Deven Lithographers, Inc.

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Deven Lithographers, Inc., and Cavalier Multicolor Corp and Local One, Amalgamated Lithographers of America. Case 29-CA-4555 June 10, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On March 24, 1976, Administrative Law Judge Melvin J Welles issued the attached Decision in this proceeding Thereafter, the General Counsel filed ex- ceptions and a supporting brief Respondent filed ex- ceptions and an answering brief to General Counsel's exceptions 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 I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Deven Lithographers Inc, and Cavalier Multicolor, Corp, Long Island City and Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order i In making this determination, we do not pass on the issue of whether the 2-1/2-month period between the Union s certification and Respondent's unlawful refusal to bargain in order to test the certification was itself occa sioned by any bad faith, or purpose of evasion, on Respondents part A finding that Respondent's conduct constituted a separate and distinct viola- tion of Sec 8(a)(5) of the Act would not affect the Board's remedy and Order DECISION STATEMENT OF THE CASE MELVIN J WELLES, Administrative Law Judge This case was heard at Brooklyn, New York, on January 8 and 9, 1976, based on charges filed September 4, 1975, and a com- plaint issued October 31, 1975, alleging that Respondent violated Section 8(a)(1), (3), and (5) of the Act Respon- dents have filed a brief Upon the entire record in the case, including my obser- vation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Deven Lithographers, Inc, and Cavalier Multicolor Corp hereafter called the Company or Respondent, are, as Respondent admits, New York corporations, engaged in the manufacture and sale of printing materials and related products at their locations in Long Island City and Brook- lyn, New York During the year preceding issuance of the instant complaint, they received goods and materials at these locations valued in excess of $50,000 of which goods and materials, more than $50,000 worth were shipped to them from points outside the State of New York I find, as Respondent concedes, that Deven and Cavalier constitute a single employer, and are engaged in commerce within the meaning of Section 2(6) and (7) of the Act Local One, Amalgamated Lithographers of America, herein called the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Facts-Refusal to Bargain On September 23, 1974, the Union received a majority of the votes in an election conducted by the Board among the Employer's employees Thereafter, on June 6, 1975, the Board certified the Union as the exclusive bargaining rep- resentative of those employees, having adopted the Re- gional Director's determination that the Employer's objec- tions to the election be overruled On June 10, 1975, Union Representative Frank J Casino, Jr, called the plant for the purpose of requesting bargaining by the Union with the Employer He was unable to speak with Edward Gambella, company president, then or during the next week or so, despite repeated phone calls On June 19, Gambella re- turned Casino's call and told him, according to Casino, that he could not talk about anything until he spoke with his attorney Casino attempted to call Gambella another four or so times between June 19 and August 11, with no success On August 14 he spoke again with Gambella, who told Casino "I thought I told you to contact my attorney " Casino said that he thought Gambella was to have contact- ed his attorney, but that in any event he, Casino, would now do so Casino, after several fruitless attempts to do so, reached Company Attorney Husband on August 25, and was told by Husband that Gambella wanted to go into further litigation on the matter The parties stipulated at the hearing that Respondent refused to bargain with the Union, and intended to litigate further the validity of the certification issued by the Board B Discussion-Refusal to Bargain Respondent's objections to the election having been overruled by the Regional Director, with the Regional Director's determination affirmed by the Board, it is, of 224 NLRB No 95 DEVEN LITHOGRAPHERS, INC course, incumbent upon me to find the refusal-to-bargain violation and issue an appropriate order Respondent, in- deed, does not challenge the fact that it refused to bargain in order to test the certification Although Respondent in its brief requests dismissal of the 8(a)(5) allegation on the ground that there was no valid certification, the forum for asserting such a claim, other than merely to preserve its position, as it has, is not before me The General Counsel also contends that Respondent, prior to its ultimate "refusal to bargain" to test the certifi- cation, engaged in attempts to evade and delay its obliga- tion to bargain with the Union, and that this delay consti- tuted a separate and distinct violation of Section 8(a)(5) of the Act The evidence presented does not convince me that the 2-1/2-month period between the certification and Respondent's refusal was itself occasioned by any "bad