J. W. Fergusson & Sons, Inc.

882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD J. W. Fergusson & Sons, Inc. and Graphic Commu- nications International Union, Local 788-S, AFL-CIO. Cases 5-CA-19775, 5-CA-19966, and 5-CA-20053 September 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On April 18, 1990, Administrative Law Judge Claude R Wolfe issued the attatched decission The Respondent filed exceptions and a supporting brief and the General Counsel filed a bnef in re- sponse to the Respondent's exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulmgs, 2 find- mgs, 3 and conclusions4 and to adopt the recom- mended Order as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law 1 The General Counsel also filed a motion, which the Respondent op- posed, to correct the judge's recommended Order and notice to reflect his conclusion that the Respondent violated Sec 8(aX5) by refusing to recognize a representative of Local 788-S as a representative of its em- ployees We grant the General Counsel's request and modify the recom- mended Order and nonce accordingly The Respondent has requested oral argument The request is denied be- cause the record, exceptions, and briefs adequately present the Issues and the positions of the parties 'The Respondent has excepted to the judge's denial of its request to Introduce 26 additional witnesses on surrebuttal According to the Re- spondent's proffer, 11 of the witnesses would have testified that the ballot Introduced into evidence by the General Counsel as G C Exh 3 was not the ballot on which they voted, 15 would have testified that they could not swear that G C Exh 3 was the ballot on which they voted The judge properly rejected the Respondent's proffer as cumulative and Im- proper surrebuttal The Respondent called seven witnesses in its case-In- c/lief to testify about their recollections of the ballot they used in the af- filiation vote and could have called additional witnesses at that time In any event, of the several witnesses who did testify concerning the ballot, most testified that the ballot they used was pnnted with blocks labeled "yes" and "no" or "for" and "against" and that they knew the purpose of the vote Thus, the preponderance of the evidence supports the judge's conclusion, which we adopt, that the affiliation vote met the require- ments of minimum due process In agreeing that the judge acted within his discretion in rejecting the Respondent's request to Introduce 26 additional witnesses on surrebuttal, Member Cracraft relies solely on the fact that the Respondent's proffer was cumulative and Improper surrebuttal 'The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 4 We do not rely on Williamson Co, 244 NLRB 953 (1979), and New Orleans Public Service, 237 NLRB 919 (1978), in adopting the findings and conclusions of the judge judge as modified and orders that the Respondent, J W Fergusson & Sons, Inc, Richmond, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(c) and re- letter the subsequent paragraphs "(c) Refusing to recognize a representative of Local 788-S as a representative of the employees in the unit described above" 2 Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs "(c) Recognize the representatives of Local 788- S as representatives of the employees in the unit described above" 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT refuse to recognize and bargain with Graphic Communications International Union, Local 788-S, AFL-CIO as the exclusive represent- ative of the unit described below WE WILL NOT fail and refuse to remit checked- off dues to the Union pursuant to valid dues-check- off authonzations executed by our employees WE WILL NOT refuse to recognize representa- tives of the Union as representatives of our em- ployees in the unit descnbed below WE WILL NOT m any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the National Labor Relations Act WE WILL recognize and bargain collectively with the Union as the exclusive collective-bargain- ing representative of all loopers, slitters, make- ready helpers, fioorsweepers, technicians, cylinder inspectors, make-ready men, doctor machine opera- tors, inspectors, wrapper, pouch catcher, joggers, apprentices in bindery, porters, pouch operator, cutters and press, washup, miscellaneous mainte- nance and printing division employees, employed by us at our Richmond, Virginia facility, but ex- cluding all warehousemen, office clerical employ- ees, salesmen, truckdnvers, department foremen, guards, and supervisors as defined in the Act 299 NLRB No 132 J W FERGUSSON & SONS 883 WE WILL remit to the Union the dues we de- ducted from our employees' wages after April 17, 1988, with interest WE WILL recognize the representatives of the Union as representatives of our employees in the unit described above J W FERGUSSON & SONS, INC Brenda Valentine Hams, Esq and Bruce Goodman, Esq , for the General Counsel James V Meath, Esq , Douglas M Nabhan, Esq , and Lynn F Jacob, Esq , for the Respondent Sandra L Hughes, Esq , for the Charging Party DECISION STATEMENT OF ME CASE CLAUDE R WOLFE, Administrative Law Judge This proceeding was tried before me in Richmond, Virginia, on August 16, 17, and 18, September 5, 6, and 7, and No- vember 7, 1989, pursuant to charges and amended charges filed on June 27, July 26, September 2, and Oc- tober 7, 1988, 1 and timely served, and consolidated com- plaint issued January 9, 1989, alleging J W Fergusson & Sons, Inc (Respondent) violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Graphic Communications International Union, Local 788-S (Local 788-S), by refusmg to remit union dues de- ducted from employees' paychecks, by unilaterally changing break and lunch periods, and by failing and re- fusing to meet with the Union's designated agent Janice McKinney for the purpose of handling grievances Re- spondent demed the commission of unfair labor practices On the entire record, and after carefully considering the testimonial demeanor of the witnesses, and the post- trial briefs of the parties, I make the following FINDINGS OF FACT I RESPONDENT'S BUSINESS At all times material, Respondent, a Virgima corpora- tion with an office and place of business in Richmond, Virginia, has been engaged in the business of producing labels and other commercial pnnted materials During the 12 months preceding the issuance of the complaint, a representative period, Respondent, in the course and conduct of these business operations, sold and shipped from its Richmond, Virginia facility products, goods, and materials valued in excess of $50,000 directly to points outside the Commonwealth of Virginia, and is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II SUPERVISORS AND AGENTS The following named persons have at all times maten- al occupied the positions set forth opposite their respec- 1 All dates are 1988 unless otherwise noted tive names, and are now, and have been, supervisors of Respondent within the meaning of Section 2(11) of the Act, and agents of Respondent within the meaning of Section 2(13) of the Act Russell G Fergusson, owner, Elmer Jones, offset and letterpress supervisor, William Kelly, president, John Rudd, general manager, and Lee Walters, bindery department supervisor III BARGAINING UNIT AND GENERAL CHRONOLOGY, AND THE ALLEGED UNFAIR LABOR PRACTICES2 The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All Loopers, Slitters, Make Ready Helpers, Technicians, Helpers, Floor Sweepers, Technicians, Cylinder Inspectors, Make Ready Men, Doctor Ma- chine Operators, Inspectors, Wrapper, Pouch Catcher, Joggers, Apprentices in Bindery, Porters, Pouch Operator, Cutters and Press, Wash up, Mis- cellaneous Maintenance and Pnntmg Division Em- ployees, employed by the Respondent at its Rich- mond, Virginia facility but excluding all Warehou- semen, Office Clerical Employees, Salesmen, Truck Drivers, Department Foremen, Guards and Super- visors as defined in the Act The