Nichi Bei Times Co.

National Labor Relations Board - Board Decisions

Oct 28, 1975

221 N.L.R.B. 149 (N.L.R.B. 1975)

NICHI BEI TIMES COMPANY 149
Nichi Bei Times Company and Nichi Bei Times
Workers' Association . Case 20-CA-9766
October 28, -1975
DECISION AND ORDER
BY CHAIRMAN MURPHY -AND MEMBERS
FANNING AND JENKINS
to the Association, unilaterally reducing the working hours
of unit employees and withdrawing recognition of the
Association as the exclusive bargaining representative of its
employees in an appropriate unit; and whether Respon-
dent maintained an unlawful no-solicitation rule in
violation of Section 8(a)(1) of the Act.
Upon the entire record,' including my observation of the
witnesses and after due consideration of the brief filed by
the parties, I make the following:
On June 30, 1975, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions combined with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this'proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Nichi Bei Times
Company, San Francisco, California, its officers,
agents, successors, and' assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge:
This case was heard before me in San Francisco,
California, on various days in April 1975. The charge was
filed by the Nichi Bei Times Workers' Association, herein
called the Association, and served on Respondent on
November 29, 1974. The complaint which issued on
February 10, 1975, alleges that Respondent violated
Section 8(a)(1) and (5) of the National Labor Relations
Act: Posttrial briefs were filed by the General Counsel and
by the Respondent.
The basic issues herein are whether the Association is a
labor organization within the meaning of Section 2(5) of
the Act; whether Respondent had an obligation to bargain
collectively with the Association as the majority represent-
ative of its employees in an appropriate bargaining unit; if
so, whether Respondent violated Section 8(a)(5) of the Act
by refusing to furnish wage information on unit employees
1 Certain errors in the transcript are hereby noted and corrected
2 All dates hereinafter will be 1974 unless otherwise indicated.
3 It was not distributed to the mailroom employees, Mrchi Onuma and
Charles Tanamachl.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation with its- principal
office and place of business in San Francisco, is engaged in
the business of commercial printing and of publishing a
newspaper, "The Nichi Bei Times." During the past fiscal
year, in the course and conduct of said business operations,
Respondent has received -- gross revenues in excess of
$200,000 and has subscribed to United Press International,
an international and interstate news service.
The complaint alleges, Respondent admits, and I . find
that , Respondent is, and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
H. THE FORMATION OF THE ASSOCIATION AND ITS
STATUS AS A LABOR ORGANIZATION
On July 11, 1974,2 a group of about, 18 of Respondent's
employees met and decided to form an Association for the
purpose of obtaining better wages and working conditions.
Thereafter a survey was distributed among employees 3 to
determine what demands to present to Respondent. At a
July 18 meeting the results of the.-survey 4 were tabulated
and it was agreed to demand a $1-an-hour raise. Between
July 19 and 22, Akio Aoyagi, Rui. Takashima, and Iwao
Kawakami were elected to the negotiating committee and
it was decided to present -a written demand to Respondent
covering wages, vacation,, pension, and health insurance.
Several employees drafted-a demand letter which was later
approved by the entire group.
On or about August 13, at another meeting, certain-rules
for the Association were adopted, including the handling
of dues and the scheduling of semimonthly, meetings.
Glenn Omi was elected treasurer and it was decided that
no other officers were necessary at that time. It was further
decided that collection of dues would commence for the
month of August.5 Around July, 24 or within a week
thereafter, membership cards were issued.
Section 2(5) of the Act defines `a labor organization as
any organization of any kind; or any agency or- employee
representation committee or plan, in -which employees
participate and which exists for the purpose, in whole-or in
part, of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment,
4 About 13 of the surveys were returned -
5 This is from the testimony , of Aoyagi. Glenn Onu thinks this meeting
was held July 24. The facts herein are mostly, undisputed, and unless
otherwise indicated are from the testimony of Akio Aoyagi. '
221 NLRB No. 33
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or conditions of work. Clearly the Association meets these
requirements . N.E.R.B. v. Cabot Carbon Co., 360 U.S. 203
(1959). Accordingly, I find that the Association is a labor
organization within themeaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
1. The July 23 meeting
Two or three days prior to July 23, Kawakami and
Aoyagi approached Respondent's president, Schichinosuke
Asano, told him they were representing the employees and
would like to have a meetings Asano agreed and the
meeting was held on July 23 during the lunch hour. Asano,
Secretary and, General Manager Tsutomu Umezu, board of
directors member Iwao Namekawa,7 and about 20 employ-
ees s attended the meeting.
