Precision Graphics, Inc.

PRECISION GRAPHICS, INC. 381 Precision Graphics, Inc. and Graphics Arts Interna- tional Union Local 14L, AFL-CIO. Cases 4- CA-10831 and 4-RC-13927 June 3, 1981 DECISION AND ORDER On February 24, 1981, Administrative Law Judge Benjamin Schlesinger issued the attached Decision in this proceeding. Thereafter, Respond- ent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed an- swering briefs. 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, find- ings, 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 Re- lations Board adopts as its order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Precision Graphics, Inc., Pennsauken, New Jersey, its offi- cers, agents, successors, and assigns, shall take the action set forth in said recommended Order. IT IS FURTHER ORDERED that the election con- ducted in Case 4-RC-13927 be, and it hereby is, set aside, and that the proceeding be, and it hereby is, vacated. The parties stipulated that Respondent read the notice of closing on October 31, 1979, and posted the same on November 1. 1979, in order to discourage its employees from supporting the Union. On the basis of the foregoing stipulation and the entire record it is clear that the announce- ment and notice had the intended impact DECISION STATEMENT OF FACTS AND CONCLUSIONS OF LAW BENJAMIN SCHLESINGER, Administrative Law Judge: Respondent Precision Graphics, Inc., is, and has been at all times material herein, a New Jersey corporation en- gaged in the business of advertising typography at its fa- cility in Pennsauken, New Jersey. During the year pre- ceding June 30, 1980, the date on which the complaint issued herein, Respondent in the course of its business sold and shipped products valued in excess of $50,000 di- rectly to customers located outside the State of New Jersey. I conclude, as Respondent admits, that it is and has been at all times material herein an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. I also conclude, as Respondent admits, that Graphic Arts International Union Local 14L, AFL-CIO (herein called that Union), is and has been at all times material 256 NLRB No. 57 herein a labor organization within the meaning of Sec- tion 2(5) of the Act. In late October 1979,1 the Union began organizing the employees of Respondent and at a meeting held on October 28, 22 of Respondent's 31 em- ployees in the appropriate unit 2 signed cards authorizing the Union to bargain for them as their collective-bargain- ing representative. By letter dated October 30, the Union advised Respondent that it had been designated the rep- resentative by a majority of Respondent's production and maintenance employees, that it requested recognition, and that it intended to file a petition (which was filed in Region 4 the same day) seeking certification from the Board, which petition would be withdrawn if Respond- ent recognized and agreed to bargain with the Union. The letter was not received by Respondent until Novem- ber 2, but Respondent declined to recognize the Union as the representative of its employees. Instead, in order to discourage its employees from sup- porting the Union, Respondent's president, Richard Dia- manti, announced to a meeting of employees on October 31, as follows: We called this general meeting to advise you of a decision that we made in Bermuda. It was a heavy decision and it took a lot of time. We are going to discontinue the operations of Precision Graphics with a target date of December 1, 1979. We feel that this two month period will give everyone ade- quate time to take care of personal affairs affected by this transition. This phaseout will be orderly with all employees receiving everything that is due them including ESOT and MPPT. 3 We want to thank you for your efforts. We feel that we have built one of the best shops in the area. But the tech- nology available today forces a realistic appraisal of the industry and our position in that industry. We ask your cooperation to assist us in this orderly phaseout. We would like you to return to work as normally as possible. We will give you further in- formation as soon as it becomes available. Thank you for your efforts. Recognizing that Diamanti had inadvertently stated "December 1, 1979," Respondent posted, for the same il- legal purpose, the following notice on its bulletin board on November 1: PLEASE E ADVISED THAT THERE WAS AN ERROR IN LAST NIGHT'S ANNOUNCE- All dates hereinafter refer to the year 197). unless othcrruise .ated 2 The unit appropriate for bargaining herein is All productionr and maintenance employees icluding mark-up employves. operators, proof readers. strippers, detail ne. ad drisers employed bh Respondent Il Its Pennsauken. New Jersey facility: excluding all other employees, sales- men, office lericals, guards. and supervisors as defined in the Act Al- though Respondent's brief makes sonime mention of statements rnlsde hb the Union's representative when requesting that emploees sign cards. Respondent does not and culd not) seriousl, contend that these 22 cards ar ialid An additional card was signed or Novsember b Ni- chael McErlaii. Although his card is unnecssar hto eslablish the I'nlon ', clear nalortyv, I find it valid hecause. s genr.ll rule, "cnploee should he hbound hb the clear hlnguage of sChat te sign " \ I R Gtisr'e Ping C o, 39 tr S 575. )t ( 1969I ' hse re einplo>ee fringe hbel its P R E C I S I O N G R A P H I C S , I N C ~ ~~ ~ ~~~~~~~~~~~. 