawful but I do not think that distinction control- ling. If an overtime strike, protected by a voluntary right to refuse overtime, for an unlawful object constitutes a viola- tion of the statute it would appear to be equally true that an overtime strike to bring economic pressure against a primary employer is unprotected despite the same contrac- tual provision. There are two other distinctions however, which might be made between this case and the Iowa case.[In the instant case the contract specifically protected the right of any and all employees to refuse overtime against discipline or discri- mination. Thus the right might be exercised either individu- ally or in concert as the employer group well knew. Nor was this right limited by any language which could be construed 115 by the employer group as exempting strike situations from its exercise. The P. I. W., from past history, understood this because again, unlike Iowa, the employees had utilized this weapon in the past during negotiations. Greer, without contradiction testified as follows: Q. (By Mr. Hopson) Mr Greer, could you tell me something about the overtime ban? Is this the first time it has been imposed or used? A. No, sir, ever since I have been in office, for the last 11 years, it has been used in negotiations, and it was utilized this time. Greer also testified that during the 1972 negotiations the P. I. W. suggested that the words "having justifiable reason for refusing overtime" be inserted to qualify the overtime clause. This suggestion was rejected by Local 285 and the clause was left intact in the new contract. Thus it is clear that the parties to the agreement, expiring April 30, under- stood that the clause might be used, as it had in the past, as an economic weapon during negotiations) I think that these distinctions sufficient to override the considerations which led to Iowa. When responsible em- ployers, grouped for their own protection and represented by counsel, sign an agreement with the full knowledge that its purpose is to grant Local 285 additional leverage in bar- gaining I doubt that the Board as a matter of public policy should ignore the agreement. I do not think that public or Board policy requires that the Board must subordinate the rights of employees to bargain for their own protection to the right of employers to be relieved of the hazards of a partial strike.i therefore hold that the employees, in exercis- ing this right, did not engage in unprotected activity. I find, nevertheless, that Prince had the right to replace Keen as it had the right permanently to replace any other striker for refusing to work. The evidence, particularly Gen- eral Counsel's Exhibit 3 and Respondent's Exhibit 2, estab- lishes that Keen was not discharged but that he was replaced and retained on a preferential hiring list. This Prince was entitled to do and all it was required to do. I therefore find that the replacement of Keen for refusa^l^ to work overtime did not violate Section 8(a)(3) of the Act.!] Upon the foregoing findings and upon the entire record in this case I make the following: CONCLUSIONS OF LAW 1. By issuing a letter of reprimand and warning to an employee to coerce and restrain him in the exercise of the rights guaranteed by Section 7 of the Act, Prince violated Section 8(a)(1) of the Act. 2. Respondent did not violate Section 8(a)(3) of the Act. 3. The aforesaid unfair labor practice is an unfair labor practice within the meaning of Section 2(6) and (7) of the 8 1 find no inconsistency between the replacement of Keen for refusing to work overtime and the suspension of Coppins for lack of available work One of the reasons work was not available was the refusal of the employees to work overtime 116 Act. DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Prince engaged in a certain unfair labor practice it will be recommended that it cease and desist from engaging in the same and take certain affirma- tive action. It will be recommended that Prince rescind its letter dated May 5 directed to Lloyd Wayne Coppins, reprimanding and warning him for alleged deficiencies in his work and con- duct, that it expunge said letter from its files, and that it notify Lloyd Wayne Coppins of such action. Upon the foregoing findings of fact, conclusions of law, and the entire record, I issue the following recommended: ORDERS Respondent Prince Lithograph Co., Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Issuing a letter of reprimand and warning to an em- ployee where the purpose thereof is to interfere with, re- strain, or coerce him in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Rescind and expunge from its records the letter of reprimand and warning delivered to Lloyd Wayne Coppins, dated May 5, 1972. (b)Notify said Lloyd Wayne Coppins, in writing, that said letter has been rescinded and has been expunged from its records. (c) Post at its Fairfax, Virginia, plant copies of the notice attached hereto and marked "Appendix." 10 Copies of said notice, on forms to be furnished by the Regional Director for Region 5, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter, in conspicu- ous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notice is not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order what steps Re- spondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint, as to all matters not specifically found to be in violation of the Act, be dismissed. e 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 herein 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 10 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT issue a letter of warning or reprimand to any employee where the purpose thereof is to interfere with, restrain, or coerce said employee in his right to act as shop steward for Local 285, Lithographers and Pho- toengravers International Union, AFL-CIO, or his right to engage in any other lawful activity on its be- half. WE WILL rescind and expunge from our records the letter of reprimand and warning issued by us to Lloyd Wayne Coppins on May 5, 1972. WE WILL notify said Lloyd Wayne Coppins in writing that we have rescinded said letter and have expunged it from our records. PRINCE LITHOGRAPH CO, 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 compliance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201,301-962-2822.