faith," or purpose of evasion, on Respondent's part But even if it had been, I see no useful purpose to be served by so concluding, since at this point a bargaining order, in- cluding a provision for extending the "certification year," is all that could be given by way of remedy whether the violation was solely the refusal to bargain in order to test the certification, or included any "bad faith" delay or eva- sion prior thereto C The Facts Alleged Discriminatory Henry Aleksiewicz started working for the Company about 9 years ago From about 1972 until about January 1975, he was in charge of a portion of the Company called "Cavalier," about 5 minutes drive from the Company's principal shop He volunteered to serve as the Union's ob- server in the election held September 1974, having earlier signed a union card, and, as noted above, it was his partici- pation as an observer that formed one of the grounds for the Company's objections to the election In January 1975, he was asked by Company President Edward Gambella to take a position with management, as production manager, and he did so somewhat reluctantly, on the promise of Gambella that he would be paid the highest amount he had earned in any year (including overtime earnings) thereto- fore Aleksiewicz was not too happy in his new position, and indicated on a number of occasions that he wanted to [go] back to his old job "on the clock " Gambella repeatedly persuaded him to stay on the job as production manager, that he was more valuable to the Company and to himself in that position Finally, in July 1975, Gambella acceded to Aleksiewicz' continued requests, told him he could "go back on the clock" and that Jeff Claxton would take over as production manager During his tenure as production manager, Aleksiewicz was "responsible" for an error in the press run that cost the Company approximately $13,000 After Aleksiewicz resumed working as a rank-and-file employee, he was under Claxton's supervision Shortly af- ter he resumed working as a pressman, he had a conversa- tion with Claxton, begun by Claxton mentioning some- thing about "running two folders on the press " Aleksiewicz responded, according to his testimony, "It is a lot more work running two folders and a lot more responsi- bility Thank God the Union is coming in " That ended the 649 conversation Claxton gave a somewhat more expanded version of this conversation, testifying that Aleksiewicz said he would like to see the the Union "in here," that he (Claxton) responded "You've got to be kidding," asked why, with Aleksiewicz saying "For the fringe benefits that I would get " Claxton then said "Well, I'm surprised to hear you say that You'd have to pay dues Just recently you were in a management position " Aleksiewicz then said "I was only kidding, Geoff You know I was only kidding " Nothing more was said about that matter, and Claxton never mentioned it to any management official There is no credibility issue involved here Actually, the fuller version of the conversation given by Claxton is, if anything, more damaging to the Company's position than is Aleksiewicz' version While working at Cavalier, according to Aleksiewicz, he customarily left work about 35-40 minutes before the end of the work day, while the press was being washed by the other employees, and had his card punched out "most of the time" by someone else Gambella knew about this, ac- cording to Aleksiewicz, although he (Aleksiewicz) does not remember when he told Gambella I He testified that this practice began only when he went to Cavalier, where he was "the boss," and he did not permit the other men in the shop to punch each other out, he was the only one with this privilege He also testified that he told Gambella the reason for this practice was the fact that he "was opening up in the morning and I was ordering stuff, you know, taking care of the shop, I expected this to be one of my privileges " According to Aleksiewicz, when he returned to the press in August 1975, he "didn't leave the shop early because Claxton didn't like the idea of it " He changed his practice "because we had another boss " Other than "a day or two, I really sincerely don't remember that," he changed his old practice, and punched out at the time he left He told Gam- bella about his previous "arrangement" with Gambella shortly after resuming press work, when Gambella caught him having his card punched out But he testified, "I don't believe I done it again," that he knew Claxton "didn't like the idea " Claxton confirmed that Aleksiewicz mentioned the "arrangement" to him, and testified that he mentioned this to Gambella (confirmed by Gambella), who told Clax- ton that it was all right for Aleksiewicz to leave while the press was being washed, but that he had to punch out at that time, and that if he did not, Claxton was to let Gam- bella know On Friday, August 15, according to Claxton, he returned to the shop at or about 4 15 p in, after a meeting, looked for Aleksiewicz, and could not find him He went to the timeclock, and saw that Aleksiewicz' card was not punched out At the end of the workday, he returned to the time- clock, and saw that Aleksiewicz' card had