parties agree, and I find, J W Fergusson & Sons Employees Association (Association) became the desig- nated exclusive bargaining representative of the employ- ees in about 1945 and was certified as such by the Board on April 30, 1984, after a Board-conducted representa- tion election The Association negotiated successive col- lective-bargaining agreements with Respondent, the latest effective on its terms from May 1, 1987, to April 30, 1990 The Association has clearly been shown to be a labor organization within the meaning of Section 2(5) of the Act Thus the situation remained until April 17, 1988, when members of the Association voted on the question of affiliating with the Graphic Communications Interna- tional Union (the GCIU), which admits employees to membership and exists for the purpose of dealing with employers concerning grievances, wages, rates of pay, hours of employment, and other terms and conditions of employment and is a labor organization within the mean- ing of Section 2(5) of the Act Thereafter the GCIU issued a charter to the Association as Graphic Communi- cations International Union, Local 788-S On May 3, Alley signed a letter to Respondent advising the Associa- tion's new name is "Graphic Communications Interna- tional Union, Local 788-S" On May 20, William Kelly, Respondent's president, wrote Alley a letter declining to 2 The conclusions of fact are based on the credible portions of testimo- ny of the participants and the documentary evidence received In those Instances where conflicts in testimony arose, I have considered the rea- sonable probabilities, the convincing character of the testimony, and com- parative demeanor of opposing witnesses Testimony that might appear to conflict with my findings of fact has been examined and rejected as less credible than that on which I have relied I have credited parts of wit- nesses' testimony while not crediting other parts This is neither unusual nor improper NLRB v Universal Camera Corp, 179 F 2d 749 (2d Cif 1950), vacated on other grounds 340 US 474 (1951) 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD recognize the GCIU because it lacked majority status, the affiliation votes did not meet due-process standards, and any affiliation would cause a substantial change in the identity of the Association The General Counsel contends Respondent violates Section 8(a)(5) and (1) of the Act by refusing to recog- nize and bargain with Local 788-S because the affiliation was valid in all respects, had no adverse effect on the continuity of the existing collective-bargaining represent- ative, and obligates Respondent to bargain with Local 788-S Respondent replied it had no duty to bargain and refused to do so because the affiliation election was flawed by a lack of adequate due process, and the affili- ation so changed the character of the certified collective- bargaining representative that the requisite continuity of representation no longer existed and there is, as a result, a question concerning representation Respondent also relied on an absence of any duty to bargain with Local 788-S as a defense, among others, to the other violations alleged in the complaint A The Refusal to Recognize and Bargain 1 The affiliation vote In the early part of 1988 there was some discussion among employees regarding the need for the Association to seek "outside help" This caused the Association's president, James Alley, to request the Association's attor- ney, Jay Levitt, to investigate the possibility of a merger Pursuant to this request, Levitt arranged a meetmg with representatives of the GCIU on April 13, 1988 This meeting was held at the GCIU Local 670 hall Present for the Association were Levitt, Alley, and Vice Presi- dent Rodney Pendergrass who met with Colonel Hobbs, GCIU director of organizing, and Thomas Smith, busi- ness representative of Local 670 After some discussion of merger and affiliation possibilities, it was agreed by the participants that a vote on affiliation with the GCIU would be taken among the Association's members Smith and the Local 670 secretary prepared a notice to be posted by Alley advising Association members that such a vote would be taken on April 17 The notice reads as follows NOTICE TO All Members of the J W Fergusson & Sons Employees' Association DATE April 13, 1988 This is to inform you that a "Special Meetmg" have been requested by members of J W Fergus- son & Sons Employees' Association, and this meet- ing is being called at their request The purpose of this meeting is to discuss and vote on affiliating with the Graphic Communications International Union, AFL-CIO-CLC The meeting will be held on Sunday, April 17, 1988 at 400 p m, Holiday Inn, 4303 Commerce Road, Richmond, Virginia (across from Philip Morris) This is a very important meeting, so please attend 3 This notice was posted on Respondent's bulletin board and near the ttmeclock where all employees entered on April 13 On Friday, April 15, Respondent conducted a meeting with its day-shift employees at a Holiday Inn Estimates of the number present range from 130 to 200 There they were addressed by William Kelly, Respondent's presi- dent, who advised the employees to attend the April 17 meeting, listen to what was said, express their opinions, and vote The April 17 meeting was also held at a Holiday Inn The record does not eliminate the possibility more than 65 Association members attended, but that is the number of those who signed a voting list before being issued a ballot 4 There were 139 dues-paying members at the time, but it is settled that an affiliation vote does not re- quire that all or even a majority of members cast ballots See Ocean Systems, 227 NLRB 1593 (1977), enfd sub nom T J Ray McDermott & Co, 571 F 2d 850 (5th Cir 1978), cert denied 939 U S 893 (1978) It is only neces- sary that a simple majority of the members voting concur in the affiliation Williamson Go, 244 NLRB 953, 955 (1979) Also attending were Thomas Smith, Colonel Hobbs, and two members of Local 670 These persons took no part in the actual voting, and there is no persua- sive evidence their presence Interfered with the balloting, or compromised the secrecy of the ballot 5 Smith and James Alley addressed the Association members present Alley opened the meeting He ex- plained affiliation would probably result in a dues in- crease, and affiliation would mean the Association would have access to GCIU resources and would receive help at negotiation time He then introduced Thomas Smith as the one to answer any questions regarding affiliation Smith explained, in response to questions put to him, that although they would not have to join the GCIU 6 if they voted to affiliate, they would have to pay GCIU a per capita tax of 1 hour's wages per month if they did join as well as $2 per month to a strike fund if they elected to take part in that fund Smith told them the GCIU would provide assistance in negotiations, processing of griev- ances, and training of shop stewards He assured the group the GCIU would not control the Association, would not be a signatory to its contracts, and could not prevent it from striking, but would not give them strike benefits or enable them to get other financial assistance in a strike situation unless the strike was sanctioned by the GCIU Smith also said the GCIU would do its best to help the employees get pension and retirement plans and higher wages for women, and that the Association would remain a separate entity associated with the 3 The Association's bylaws provide that its president may call an emer- gency meeting if he deems It necessary 4 The Association's bylaws provide, "A Quorum at any Association meeting shall consist of 15 (fifteen) members A majority of such Quorum shall decide any motions brought before the meeting" 5 The nonmembers, other than Hobbs and Smith, left before the vote at Alley's request Smith was in the room during the voting 6 Virginia is a