3 8 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MENT. THE PROJECTED TARGET DATE FOR THE DISCONTINUATION IS DECEM- BER 31, 1979, RATHER THAN DECEMBER 1, 1979. On November 29, the Union and Respondent signed a Stipulation for Certification Upon Consent Election, agreeing to January 25, 1980, as the date for the election. On the following day, Respondent posted another notice on its bulletin board, which read: This is to inform you that Precision Graphics Inc. will continue operations beyond the previously an- nounced termination date of December 31, 1979. We regret the concern this announcement must have caused. Our earlier decision has been reconsid- ered because of encouragement from many employ- ees and clients. Past technology has contributed to our rapid growth. Future technology will enable us to grow even more with additional opportunities for every- one. We now feel that these changes can be phased in gradually rather than through a complete inter- ruption of services. We have thrived on challenges in the past. We are confident that we can meet them in the future. We ask for your continued support and cooperation. The Union lost the election 27 to 4, with 6 challenged ballots.4 General Counsel claims that Respondent violat- ed Section 8(a)(1) of the Act by threatening orally and in writing to close its business. The Union filed timely ob- jections to the election, based on the same allegations. 5 The facts are not at issue, and I have fully considered the briefs filed by General Counsel, Respondent, and the Union. In General Stencils, Inc., 195 NLRB 1109, 1110 (1975), enforcement denied 472 F.2d 170 (2d Cir. 1972), the Board stated: A direct threat of loss of employment, whether through plant closure, discharge, or layoff, is one of the most flagrant means by which an employer can hope to dissaude employees from selecting a bar- gaining representative. Such conduct is especially repugnant to the purposes of the Act because no le- gitimate justification can exist for threatening to close a plant or to impose more onerous and severe working conditions in the event of a union victory. Such threats can only have one purpose, to deprive 4 The six challenged ballots were cast by voters stipulated not to he included in the appropriate ballot. ' The relevant docket entries are as follows 'The Unionls unfair labor practice charge was filed on February I, 1980, and amended on March 12, 1980. The Ulion's objections to the conduct of Ihe electionl were iled on February 1, 1980. The Acting Regional Director issued a Report and Recommendations on Objections to Election, dated March 27, 19X0, find- ing that the objections lacked merit. However, on May 9, 1980, the Re- gional Director, on the basis of nIlely discovered evidence, issued a Sup- plemental Report ordering a hearing. I1 the unfair labor practice com- plaint, which issued on Juine 30, 1980, the objections proceeding was coit- solidated for hearing with the unfair labor practice proceeding I he hear- ing was held in 'Philadclphia, Pennsylvania, on January 12, 19X1 employees of their right freely to select or reject a bargaining representative! For all those reasons, we do not doubt that, in threatening to close the plant, to lay off, and to dis- charge employees upon a union victory, Respond- ent engaged in proscribed conduct of the most egre- gious sort. [Footnote omitted.] In Chandler Motors, Inc., 236 NLRB 1565, 1566 (1978), the Board stated: The Board and the courts have long ago deter- mined that threats of closing a facility because of union activity are among the most serious forms of interference with protected employee rights," and the Supreme Court has noted they are among the most effective unfair labor practices for destroying election conditions for a longer period of time than other unfair labor practices. 10 " lextle Workers Union v. Darhngton Mfg. C., 380 US 263 (1965); frting N. Rotrhin d/b/l Irvv Market, 179 NLRB 832 (1969), efd. 434 F 2d 1051 (6th Cir. 1970). to N.L.R.B. v Glssel, 395 US at 611, fn. 31 I conclude that Respondent has violated Section 8(a)(1) of the Act. Having found that the Union demand- ed that Respondent recognize and bargain with it as the exclusive-bargaining agent of Respondent's production and maintenance employees, that the Union represented a majority of Respondent's employees, that Respondent refused to recognize and bargain with the Union, but in- stead commenced and continued its course of illegal con- duct, I also conclude that Respondent violated Section 8(a)(5) of the Act. Respondent contends, however, that its November 30 letter effectively retracted its announcements a month earlier to close its business and thereby remedied its vio- lations of the Act. Respondent's position is factually and legally incorrect. The November 30 letter is, at best, equivocal. It does not state that the prior announcement was incorrect or withdrawn. Rather, it speaks only in terms of its business continuing past December 31, hardly a full retraction. Further, the threat still remains, although not as blunt as its October 31 speech. Respond- ent still speaks of the effects of technology-which was the justification for its earlier decision-and that "changes can be phased in gradually rather than through a complete interruption of services." The "interruption" would