Asano began the meeting by reviewing the history of the
Nichi, Bei Times and its role in The community. He
emphasized that since Respondent was for the Japanese
community's service it could not expect sufficient income
to pay sufficient wages . Since he spoke in Japanese,
Kawakami summarized his statements in English. Then
Aoyagi, spoke. He,agreed that Respondent should serve the
community but said the employees wanted better wages
and also wanted a clear wage system. He suggested that
certain improvements, in management practices and
changes in editorial policy would increase circulation and
income without a concomitant increase in cost. Umezu
admitted that he had no aggressive policy to-improve the
paper but said he' was willing to change.
2. The July 24 demand
After the July 23 meeting was over, Aoyagi, Omi, Stan
Kadani, and Yuichi Murai remained and had a brief
conversation with, Namekawa. Namekawa suggested that
he and Aoyagi- should have dinner and talk. When
Namekawa left, the four- employees decided it would be a
good idea to send a letter to Respondent. They drafted a
letter, read, it, to various other employees, and then
prepared about 20 copies in English and Japanese. r These
copies - were distributed to most employees except the
mailroom employees and Tanamachi and Onuma.
On July 24 copies-were also given to Namekawa, Umezu,
and board of directors member Kazuma D. Ikezoe. The
letter read:
We workers of Nichi Bei Times made proposals on
Aug. 9th of last year and March 1st. of this year, for
improvement of the company. We also used, every
opportunity to make clear individually the need for
improvements, and, each time the management agreed
to 'take action.
But during the past year, the actions that were
promised
1) Better working conditions.
6 There is no evidence that the Association was mentioned at this time.
4 On October 2, Asano remained chairman of the board, Umezu became
secretary , and Namekawa became a vice president.
2), Improvements in the print 'shop to make
more money
3) Re-evaluation of newspaper content to
improve the paper and thereby increase subscrip-
tions.
4) Improvements in all aspects of advertising
policy.
5) Better service to readers. -
6) To have a meeting- of all workers and
management as a whole body in order to discuss
and begin to concretely carry out the above plans.
NONE of these Agreements have been fulfilled!!!
With this as a background , we workers , dissatisfied
with conditions and unsure of our future, formed the
NICHI BEI TIMES WORKES [SiC] ASSOCIATION in order to
unite together to work for a better future.
At this time , the NBTWA has decided to negotiate
with the management with Kawakami , Aoyagi, ` and
Takashima as our representatives.
The following are our demands:
We low-wage earners , because of inflationary price,
especially of food, have no, chance of even saving
money or finding other sources of income . We can only
hope for increases in our monthly incomes (calculated
on an hour basis). Is it difficult for management to
understand the difficulty [sic] we face due to our low
incomes? Rather than showing a genuine concern for
our situation management has only made token -efforts
to raise our wages by increasing subscription rates and
paying us out of stock dividends.
If, this continues , we will never be able to gain
anything . We have already waited for one whole
year! ! ! This time, we must demand a clear reply in
writing to each of the following-by the deadline on July
30:
1) A $1.00 raise for everybody, to begin Aug. 1
1974.
2) Vacation plan. 1-5 year worker - 1 week
per year. 6-10 year worker - 2 weeks per year.
11 year worker - 3 weeks per year
3) Establish a pension plan, re-evaluate insur-
ance plan.
4) A clear system for wage rate.
5) Managements opinions on ideas, presented
during the past year, and explanation of why they
weren't implemented.
On July 24 Aoyagi and Kawakami delivered a copy of
the above document to Asano. Aoyagi read the Japanese
version of the letter to Asano, told him the employees were
concerned regarding. Respondent's future and' would like
to help to improve the Company so that they could obtain
better wages and working conditions. He further said the
employees thought that the best way of achieving these
goals was to form an association, - that most of the
employees wanted the Association and had joined it, and
that he, Takashima, and Kawakami had been selected to
represent the employees. Asano said he would think about
8 The mailroom employees were not present nor were editorial
employees Charles Tanamachi and Michi Onuma.
NICHI BEI TIMES -COMPANY
the demands listed at the end of the letter, that he really
appreciated the suggestions and would work hard to meet
the suggestions. There was no explanation as to which
employees or classification of employees he was referring.
Aoyagi testified that when he referred to employees he had
a certain unit of employees in his mind and Asano did not
question as to whom he represented.