right-to-work State .1 W FERGUSSON & SONS 885 GCIU with access to advice from its officers and attor- neys Smith's comments contain no material misrepresen- tation and were substantially correct in that a certified union does not lose its identity by reason of a valid affili- ation which is essentially an internal union matter Amoco Production Go, 239 NLRB 1195 (1979), NLRB v Finan- cial Institution Employees, 475 U S 192 (1986), and see Williamson Go, 244 NLRB 953, 954 (1979), where simi- lar reasons for affiliation were given to employees After Alley and Smith completed their remarks to the assem- blage, the vote was taken The form of the ballot, the voting procedures, and the results are all questioned by Respondent The General Counsel contends the neces- sary due process was presen ed Respondent argues it was not I believe the General Counsel has the better of the argument Respondent questions whether every voter used a printed ballot (as G C Exh 3) reading as follows April 17, 1988 SECRET BALLOT I am a full time employee of J W Fergusson & Sons Inc , and a member in good standing of the J W Fergusson & Sons Employees' Association I understand by voting m favor of the affiliation of the J W Fergusson & Sons Employees' Asso- ciation with the Graphic Communications Interna- tional Union, AFL-CIO-CLC I will be authorizing the duly authorized officers of the J W Fergusson & Sons Employees' Association to take all neces- sary action to accomplish this affiliation with the Graphic Communications International Union, AFL-CIO-CLC I am fully aware that I also have the nght to vote against the affiliation of the J W Fergusson & Sons Employees' Association with the Graphic Communications International Union, AFL-CIO- CLC FOR AGAINST__ General Counsel presented evidence showing the follow- ing history of the preparation, use, and custody of this ballot The ongmal of this ballot was prepared by Evelyn Brooks, Local 670 secretary, 7 on April 13 at the behest of Thomas Smith She then made 80 or 90 copies, all of which she delivered to Smith He kept them in his pos- session until the April 17 meeting when he gave them to James Alley Each Association member present who wished to vote was required to sign a list He or she was then given a ballot by Alley which they, one at a time, marked in secret behind a screen, and then folded and dropped in the ballot box The voting list contains 65 sig- natures After these voters had cast their ballots, they were counted by Evelyn Akers and another unidentified volunteer The result was 60 votes for and 5 against the proposition on the ballot Alley announced the count and returned the used ballots to Smith who thereafter re- / Brooks' believable and credited testimony is supported by her com- puter records tamed them in his possession and control until he gave them to the Charging Party's counsel shortly after the hearing in this proceeding commenced The ballots then remained in the custody of Charging Party's counsel until they were placed in evidence on September 7, 1989 Respondent developed considerable testimony which, if credited, raises questions concerning the nature of the ballot used and the general election procedure Charlotte Harris testified that she believes the purpose of the April 17 meeting was to vote on getting the Union in at Fer- gusson's She had read the notice posted by Alley on April 13 She relates that before voting on Apnl 17 members were required to sign a piece of paper Then, she testified, she was given a smaller scrap piece of paper upon which to vote and did not use the ballot described above She recalls that she first saw that ballot about a month after Apnl 17 when Evelyn Akers gave one to her and told her to mark it against the Union She fur- ther avers there were other of these ballots on the lunch- room tables about the same time Akers talked to her Akers, called as a witness by Respondent, neither con- firms nor contradicts Harris' testimony concerning the post-April 17 incident, but relates that she and another employee, whose name she does not know, counted the ballots, and "a lot of people had their hands in the ballot box" and "At one point in the counting the no votes were thrown on the floor" There is no evidence to cor- roborate her claim that a lot of people had their hands in the ballot box or that "no" votes were thrown on the floor Rodney Pendergrass does not recall there was a ballot used, but believes everyone just took a piece of paper off a pad William O'Berry, Sondra Pennington, Flora Hayden, Kevin Handwerk, Manuel Rivas, Lloyd Rowe Jr, and Priscilla Hicks also gave testimony concerning the ballot Hicks testified she cannot recall the shape or size of the ballot used, does not recall if there was any typed message on it, can't remember exactly what the ballot said, but believes there were two blocks, a little larger than those on General Counsel's Exhibit 3 labeled "yes" and "no," but knows General Counsel's Exhibit 3 was not the ballot she used O'Berry testified he did not use General Counsel's Exhibit 3 but voted on a square piece of paper with "yes" and "no" blocks Pennington testified she did not use General Counsel's Exhibit 3 to vote, and first saw a copy of it on September 7, 1989, at the hearing She first recalled there was Just "yes" and "no" on the ballot cast, but, on cross-examination, she re- called there was typed words on it, "telling you about going to affiliate with the Union, and It had at the bottom of it yes or no," and was about the same size as General Counsel's Exhibit 3 Hayden recalls she voted on a plain sheet of paper with only two words on it that may have been "for or against" or "yes or no" She re- calls there were blocks to mark, but denies the presence of any other language at all, and specifically denies Gen- eral Counsel's Exhibit 3 was the ballot she used Hand- werk testified that he did not use a ballot like General Counsel's Exhibit 3, but used a smaller one He is not sure if there was any writing on it, recalls no boxes to vote in, but opines there may have been boxes and some- 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD thing like "yes or no" or "for or against" on the ballots All he purports to be certain about is that he voted on a piece of paper one-third the size of General Counsel's Exhibit 3 Rivas' testimony is, in pertment part, as follows after being shown General Counsel's Exhibit 3 Q Is that the ballot that you used on that day to vote? A In my personal opinion, no Q That is not? A But I could be wrong I do believe it is not Q You do believe it is not A Because it's been such a good while, so I would say it's probably this big JUDGE WOLFE Let the record show that he has folded the document THE WITNEss Like this, I would think JUDGE WOLFE It's less than one half the size THE WITNESS I couldn't be 100 percent, since it's been quite a while ago, but that would be in the back of my mind BY MR MEATH Q That's what you remember? A I would remember that JUDGE WOLFE Mr Rivas, by folding the docu- ment to show, are you trying to show us that was the size it was before? THE WITNESS Yeah, that's pretty much what it JUDGE WOLFE It was a plam paper, you said? THE WITNESS Yes, it was JUDGE WOLFE Less than half the size that you have there? THE WITNESS That's correct BY MR MEATH Q Did it have for or against on it or yes, no on it? A I think it had for and against, I think I could not be 100 percent sure, but that's, like I said, from the back of my mind Hopefully, that is all correct Cross-Examination BY MS HARRIS Q Excuse me, Mr Rivas, regarding the ballot that you used-at that vote in April '88, were there any boxes drawn on that ballot to indicate yes or no? A I would probably think something like what you have over here, I would think Q Just small boxes A Just like what you have over here, for and against Is that what you mean? Q Yeah, Just the boxes themselves, not the wnt- mg A No, it was a box with