have caused all employees to lose their jobs. The gradual phase-in threatens the same result over a longer period of time and continues and repeats the threat of technological changes and loss of jobs as Respondent had threatened a month before. The law concerning repudiation is summarized in Pas- savant Memorial Area Hospital, 237 NLRB 138, 139 (1978), as follows: It is settled that under certain circumstances an employee [sic] may relieve himself of liability for unlawful conduct by repudiating the conduct. To be effective, however, such repudiation must be PRECISION GRAPHICS. INC. 383 "timely," "unambiguous," "specific in nature to the coercive conduct," and "free from other proscribed illegal conduct." Douglas Division, The Scott & Fetzer Company, 228 NLRB 1016 (1977), and cases cited therein at 1024. Furthermore, there must be adequate publication of the repudiation to the em- ployees involved and there must be no proscribed conduct on the employer's part after the publica- tion. Pope Maintenance Corporation, 228 NLRB 326, 340 (1977). And, finally, the Board has pointed out that such repudiation or disavowal of coercive con- duct should give assurances to employees that in the future their employer will not interfere with the exercise of their Section 7 rights. See Fashion Fair, Inc., et al., 159 NLRB 1435, 1444 (1966); Harrah's Club, 150 NLRB 1702, 1717 (1965). Applying these criteria to Respondent's November 30 notice, I find that, although there was adequate publica- tion, the notice was neither unambiguous nor sufficiently clear and specific, nor free from the same proscribed conduct as the first announcement and notice. It was not timely, having been delayed for a month so that employ- ees could fully ponder on the impact of the earlier threat. It admitted no wrongdoing and, most important- ly, it did not assure employees that in the future Re- spondent would not interfere with the exercise of their Section 7 rights by such coercive conduct. Rather, it did little more than inform employees that their termination was not as imminent as Respondent first announced. There is yet another reason why the repudiation is of no legal effect. If, as General Counsel and the Union contend, the unfair labor practices of Respondent were so egregious that a Gissel bargaining order is warranted, then not even a Board notice would be sufficient to remedy adequately the violation. In such circumstances, it could hardly be argued that an employer's repudiation could effectuate what a legal remedy issued by the Board could not. Turning, then, to the Gissel issue, I disagree with Re- spondent's contention that its violation falls under the "third category" of unfair labor practices designated by the Supreme Court, that is, "minor or less extensive unfair labor practices, which, because of the minimal impact on the election machinery, will not sustain a bar- gaining order." 395 U.S. at 615. Instead, I am persuaded that Respondent's threat to close its plant is more prop- erly placed in the Supreme Court's first category of "ex- ceptional" cases marked by "outrageous" and "perva- sive" unfair labor practices. 395 U.S. at 613. Indeed, in N.L.R.B. v. Sinclair Company, 397 F.2d 157 (Ist Cir. 1969), one of the four cases considered in Gissel, the Court upheld a bargaining order solely on the basis of threats (albeit, more pervasive than the one instance in- volved herein) to close the plant contingent on a union victory. In Milgo Industrial, Inc., 203 NLRB 1196, 1200- 1201 (1973), enfd. 497 F.2d 919 (2d Cir. 1974), the Board cited Gissel for the proposition that threats of plant clo- sure "are plainly actions which in and themselves are egregrious enough under the rule of Gissel to come within the first category there specified...." In Jim Baker Trucking Company, 241 NLRB 121 (1979). the Board stated: "Since most employees are dependent on their jobs for their livelihood, threatening to eliminate their place of employment is sufficiently serious to justify a bargaining order, even standing alone." (Emphasis sup- plied.) See also Ste-Mel Signs, Inc., 246 NLRB 1110 (1979). Although the Second Circuit denied enforcement of the Board's order in General Stencils, the court noted in dicta that if the threat involved in that case had been widely disseminated, as it was here, then a bargaining order would be "clearly warranted." 438 F.2d at 902. Another court of appeals has stated that "a closing is the penultimate threat for an employee, and its psychological effect is at least as likely not to dissipate as other unfair labor practices we have held to justify" a bargaining order. Midland-Ross Corporation Electrical Products Div. v. .L.R.B., 617 F.2d 977, 987 (3d. Cir. 1980). Another has referred to such a threat as "possibly the most seri- ous type of unfair labor practice." Chromalloy Mining and Minerals, Alaska Division v. N.L.R.B., 620 F.2d 1120, 1130 (5th Cir. 1980). See also Platt, The Supreme Court Looks At Bargaining Orders Based On Authorization Cards, 4 Ga. L. Rev. 779, 794 (1970). In determining whether a bargaining order should issue, I am guided by the Supreme Court's advice in Gissel, 395 U.S. at 614-615: "If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of tra- ditional remedies, though present, is slight and that em- ployee sentiment once expressed through cards would. on balance, be better protected by a bargaining order, then such an order should issue." In Gissel, the Supreme Court considered the effect of threats of plant closing and found that they were most effective in destroying election conditions for a longer period of time than other unfair labor practices. 