been punched out at the time the rest of the employees left He informed Gambella of this incident Aleksiewicz was discharged 4 days later Gambella told him that he was being let go, and when asked why, responded, according to Aleksiewicz' ini- tial testimony, "For punching, somebody punching a time 1 His testimony was, "I imagine-let me see, 71, '70-the first six, seven months I really don't recall 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card and trying to build an organization here " At other points in his testimony, Aleksiewicz remembered Gambella saying that "he was trying to build an organization," "I was building an organization," and finally, "People punch- ing your card and trying to build an organization, trying to build an organization " According to Gambella, he told Aleksiewicz that he was being let go "Because of the fact of having other people punch his card out," and because "it was disrupting the entire organization " Gambella also testified that he recalls Aleksiewicz having left early while at Cavalier only two or three times, that there was no special arrangement permit- ting him to leave early and have someone else punch his card at normal quitting time, that the Company had signs posted over the timeclocks that anyone caught punching a card for someone else would automatically be dismissed, and that he had no occasion to check whether Aleksiewicz was actually punching out when he left early while at Ca- valier, because of his "long-standing friendship" with him, and because he was putting his trust in an employee "who was basically running a plant " Although "trying to build an organization" suggests, without more, a reference to union activity, since Aleksie- wicz himself varied his testimony to the point where the words were that Gambella, not Aleksiewicz, was trying to build an organization (the Company-obviously not a union), since Gambella's own testimony supports this in- terpretation, and since there is no reason at all for Gambel- la to have believed that Aleksiewicz was "trying to build a [union] organization," I find that the words said were as testified to by Gambella 2 D Discussion-Alleged Discriminatory Discharge The General Counsel contends that the reason for Alek- siewicz' discharge was his "union activity," which, on this record, was limited to having been the observer for the Union at the September 1974 election, and having re- marked to Claxton, early in August 1975, "Thank God the Union is coming in " 3 The General Counsel argues that Respondent's attempt to "evade and delay" its obligation to bargain, culminating in its determination to litigate the validity of the certification, the conversation between Alek- siewicz and Claxton, and the discharge, all having taken place within weeks of one another, with the conversation demonstrating to Respondent Aleksiewicz' continuing in- terest in having the Union represent the employees, estab- lish a prima facie case of a violation of Section 8(a)(3) of the Act The General Counsel also points to the fact that Aleksiewicz had not been discharged in May 1975 despite being responsible (I assume he was so responsible, for pur- poses of this discussion) for a costly error, to show that his subsequent discharge for the very minor offense of having his card punched out after he left the plant was not for the 2 Neither Aleksiewicz being the union observer almost a year earlier nor his brief conversation with Claxton (assuming Gambella to have by impu- tation known of it) suggests a leading role for Aleksiewicz in bringing in a union, when in fact a union was already 'in" by virtue of the Boards certification with only a legal test before the Board and the court of ap- peals remaining 3 Based on Aleksiewicz' own testimony as noted above given reason, but was a pretext Finally, the General Coun- sel points to Gambella's statement to Aleksiewicz as to the basis for his discharge, construing Gambella's language as a reference to building up the Union Taking into account all the facts of this case, I cannot agree with the General Counsel's position In the first place, Respondent's failure to discharge Aleksiewicz be- cause of the error in May cuts the other way, in that Alek- siewicz had already been the Union's observer, he was in a management position where he could be discharged with- out cause and for union activity, clear good cause existed, and yet he was not discharged Manifestly, therefore, Re- spondent did not resent his having served as the union observer Further demonstrating that Aleksiewicz having served as the union observer did not engender any animos- ity on the part of Respondent is the fact that he was made the production manager after he so served, and that Re- spondent acquiesced in his request to return to the floor as a pressman, much against its own desires, when Aleksie- wicz kept pressing Gambella to have him changed back to a pressman What remains, then, is the innocuous conversation be- tween Aleksiewicz and Claxton, which occurred some weeks prior to the discharge As noted above, this conver- sation scarcely established Aleksiewicz as a union activist, indeed, there was nothing in particular