the writing against and for Q Okay Was there any other writing on the ballot? A I have to be honest with you I could not re- member very well So, I couldn't say yes or no Rowe testified on direct examination that he certainly did not vote on a ballot like General Counsel's Exhibit 3, but remembers a smaller sheet of paper On cross-exami- nation, he testified as follows BY MS HARRIS Q The ballot that you used on April 17th, '88 was there any printed matter on the ballot? A I don't remember any writing at all Q You don't remember any writing A I Just remember it was a smaller sheet you had to sign Q Do you recall a blank piece of paper? A I can't remember if it had for or against or whatever I don't remember any of this writing here Q Do you remember if the sheet was plain, was blank in its entirety A No, I don't Q Do you remember if there were any boxes drawn on that ballot? A Oh, I'm sorry No, I don't remember that Q You don't remember any boxes on that ballot THE WITNESS I don't remember that BY MS HARRIS Q Mr Rowe, when you say you don't remember that, are you stating that you don't recall what was on the ballot or you don't remember that being on the ballot? A I don't remember having any of this that's on here I Just know that we voted for or against THE WITNESS I don't remember anything being on the sheet at all I don't remember ever seeing this, that's all that's right in here that you see BY MS HARRIS Q On the ballot that you used, were there any words that indicated yes or no, for or against? A I don't remember Considering the obviously poor recollections of Rowe, Rivas, Handwerk, Hicks, Hayden, and Pennington to- gether with the totally unsupported, and I believe con- fused, recollection of Pendergrass, the incredible asser- tion of Hams that Akers gave her a ballot like General Counsel's Exhibit 3 a month after April 17, the unlikely claim of O'Berry that he voted on a square piece of paper with yes and no blocks, and the uncorroborated claim of Akers concerning the handling of the ballots, which if it be true should certainly have been noted by others, against the detailed, probable, and believable ac- counts of General Counsel's witnesses regarding the preparation, possession, and usage of the ballots, I con- clude and find that General Counsel's evidence on the matter is more probable and believable and should be and is credited over that of Respondent In arriving at this conclusion, I have noted that the witnesses question- J W FERGUSSON & SONS 887 ing the identity of the ballot used were testifying a year and a half after the April 17, 1988 affiliation election, and the Supreme Court has noted employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony dam- aging to the Union 8 Here, as in a card drive, the wit- nesses' recollection of a document they executed is at issue, and the same rule should logically apply This, it seems to me is particularly true where memories have faded with the passage of time and the intervention of other significant events have occurred in the life of the witness who cannot reasonably be expected to constantly refresh his or her memory regarding an event which he or she has no real reason to carefully commit to memory or other personal record Moreover, the applicability of the proposition stated by the Supreme Court is clearly il- lustrated by the fact that 6 employees testified they voted "no" in the face of the clear and convincing evi- dence that 65 members signed the voting list, 65 voted, and only 5 voted "no" The Respondent's argument that the employees were given inadequate notice of the affiliation, inadequate in- formation regarding the effects of affiliation, and insuffi- cient opportunity for discussion before voting is without merit The April 13 notice posted by Alley on plant bul- letin boards and near the tuneclock which all employees must pass clearly states in unambiguous terms the pur- pose of the April 17 meeting was "to discuss and vote on affiliating with" the GCIU On April 15, Respondent urged a group of 130 or more employees to attend the April 17 meeting, listen to what was said, state their opinions on the matters under discussion, and vote Those who attended the April 17 meeting were given full opportunity to ask questions and receive answers about the process of affiliation and what it meant to them in terms of representation, dues, or anything else they wanted to ask There is no persuasive evidence the members present protested the vote or affiliation before or after the vote was taken Filially, the ballot itself ad- vised them they were voting on the question of affili- ation, could vote either way, and an affirmative vote would authorize Association officers to effect the affili- ation with GCIU It cannot be senously maintained that employees were not given adequate notice, information, and opportunity to discuss the affiliation and what it meant to them Respondent has not met its burden of es- tablishing the affiliation vote did not occur under cir- cumstances satisfying minimum due process, and the credible evidence adduced before me preponderates in favor of a conclusion, which I make, that due-process considerations in the affiliation have been satisfied 2 Continuity of the bargaining representative The question remaining with respect to the affiliation is whether there is continuity between the pre- and post- affiliation bargaining representative 9 This is sometimes phrased as a continuation of identity and autonomy Re- spondent contends the degree of Thomas Smith's in- volvement raises a question of the focus of control of the 8 NLRB v Gissel Packing Co. 395 U S 575, 608 (1969) 9 Hammond Publishers, 286 NLRB 49 (1987) Association during and after the affiliation process Were and are Association officers and agents in control of the company/union relationship with merely advisory asis- tance from the GCIU in the person of Thomas Smith furnished on request consistent with Smith's April 17 ex- position of the relationship between the Association and GCIU after affiliation, or has Thomas Smith, and thus the GCIU, usurped the role of Association officers and effectively taken control of that relationship? The record is reasonably clear that Association Presi- dent Alley and the Association's members believed that affiliation would not affect the independence of the As- sociation, and would only mean that the GCIU would be a source of legal and other assistance to be drawn on in time of need It is fair to note, however, that the mem- bers voting on April 17 were made aware there was a price to pay for this assistance, the per capita tax, and other fees In any event, the assistance furnished by Smith from the outset was, and apparently continues to be, considerable At the very beginning of the affiliation on April 13, it was he who drafted both the notice of the April 17 meeting and the ballot Thereafter he authored all letters to Respondent signed by James Alley I do not credit Smith to the extent he claims these documents were each written at Alley's specific request What hap- pened here, I conclude, is that Alley, happy to have Smith's expenence and expertise available, was more than willing to let Smith handle the necessary communi- cations According to Smith, Alley never changed any- thing Smith wrote, and I believe that is accurate and that Alley, relying on Smith to do what was required, rou- tinely signed what Smith presented him There is no evi- dence Alley was required or in any way coerced to sign that which Smith gave him Quite simply, Alley was sat- isfied with what Smith prepared for his signature and, without expressly so saying, willingly and deliberately adopted Smith's compositions as his own As I see it, this is precisely the sort of assistance and advice the Associa- tion was seeking through affiliation and does not show domination by Smith By letter of May 2, composed by Smith and signed by Alley, Respondent was advised of the