3. The July 27 Namekawa-Aoyagi, conversation
On July 27, in Respondent's parking lot, Namekawa
approached Aoyagi and asked if he was-a radical student
sent from Japan to organize a labor union and disrupt
Respondent. Aoyagi_ said he never got involved in any
radical student movement. Namekawa said he had read the
July 24 demand and considered outrageous the demand for
a $1 wage increase. Aoyagi replied that was because
Namekawa had no ideas for improvement , that an increase
in income of $300 to $400 daily. would finance such an
increase . Namekawa said he objected to the use'of the
word "demand" in the July 24 letter and asked Aoyagi to
change it. Aoyagi agreed. Namekawa further said that
posting the July 24 letter was illegal.9 Aoyagi said he did
not know of any such'law. Namekawa said the employees
who were not members of the Association felt pressured
and uncomfortable. Aoyagi said he did not realize this
problem existed and was willing to discuss it if it did exist.
Aoyagi also suggested that Respondent hold -a meeting of
employees to explain the "inner workings " of the Company
and reminded Namekawa that he had promised such a
meeting several times in the past.
4. The meeting in the last week of July
Between July 24 and 30, either Asano or'Umezu asked
Aoyagi and Kawakami to the conference room to discuss
ways to improve Respondent's operation. Umezu, Asano,
Ikezoe, Vice President Yasuo Abiko, Treasurer Tsugio
Kobayashi, and another person whom Aoyagi thinks is
Director Noboru Shirai were present. The meeting lasted
from 2-1/2 to 3-1/2 hours. Aoyagi repeated the suggestions
contained in the July 24 letter °and made'some additional
ones . He emphasized that the requested wage increase
could : be made if - they worked together to improve
Respondent's operations. Asano said a wage increase was
probably possible, that 'subscription rates in Japan had
doubled so Respondent was planning to raise its subscrip-
tion rate. Aoyagi objected that this was just'a temporary
solution and since Asano insisted that Respondent serve
the'community,'just to raise'the advertising and subscrip-
tion rate was not reasonable. Aoyagi said the problem was
poor management. Shirai said the employees were asking
too much. They also discussed vacations and the other
demands set forth in the July 24 letter. The management
representatives said they would have to study the demands.
Aoyagi said 'employees had become suspicious of each
other over differences in wages, that they had to have a
clear wage system. Umezu said Respondent could not give
them a clear wage system. Asano said they were expecting
9 The letter had been posted on the stai rway, in the lunchroom, and
opposite the timeclock
10 This is a composite of the testimony of Aoyagi and Umezu.
151
a professional printing engineer from Japan which should
result in improvement, and that they would consult with
another Japanese newspaper relative to increasing sub-
scription rates.
5. The July 30 meeting
On July 30, Asano and Aoyagi agreed to a meeting
which was held July 31. At the July 31 meeting, they first
agreed that the meeting would last only I hour. Nameka-
wa, Umezu, Abiko, and about 12 employees were present.
Namekawa stated that the other Japanese-American
newspaper was facing the same problem as Respondent
and that Respondent's employees were not the only ones
suffering from low wages. Employees' Kadani, Kawakami,
and Kimi Shinto said something in criticism of such
rationalization. Aoyagi said they wanted Respondent to
pay full premium for health and dental insurance'and they
wanted a pension plan. Umezu said it was impossible to
pay the full premium` and that there must be some law
prohibiting a small company such as Respondent from
providing a pension plan, that he would have to consult
with a professional. Umezu also said he had an aggressive
management policy and he was planning 'to improve the
job' printing section. He suggested that the print shop
employees should get together to discuss improvement of
that operation. Someone from management said the
requested vacation plan' was a good idea but made no
definite commitment.'0
6. The August 2 demand
Immediately following the July 30 meeting with Respon-
dent, - Omi, Kadani, Murai, and Aoyagi drafted the
following document protesting management 's attitude at
the meeting, reasserting their earlier demands and had
members of the Association sign it.ii
We are not satisfied with the replies made by the
management of the Nichi Bei Times at the meeting
held on July 31st.
1. We continue to request for $1 an hour raise.
Retroactive to July 29.
2. We are waiting for a reply on a vacationplan for
workers.
3. The, reply made by Mr. Umezu on the pension
and medical plans was not satisfactory and we expect a
positive answer.
4. We want the management to give us a clear
picture of the wage system,for all workers.
5. In spite of the high cost of living, the company
did not recognize this situation and this is irresponsible
of the company when it is brought to their attention by
the workers.
We would like to have the company reply to the
above points by Friday noon, Aug. 9. If the company
does not meet the above requests, we plan to take
drastic steps.
11 As with most other documents involved herein , it was written in both
English and Japanese . The version set forth herein is the English. The
translation of the Japanese version is essentially the same.