395 U.S. at 611, fn. 31. The Board, in General Stencils, 195 NLRB at 110, referred to fact that the threat of closing "lingers long after the utter- ances have been abated" and doubted that the lasting impact could be mitigated by anything short of a bar- gaining order. The facts herein dictate such relief. The announcement of the closing came within 3 days after a substantial ma- jority of the employees met and designated the Union as their bargaining representative. The impact of Respond- ent's words could hardly be misunderstood, as Respond- ent finally stipulated at the hearing. The alleged repudi- ation was hardly that, but a continuation of the direct threat or, at least, a veiled threat that, if the election did not have certain results, Respondent still had the same options as before. I conclude, on the basis of this record, that it is unlikely that the employees will soon forget the threats to their livelihoods and that, in the circumstances, the employee sentiment is better protected by the issu- ance of a bargaining order. Furthermore, because I have found Respondent's violation to be egregious, I shall also recommend the issuance of a broad cease-and-desist order. Hickmott Foods. Inc., 242 NLRB 1357 (1979). Fi- nally, the bargaining order shall be effective as of No- vember 2, 1979, the date Respondent received the Union's demand for recognition. PRECISION GRAPHICS, INC. 383 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE OBJECTIONS I have previously found that Respondent's threats vio- lated Section 8(a)(1) of the Act. As a consequence, these acts, occurring within the critical period between the filing of the Union's petition and the date of the election, constituted objectionable conduct affecting the results of the election. "Conduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election." Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786 (1962). However, because of my finding that the violations of the Act are so serious that a bargaining order is warrant- ed, I recommend that the results of the election be set aside, that Case 4-RC-13927 be dismissed, and that all proceedings in connection therewith be vacated. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, occurring in connection with Respondent's operations described above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 6 The Respondent, Precision Graphics, Inc., Pennsau- ken, New Jersey, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Warning or threatening its employees that it will close its business in order to discourage them from sup- porting Graphics Arts International Union Local 14L, AFL-CIO. (b) Refusing to recognize or bargain collectively with the Union as the exclusive bargaining representative of all employees in the unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment: All production and maintenance employees includ- ing mark-up employees, operators, proofreaders, strippers, detail men, and drivers employed by Re- spondent at its Pennsauken, New Jersey facility; ex- cluding all other employees, salesmen, office cleri- cals, guards and supervisors as defined in the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: 6 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 find- ings, 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. (a) Upon request, bargain with the Union as the exclu- sive representative of all employees in the unit described above with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an un- derstanding is reached, embody such understanding in a signed agreement. (b) Post at its Pennsauken, New Jersey, facility, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's representative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7 In 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 Pursu- ant 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 warn or threaten our employees that we will close our business in order to discour- age them from supporting Graphic Arts Internation- al Union Local 14L, AFL-CIO. WE WIL.L NOT refuse to recognize or bargain col- lectively with the employees in the unit described below, with respect to their rates of pay, wages, hours, and other terms and conditions of employ- ment: All production and maintenance employees in- cluding mark-up employees, operators, proofread- ers, strippers, New Jersey facility; excluding all other employees, salesmen, office clericals, guards and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of their rights to self-organization, to form, join, or assist the Union or any other labor organi- zation, to bargain collectively through representa- tives of their own choosing, and to engage in con- certed activities for the purposes of collective bar- gaining or other mutual aid or protection, or to re- frain from any and all such activities. WE WILL upon request, bargaining with the Union as the exclusive representative of all our em- ployees in the unit described above, with respect to rates of pay, wages, hours, and other terms and PRECISION GRAPHICS, INC. 385 conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. PRECISION GRAPHICS, INC.