affiliation and in- formed that All officers and functional leaders remain the same, and we anticipate no change in our day-to- day relationship with the Company The continuity of organization in the Local Union has been com- pletely preserved and we intend to honor fully all contractual and past practice commitments with the Company The continuity of representatives did remain the same during this penod and there is no evidence the existing collective-bargaining agreement has not been honored through its term The continuation of bargaining rela- tions with the Association's officers after the affiliation, which caused them to be Local 788-S officers if the af- filiation be valid, is illustrated by the meeting between Association Officers Alley, Piacentim, Lynch, and Harris (all named on the Local 788-S charter) and Respondent's 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD president Kelly and other representatives on April 27 to discuss work rules Respondent also urges that the differences between the GCIU constitution and Association bylaws show loss of autonomy, and enumerates those differences on which it relies, which are therefore now dealt with seriatim using the headings and numbering employed by Respondent in its brief B The International Union 1 Supremacy of the International Union Respondent argues that because the GCIU constitution recites the GCIU is the "sovereign and supreme" entity under the constitution, all locals are subject to the terms of the GCIU constitution and laws, and the GCIU may make, amend, and repeal all rules and regulations affect- ing its locals, it must therefore be concluded local con- trol of the Association no longer exists and Respondent and its employees must now respond to GCIU dictates In support of this proffer, Respondent cites article II, section I and article XXXIII, part II, chapter II of the GCIU constitution which are set forth below in their en- tirety ARTICLE II Authority Authority—Section 1 The International Union constitutes the sovereign and supreme organization having full and exclusive jurisdiction over all work- ers in the processes and mdustnes covered by it throughout the United States and Canada including their territories and possessions It consists of its membership as a whole, divided into Locals or other groupings It possesses full authority, subject to the provisions of the Constitution, to make, amend, or repeal general laws and other regulations affecting the government and conduct of the Inter- national Union, its Locals, other groupings and their members, to decide all jurisdictional and other dis- putes and controversies arising within it, to issue and recall the charters of Locals and other group- ings, to issue membership and other credentials, to tax members for its maintenance and operations in- cluding the maintenance and operation of special benefit funds, and to take any and all other action as may be necessary and appropriate to accomplish its objectives [ARTICLE XXXIII] Authority—Ch 2 1 A Local constitutes a geo- graphic or other unit of membership of the Interna- tional Union, deriving its charter, jurisdiction and powers from the International Union Each Local Union is self-governing in respect to its local affairs, subject only to the Constitution and Laws of the International Union In respect to all matters gov- erned by the Constitution and Laws of the Interna- tional Union, each Local Union is subject to the au- thority of the International Union In respect to all other matters, each Local Union is subject only to its membership Each Local officer and Local Exec- utive Board is responsible to its membership in regard to the affairs of the Local Union and is re- sponsible to the International Union in regard to the affairs of the International Union The Local Union shall be the exclusive representative of each member for purposes of collective bargaining agree- ments Junsdiction—Ch 22 The jurisdiction of each Local Union shall be in accordance with the terms of its charter These excerpts are general descriptions of the functions and authority of the GCIU and its locals As the second excerpt makes clear, notwithstandmg the GCIU's author- ity to regulate its internal affairs and the general "gov- ernment and conduct" of its locals, the local union re- mains the exclusive collective-bargaining representative of its members, is responsible to its members for the con- duct of Local affairs, is self-governing with respect to local affairs, and is subject to the GCIU's constitution and laws only in respect to matters governed by them The local union's power to negotiate collective-bargain- ing agreements without GCIU approval would seem to remain intact with the only exceptions being that article II, section 2 provides a local union may not negotiate any contract or agreement "in the name or on behalf of the International Union" which may "affect the interests of the International Union or of any Local Union there- of" without pnor authorization by the GCIU president, and section 3 requires permission of its GCIU president before the local may negotiate an agreement "which may affect the interest of the International Union" 2 Change in jurisdiction Here, Respondent makes the argument that the affili- ation changes the purposes and role of the bargaining representative because "the new representative, the GCIU," is dedicated to industrywide organization and the welfare of all its members, and because the Associa- tion is now governed by the GCIU constitution rather than the Association's bylaws This argument has no ment It is either the Association or, if the affiliation is valid, Local 788-S which is the certified bargaining rep- resentative of Respondent's employees, not the GCIU With respect to the Association's bylaws, there is no evi- dence they are not still in effect and/or not being fol- lowed 3 Loss of bargammg rights It simply is not accurate, as Respondent indicates it is, that Respondent's employees are totally precluded from negotiating without prior submission to and approval from the GCIU president As previously noted, the pro- visions of the GCIU constitution on which Respondent only requires such consultation where the local union elects to bargain in the name of or on behalf of the GCIU International, or engages in negotiations affecting the interests of the International Union Here, as in May Department Stores Co, 289 NLRB 661, 666 (1988), "[t]hese reserved rights of approval, allowing the Inter- J W FERGUSSON & SONS 889 national only to react to initiatives of the local, do not serve to supplant the local as the entity primarily respon- sible for the conduct of its affairs Indeed, if such condi- tions were sufficient to warrant a finding that an affili- ation had produced changes in the local that raised a question concerning representation, this would be tanta- mount to a conclusion that virtually any affiliation of a local with an International would raise such a question [There is] no basis in either precedent or policy for such a rule" With respect to the statement in article X, section 1, that the general board of the GCIU "shall develop and establish organizing and collective bargaining poli- cies and objectives," it does not, as Respondent con- tends, prohibit local unions from developing bargaining policies consistent with their needs All this proviso does is give the general board authonty and a directive to de- velop and establish policies for the GCIU It does not purport to supplant local bargaining policies Similarly, the power of the GCIU president to appoint Internation- al representatives, as he deems necessary, to engage in collective bargaining and "otherwise assist Locals for the purpose of carrying out the objectives of the Internation- al" does not, as Respondent would have me find, dimin- ish the role of the local union as "the entity primarily re- sponsible for the conduct of its affairs," nor