152
/s/ Iwao Kawakami
/s/ Akio Aoyagi.
/s/ Haruml Matsushita
/s/ Masaru Sano
/s/ Glenn Omi
/s/ Rui Takashima
/s/ Kimi Shinto
DECISIONS OF NATIONAL,LABOR RELATIONS BOARD
/s/ T. Kokame
/s/ K. Miura
/s/ S. Ishida
/s/ Stan Kadam
/s/ Yuichi Murat
/s/ Yuriko Amores
On August 2 or 3, Kadam and Aoyagi presented the
above document to Asano. Aoyagi asked Asano to read it,
pointed out that it had been signed by, employees, and
requested another meeting. Asano agreed to meet on
August 9.
7. -The August 7 meeting
On August 5, following altercations between Tanamachi
and Kadani and Tanamachi and employee Shizue Ishida,
the Association had an emergency meeting at which they
agreed to present the following letter to Respondent:
For the last 12 months, we employees of the NBT
Company have been meeting and discussing ways to
improve the NBT and thereby- increase our low wages.
Throughout this period, we have received [sic] little
cooperation from the NBT management,,and so in July
of 1974,46 formed the NBT Workers' Association to
improve our ability to discuss these issues with the
company.
With the formation of our Association, we presented
five demands to the Company to improve our wages,
the working conditions, and the benefits here.
For the past year we have patiently presented
petitions, proposals, and questions to the management.
These have all been met with little if any response [sic]
by, the Company.
Our latest set of five demands, all completely
reasonable, were rejected by the Company. This latest
rejection was a disappointment and has drawn our
patience thin. Even still, we are willing to further
negotiate.
But added to this situation now . is the abusive
attitude taken by Tanamachi towards certain members
of the NBTWA in particular, and towards the Associa-
tion in general. In particular, we are referring to
Saturday, August 3, 1974, when Tanamachi viciously
verbally attacked one of our co-workers, Mrs. Shizue
Ishida, for some five minutes straight, raising his voice
and yelling, all this not to make a point, but to
intimidate her. When other workers protested this
outrage, they were told by Tanamachi to "shut up."
Further, on Monday, August 5, 1974, Tana'machi
continued this verbal abuse towards another of our co-
workers, Mr. Stan Kadani. But in this instance, he went
even beyond his previous bad conduct of yelling, and
added physical assault. Even' more, ',Tanamachi threat-
ened to "beat up" Kadani in the parking lot after work.
These abuses and assaults are completely unjustifia-
ble, and are a disgrace to the Nichi Bei Times.
We, as members of the NBTWA and as long-time
workers at this company, protest this gross treatment
and file this complaint in writing.
We demand an apology from Tanamachi for his
verbal and,physical assaults on our two co-workers:
Mrs. Ishida and Mr. Kadani. This is the only solution
possible.
We wish to point out that this [sic] situation is not
just a dispute between three individuals, but that it
brings into question the attitude of the entire manage-
ment towards the workers. We urge Mr. Asano,
President of NBT, to take personal initiative to resolve
this situation.
A newspaper has to stand for the principle ofjustice.
But such a , principle is being disgraced within the
company when workers [sic] are verbally and physical-
ly abused. Unless we can recieve [sic ],support from the
company against such injustice, we must appeal to the
community as our only source of support.
We expect definite and positive action from the NBT
^.vfLpoJly vu Luin m^uc.
August 5,.1974
/s/ Yuichi Murai /s/ Masani Sano
/s/ Kivu Shinto /s/ Akio Aoyagi
/s/ Iwao Kawakami /s/ Glenn Omi
/s/ Rui Takashima /s/ Stan Kadani
/s/ Kimi Miura /s/ S. Ishida
/s/ Harumi Matsushita
/s/ Terukumi Kokame
/s/ Yuriko N. Amores
The above document was presented to Asano by Kadani
and Aoyagi on August 5. Aoyagi read the Japanese version
to him. Asano said he,thought the incidents were personal
and Respondent should not be involved, but agreed to a
meeting on August 7 to discuss the situation.
On August 7, about 15 employees met with' Asano and
Umezu. Asano said ' Tanamachi _ apologized for the inci-
dents. Kadani and Aoyagi said they considered . the
incident. as threatening toward the Association from a
person close to management. Asano said he considered it
as a personal matter. Aoyagi suggested that it was
management's responsibility to, control, Respondent's
operation. Aoyagi asked if Tanamachi had any, authority
by virtue of his ownership of some of Respondent's stock.
Asano said- stock ownership confers, no authority, that all
employees are equal. Aoyagi asked if Umezu had started
on pension and vacation plans, and how it was progressing.