to be an activist about, for, as also noted above, the ball game was essen- tially over insofar as the employees' desires were con- cerned, what remained, and still, in part, does remain, being the resolution of the Company's legal challenge to the validity of the Board's certification Finally, there is the reason given by Gambella to Aleksiewicz for the discharge As I have found above, I do not believe that the words used by Gambella can be construed as referring to a union, particularly in the light of Aleksiewicz' own testimony, with its varying versions of what was said, some of them not even susceptible to the invidious construction urged by the General Counsel Indeed, the very circumstances that militate against such a construction, apart from Aleksiew- icz' own uncertainty as to what was said, also serve to ne- gate any inference that might otherwise be made that the discharge was occasioned by Aleksiewicz' having been the union observer, and having indicated to Claxton his con- tinuing desire for unionization of the Company's employ- ees For all these reasons, I conclude that the General Counsel has not established, on the entire record, that the discharge of Aleksiewicz was violative of Section 8(a)(3) and (1) of the Act Upon the basis of the foregoing findings of fact and the entire record, I make the following Conclusions of Law 1 All lithographic production employees, including cameramen, platemakers, strippers, pressmen, operators, tenders and general lithographic helpers employed by Re- spondent at its Long Island City and Brooklyn plants, ex- clusive of all office clerical employees, sales employees, guards, watchmen and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act DEVEN LITHOGRAPHERS, INC 2 Since June 6, 1975, the Union has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act 3 By refusing on or about August 25, 1975, and at all times thereafter, to bargain collectively with the Union as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act 5 Respondent has not violated the Act by discharging Henry C Aleksiewicz THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that they cease and desist therefrom, and, upon request, bargain col- lectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an under- standing is reached, embody such understanding in a signed agreement In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargain- ing agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit See Mar-Jac Poultry Company, Inc, 136 NLRB 785 (1962), Commerce Company d/b/a Lamar Ho- tel, 140 NLRB 226, 229 (1962), enfd 328 F 2d 600 (C A 5, 1964), cert denied 379 U S 817 (1964), Burnett Construc- tion Company, 149 NLRB 1419, 1421 (1964), enfd 350 F 2d 57 (C A 10, 1965) Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER4 The Respondent, Deven Lithographers and Cavalier Multicolor, Inc, Long Island City and Brooklyn, New York, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with Local One Amalgamated Lithographers of America, as the exclusive bargaining representative of its employees in the following appropriate unit 4 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec 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 651 All lithographic production employees, including cam- eramen, platemakers, strippers, pressmen, operators, tenders and general lithographic helpers employed by Respondents at its Long Island City and Brooklyn plants, exclusive of all office clerical employees, sales employees, guards, watchmen, and supervisors as de- fined in the Act (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action necessary to ef- fectuate the policies of the Act (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employ- ees in the aforesaid appropriate unit with respect to rates of pay, wage, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement (b) Post at its plants at Long Island City and Brook- lyn, New York, copies of the attached notice marked "Ap- pendix " 5 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be 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 notices are not altered, de- faced, or covered by any other material (c) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith 5In the event that this 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 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 refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and conditions of employment with Local One, Amalga- mated Lithographers of America, as the exclusive rep- resentative of the employees in the bargaining unit de- scribed below WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an un- 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD derstanding is reached, embody such understanding in ployed by Respondent at its Long Island City and a signed agreement The bargaining unit is Brooklyn plants, exclusive of all office clerical em- All lithographic production employees, including ployees, sales employees, guards, watchmen, and su- cameramen, platemakers, strippers, pressmen, oper- pervlsors as defined in the Act ators, tenders and general lithographic helpers em- DEVEN LITHOGRAPHERS, INC AND CAVALIER MULTICOLOR CORP