does the "re- served right" of the GCIU president and the GCIU con- tract and research department to review and approve agreements negotiated by local unions Respondent further argues the requirement in article II, section 5 of the GCIU constitution that local agree- ments shall not exceed 3 years unless waived by the gen- eral board of the GCIU is a meaningful restriction on local bargammg I disagree Respondent presents no evi- dence waivers would not be readily forthcoming upon request, or that this rule would significantly inhibit bar- gaining independence at the local level 4 New threat of stnkes Respondent presents no authority for the novel propo- sition that a threat of strikes is a reason for concluding there is insufficient continuity of the bargaining repre- sentative It is argued by Respondent that because the Association bylaws make no reference to strikes but the GCIU constitution sets forth rules as to when and how a stnke may be called, how long it may last, and to whom and on what conditions strike benefits may be paid, and because, Respondent speculates, the GCIU would pres- sure Respondent should it attempt to have struck work performed elsewhere, the result is "The imposition of new threats against the employees and the Company alike [which] evidences the change in the character of the bargaining representative and as relationship with the Company and its employees" This fractured syllo- gism falls into the realm of metaphysical speculation which is neither evidence nor convincing argument 5 Change in control of bylaws There is no evidence the Association's bylaws no longer exist There is testimony they were submitted to the GCIU for approval, and there is reason to believe they have been approved because article XXXII', chap- ter 3 5 provides that a local's constitution and bylaws must be approved before its charter is issued Inasmuch as the charter of Local 788-S did issue, the evidence favors a conclusion the Association's bylaws remain intact To the extent that additions to or amendment of the bylaws are subject to approval by the GCIU, there is some control by GCIU over the drafting of them by the local union, but the GCIU constitution only requires the bylaws not conflict with the GCIU constitution or laws This is not an unreasonable requirement and I do not be- lieve it exceeds the permitted "reserved nghts" referred to in May, supra, and the Board concluded in New Orle- ans Public Service, 237 NLRB 919, 921 (1978), that an en- tirely new set of bylaws taken on by an independent union from the International with which it affiliated did not work to change the identity of the bargaining repre- sentative 6 Change m dues structure The change in dues from $2 per month to 1 hour's pay per month m accord with per capita taxes required by the GCIU was effected consistent with the Association's bylaws In National Posters, 289 NLRB 468 (1988), the Board adopted Judge Ries' findings and conclusions, in- cluding the observation that taxes accompanying an af- filiation do not affect "the essential identity of the former bargaining representative" Accordingly, I conclude the increase in dues here necessitated by the GCIU per capita tax, or future increases as a result of the affiliation, do not affect the contmumg identity of the Association now known as Local 788-S 7 Change in obligation of members Here Respondent adverts to GCIU's rules on resigning membership, the obligations of members to observe GCIU rules and laws, and the procedures for charging, fining, and otherwise disciplining members, as opposed to the absence of such rules and procedures pertaining to Association membership These matters all relate to in- ternal union procedures having nothing whatsoever to do with contminty of the bargaining representative 8 Loss of assets The Association has not been required to surrender its assets to the GCIU, but Respondent advances the view that, contrary to the Association's provision for division of funds among members on dissolution, GCIU provi- sions for the vesting of funds with GCIU to be held in trust whenever local membership drops below 25 threat- en employees with loss of assets for the first time Apart from the fact such GCIU procedures are permissive rather than mandatory, I fail to see that these differences are of significance to the issue before me Respondent advances no applicable authonty to convince me other- wise 9 Change in relation to employer Respondent's contention here is so speculative and clearly without merit that it is difficult to believe it is ad- 890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vanced with any expectation it could prevail In short, it is urged that because there might possibly be rescission of the Local 788-S charter sometime and GCIU could then order its members to join another local [here Re- spondent ignores GCIU's constitutional option to declare the employees involved members-at-large] which then would further dilute Respondent's employees' nght to control their own affairs and subject them to rules made by another group of outsiders, all of this shows there is a material change in the relationship of the Associ- ation/Local 788-S to Respondent After considering this convoluted proposition, I conclude it deserves no further consideration 10 Change in meeting nghts Again Respondent resorts to imaginative but nonpro- bative argument claiming in substance that the right of GCIU's president to attend or send representatives to attend local meetings, together with the GCIU's presi- dent's access to local books, records, and accounts cause the employees to lose their right to control their meet- mgs by excluding nonmembers as the Association has historically done Respondent also argues that the em- ployees lost the right to form associations as they wish, noting the Association was a nonaffiliated entity Re- spondent continues that this and the GCIU requirement that its local unions affiliate with the local Allied Print- ing Trades Council (APTC) and use the allied trades union label on all printing demonstrates an expansion of the local representative's scope and character beyond its historic limits It seems to me the Association's members exercised their right to form associations as they wished when they voted to affiliate, and it is Respondent who seeks to deny them that right For the rest, Respondent's contentions regarding the restrictive effect of certain internal union rules on employees' right to control local meetings and the pro forma membership in APTC together with the use of a union label as evidence of loss of identity are not persuasive Compare National Posters, supra 11 Inability to affect union policy It is certainly obvious that a small independent union affiliating with an International will most probably have little to say regarding International policies, whereas it could easily change its own rules and policies prior to af- filiation Accepting this truism, it is just as true of the many other small Independents the Board and courts have permitted to affiliate with International unions That does not mean the local does not retain the author- ity to revise its controlling bylaws so long as they do not conflict with the GCIU constitution or laws The GCIU constitution specifically provides for such amendments, and it is worth noting, as previously discussed, the Asso- ciation's existing bylaws remain in effect and have not been rejected or even criticized by the GCIU so far as this record shows With respect to GCIU rules requiring 5 consecutive years of membership as eligibility for International office and 2 years of existence before a local can send a dele- gate to the International convention, these internal rules seem neither extraordinary nor unduly harsh and have no bearing on whether the local retains its position as the continuing bargaining representative for the unit it repre- sents I need not comment on Respondent's dire predictions of what might happen if Respondent's employees at- tempted to withdraw from the GCIU Such speculation is neither probative nor inclined to produce reliable con- clusions Suffice it to say Virginia is a right-to-work State leaving employees free from required union mem- bership as a condition of employment, and the Supreme Court has recently decided employees are free to resign from union membership at any time they choose, not- withstanding umon rules to the contrary, NLRB v Elec- trical Workers IBEW Local 340 (Royal Electric), 481 U S 573 (1987) Respondent has the burden of proving a change of identity of its employees' bargaining representative as a result of affiliation Insulfab Plastics, 274 NLRB 817, 821 (1985), enfd 789 F 2d 961 (1st Cu 1986) It has not done so The officers of the Association continued in place as officers of Local 788-S The Association's bylaws remain in effect The Association's assets have not been surren- dered to the GCIU The Respondent was advised after the affiliation that Local 788-S would continue to admin- ister the existing contract without changes It has done so, and the contract has continued in effect throughout as term Respondent has discussed changes in work rules with the officers of the Association/Local 788-S since the affiliation and the chartering of Local 788-S In simi- lar circumstances, the Board has refused to find that some restnctions, such as those raised by Respondent and discussed above, placed on local union operations by International Union constitutions are sufficient to disturb the local union's continuing status as exclusive bargaining representative See, e g, May Department Stores, supra, National Posters, supra New Orleans Public Service, supra 12 Conclusions The affiliation has not produced a change "sufficiently dramatic to alter the utuons identity " NLRB v Fi- nancial Institution Employees, 475 U S 192, 206 (1986) I therefore find that, inasmuch as minimum due-process re- quirements were met during the affiliation process and the affiliation process has not given rise to a question concerning representation, Local 788-S is the exclusive bargaimng representative of Respondent's employees in the appropriate unit descnbed above Accordingly, it necessarily follows that by refusing to recognize and bar- gain collectively with Local 788-S as the representative of those employees, Respondent has violated Section 8(a)(5) and (1) of the Act B The Failure to Remit Deducted Union Dues to the Union The collective-bargaining agreement between the As- sociation and Respondent contained no requirement that Respondent deduct union dues from employees' pay- checks and forward those moneys to the Association There was, however, as Respondent's president William Kelly agreed, an agreement between Respondent and the , 1 .1 W FERGUSSON & SONS 891 Association that Respondent would deduct dues pursuant to appropriate authorization from employees, and trans- - mit those funds to the Association Prior to the affiliation the monthly dues were $2 By letter of May 24, 1988, James Alley, in his capacity as Local 788-S president, advised Respondent the dues were changed to 1 hour's pay per month, and requested Respondent to adjust its deduction of dues accordingly Upon receiving this letter, Respondent decided to contin- ue to deduct the $2, but to hold it in escrow for those employees who still wanted their dues withheld Re- spondent did not honor the request to increase the with- holding to 1 hour's pay, but continued the 52-per-month deduction and placed the money in escrow where it re- mains Respondent received no signed authorization from individual employees requesting the increase in withhold- ing The complaint alleges, in haec verbs Since on or about June 1, 1988, Respondent has failed and refused to remit to the Union membership dues deducted by Respondent from members' pay- checks pursuant to the Union Security provision in the current collective-bargaining agreement There is no union-security provision in the collective- bargaining agreement other than a statement that Re- spondent approves of employee membership in the Asso- ciation The agreement to deduct dues seems to be an oral understanding that has hardened into established practice outside the collective-bargaining agreement The only issue before me regarding the dues is whether the placing in escrow and refusing to remit deducted dues to Local 788-S are violative of the Act The General Coun- sel does not argue that the failure to increase the amount of dues deducted is unlawful, and the absence of individ- ual employee authorizations of such an increase indicates there is wisdom in this decision Respondent's conduct in failing and refusing to remit checked off dues to Local 788-S which is, as a matter of law, the exclusive collective-bargaining representative of Respondent's employees_ in the unit above found appro- priate for purposes of collective bargaining and merely a continuation of the Association under another name, as required by its admitted agreement with the Association and established practice, without giving Local 788-S notice or opportunity to bargain about this conduct, con- stitutes failure and refusal to bargain collectively with its employees' representative and violates Section 8(a)(5) and (1) of the Act W S Smith Electric, 292 NLRB No 15 (Dec 30, 1988) (not reported in Board volumes) C The Janice McKinney Incident On or about August 11, Alley appointed McKinney to act as recording secretary of Local 788-S until an elec- tion could be held McKinney was subsequently elected to the position on September 25 Alley notified Respond- ent of this election by letter of September 26 10 Between '° Alley was discharged by Respondent in July, but continued as presi- dent of Local 788-S the dates of appointment and election McKinney, on or about August 22 came to the office of John Rudd, Re- spondent's general manager, finishing division, and ad- vised she was there to represent employee Barbara Ward who was being summoned to the office to discuss alleged insubordinate conduct directed at Assistant Supervisor Jerry Short Rudd asked McKinney if she was there as a representative of "the GCIU Association or the J W Fergusson Association" McKinney responded she was present as a GCIU representative Rudd told McKinney that Respondent did not recognize the GCIU affiliation and asked her to leave She did Rudd then called em- ployee Herlong in and asked who he represented, the GCIU or the Association He answered that he repre- sented the Association Rudd then permitted Herlong to remain during the investigation of the Ward incident The General Counsel alleges the refusal to permit McKinney to represent Ward constitutes a refusal to bar- gain with Local 788-S in violation of Section 8(a)(5) and (1) Respondent defends on the grounds the GCIU was not the bargaining agent and therefore no duty to meet with McKinney existed, and the right to representation discussed in Weingarten" does not come into play be- cause there is no evidence Ward requested representa- tion These defenses cannot prevail because Local 788-S is the Association under another name and is the legiti- mate collective-bargaimng agent of Respondent's em- ployees, and because the issue is not Ward's right to rep- resentation as explained in Weingarten It is clear that McKinney was not allowed to remain because she was a Local 788-S representative This is nothing more than a consistent extension of Respondent's position that the af- filiation was invalid and Respondent need not recognize or bargain with Local 788-S The rejection of McKinney was part and parcel of this position and therefore did violate Section 8(a)(5) and (1) of the Act That Alley was no longer an employee when he appointed McKin- ney is irrelevant Respondent refused to let McKinney represent the employee because she purported to be a Local 788-S representative Alley's status as president was not a reason for rejecting McKinney even though Respondent now raises it D Changes in Lunch and Breaktimes On May 24, Alley, acting as president of Local 788-S sent Respondent a letter reading, in relevant part, as fol- lows It was discussed in great length at our union meeting on May 22, 1988, the Company changing the work rules that affect the working conditions of the employees, and not first negotiating the rule changes with the designated representative I be- lieve it would be in the best interest of the Compa- ny and the employees at J W Fergusson plant that all new rules and revised rules be first brought to the attention of Local 788-S and in accordance with the National Labor Relations Act 11 NLRB v J Weingarten, 420 U S 251 (1975) 892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On June 2, employees petitioned Respondent to change lunch and breaktimes by transferring 5 minutes from the afternoon break to the lunchbreak, thus dimin- ishing the afternoon break by 5 minutes and enlarging the lunch period by 5 minutes The petition was signed by 47 employees, including James Alley, Association Treasurer Frances Piacentim, and Association Secretary Patricia Harris I do not agree with the General Counsel that It is clear these union officers did not sign in their official capacity Their officers were known to employ- ees and employer alike and, absent some disclaimer, it cannot be said these persons "clearly" shed their official identity for the purpose of signing this petition On June 24, Respondent granted the request and so notified the employees by posted notice The General Counsel contends this 5-minute shift vio- lated Section 8(a)(5) and (1) because it was affected with- out affording the Union an opportunity to bargain there- on I disagree Local 788-S obviously knew from the par- ticipation of its own officers in the petition that the pro- posed changes were before Respondent, yet it made no request to bargain on the subject during the 22 days be- tween petition and grant, ample time within which to make such a request On this evidence it would be diffi- cult indeed to conclude Local 788-S had no reasonable opportunity to request bargaining on a subject it was well aware was being considered by Respondent Wheth- er Respondent would have bargained with the Union as the Association or as Local 788-S is questionable but a conclusion either way is speculative It might even be argued that the participation of Alley and other Local 788-S officials in the petition waived bargaining on the subject and/or constituted a request on behalf of Local 788-S and those It represented that the changes be made as they were Alley's letter of May 24 is not, strictly speaking, a request for bargaining although it may argu- ably be construed as such It merely reports a discussion, not a conclusion, at a union meeting and the belief of Alley that it would be best if Respondent brought new rules and revisions to the attention of Local 788-S before implementing them This letter did, of course, put Re- spondent on notice that Local 788-S would like to know about changes before they were implemented, but this is a pretty weak bargaining demand, if it is one In any event, the Board's statement in Peerless Food Products, 236 NLRB 161 (1978), "But not every unilateral change in work rules constitutes a breach of the bargaining obligation The change unilaterally imposed must, initial- ly, amount to a 'material, substantial, and a significant' one, quoting Rust Craft Broadcasting, 225 NLRB 327 (1976)," remains the controlling precedent, Adair Stand- ish Corp, 292 NLRB 890 (1989), and the mere shift of 5 minutes from break to lunch does not meet the material, substantial, and significant test Nothing in the various cases cited by the parties convinces me the application of the Peerless Food standard is not appropriate to the issue before me or that the facts in this case require a conclu- sion different from the one I make The allegation that the break and lunchtime changes violated Section 8(a)(5) and (1) of the Act is dismissed CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Local 788-S is a labor organization within the mean- ing of Section 2(5) of the Act 3 At all times material, Local 788-S has been the ex- clusive representative for purposes of collective bargain- ing in the following described unit appropriate for col- lective bargaining within the meaning of Section 9(b) of the Act All Loopers, Slitters, Make Ready Helpers, Technicians, Helpers, Floor Sweepers, Technicians, Cylinder Inspectors, Make Ready Men, Doctor Ma- chine Operators, Inspectors, Wrapper, Pouch Catcher, Joggers, Apprentices in Bindery, Porters, Pouch Operator, Cutters and Press, Wash up, Mis- cellaneous Maintenance and Printing Division Em- ployees, employed by the Respondent at its Rich- mond, Virginia facility but excluding all Warehou- semen, Office Clerical Employees, Salesmen, Truck Drivers, Department Foremen, Guards and Super- visors as defined in the Act 4 By refusing to recognize and bargain collectively with Local 788-S as the representative of the employees in the appropriate unit described above, Respondent vio- lated Section 8(a)(5) and (1) of the Act 5 By failing and refusing to remit checked off dues to Local 788-S, pursuant to valid dues-checkoff authoriza- tions executed by its employees, Respondent violated Section 8(a)(5) and (1) of the Act 6 By refusing to recognize a representative of Local 788-S as a representative of its employees, Respondent violated Section 8(a)(5) and (1) of the Act 7 Respondent did not violate the Act by changing lunch and break times on or about June 24, 1988 8 The unfair labor practices described above affect commerce within the meaning of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed12 ORDER The Respondent, J W Fergusson & Sons, Inc, Rich- mond, Virginia, its officers, agents, successors, and as- signs, shall 1 Cease and desist from (a) Refusing to recognize and bargain collectively with Local 788-S as the exclusive bargaining representative of the employees in the following unit All Loopers, Slitters, Make Ready Helpers, Technicians, Helpers, Floor Sweepers, Technicians, Cylinder Inspectors, Make Ready Men, Doctor Ma- 12 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses J W FERGUSSON & SONS 893 chine Operators, Inspectors, Wrapper, Pouch Catcher, Joggers, Apprentices in Bindery, Porters, Pouch Operator, Cutters and Press, Wash up, Mis- cellaneous Maintenance and Printing Division Em- ployees, employed by the Respondent at its Rich- mond, Virginia facility but excluding all Warehou- semen, Office Clerical Employees, Salesmen, Truck Drivers, Department Foremen, Guards and Super- visors as defined in the Act (b) Failing and refusing to remit checked-off dues to Local 788-S pursuant to valid dues-checkoff authoriza- tions executed by its employees (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the nghts guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Recognize and bargain collectively with Local 788- S as the exclusive collective-bargaining representative of employees in the appropriate bargaining unit descnbed above (b) Remit to the Union the dues it deducted from its employees' wages after April 11, 1988, with interest as prescribed in New Horizons for the Retarded '3 " 283 NLRB 1173 (1987) Interest on and after January I, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as fiet out in the 1986 amendment to 26U SC § 6621 (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amounts due under the terms of this Order (d) Post at its facility In Richmond, Virginia, copies of the attached notice marked "Appendix " 14 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 14 If this Order is enforced by a judgment of a United States court of appeals, the words m the notice reading "Posted by Order of the Nation- al 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"