Umezu said 'he was still investigating, but promised to give
a definite answer as to vacations by August 9.
8. The August 9 meeting
Abiko, Umezu, and 10 to 20 employees 12 were present at
the August 9 meeting. The occurrences at this meeting are
disputed. Umezu testified that he prepared the following
statement which he read in Japanese and Abiko and
Kawakami summarized in English; he 'made no other
comments nor does he recall any remarks made by
employees.
12 Mural estimated 10 employees and Aoyagi estimated 17, to 20
employees.
NICHI BEI TIMES COMPANY 153
ENGLISH
AUG. 9 1974. not recall Umezu complaining about employees stopping
at Asano's desk during the day to request meetings.
Neither Aoyagi nor Murai recall anything being said about
editorial policy, requesting negotiations in writing or
during work hours without an appointment, or about
meetings with small groups of employees.14
1. The 1-dollar increase of hourly wage going back to
July 29th impossible.
With Sept. 15th as the target, will make efforts to
implement a wage increase by considering the
business situation. The amount of increase in
such a case undecided have already replied
2. Do not recognize its necessity. It is an infringement
of the right of management. Also, cannot agree to
the demand to reveal the salaries of those
managing the business.
3. Have already replied regarding pension impossible
for company to bear the total amount in medical
insurance
4. A. Meddling in the editing is unacceptable no
matter by whom.
B. Consolidation of the printing department to be
carried out speedily as much as possible. Will discuss
concretely with punting department personnel.
The company side cannot agree' to a unilateral
convocation of a meeting by a segment of the
employees. In the future, all employees will be notified
in writing by the company side.
It is strictly forbidden henceforth to request for
negotiations with the company president during work
hours without appointment. If necessary, a request
should be made beforehand to the board.13
Neither Aoyagi nor Murai recalls Umezu reading any
document. According to Murai, Umezu referred to notes
when he mentioned figures and percentages. Aoyagi and
Murai testified in substantial agreement that in the
beginning Aoyagi suggested that management representa-
tives would be responsible for interpreting into English or
Japanese the remarks of management representatives, and
the Association would be responsible for interpreting
employee remarks. Umezu agreed. Umezu said manage-
ment faced financial difficulty, that 70 or 75 percent of
Respondent's income went to wages. He also said that the
rising cost of paper was a factor. Umezw, said they would
grant a wage increase around September 15. Aoyagi and
Shinto inquired as to the amount of increase. Umezu said
the amount of increase was confidential and dependent
upon an individual's productivity, and they had no right to
that information. Aoyagi suggested that even though the
meeting was called by the Association the agenda was
relevant to all employees, so all employees should attend
the meeting . Umezu said that was a good,idea but pointed
put that the differences, in working schedules made that
difficult. Kadani asked why Respondent had not taken
their suggestions for improving job printing. Umezu said
he was willing to meet with the employes in the printing
department to discuss ways of improving, the job printing
operation.
Umezu said the pension plan was under study and
stressed that such a plan was difficult for a small company,
that they would have to consult with an expert. Mural does
13 This translation is by the official translator for the proceedings herein.
14 This latter was in response to leading questions related to that portion
of Umezu's prepared statement which translates , "The company side cannot
agree to a unilateral convocation of a meeting by a segment of the
employees."
9. The August 15 meeting
On or about August 15,15 Umezu came into the
lunchroom and announced to the six or seven employees
present 16 that Respondent had decided to grant additional
vacation benefits. The new vacation plan would be 1
week's vacation for employees with 1 to 5 years' seniority
and 2 weeks after 6 years. Umezu asked if they accepted
the plan. Some of the employees argued that employees
with 10 years' seniority should receive more than 2 weeks,
however, Aoyagi testified, "At the end of the discussion,
we settle and we accept his plan."
10. The August 23 demand
On August 23, the following document was submitted to
Respondent.
This is to notify the Nichi Bei Times management
that the NBTWA has waited long enough.
We reaffirm our demands for:
1. $1.00 per hour raise for all workers
Retroactive to 7-29-74
2. a clear explanation of the wage rate for all
NBT employees, including the management
3. a pension plan for the company, and
medical insurance paid completely by the compa-
ny
4. a clear explanation of management plans
to improve the income of the Nichi Bei Times,
specifically -
A. improving the quality of the newspaper, especially
the editorial policies
B. improving the operations of the print shop, increas-
ing efficiency and business
If these demands are not fulfilled by August 28,
1974, we will have no other course but to seek support
from outside the company. We will begin distributing
the attached public statement of the NBTWA in that
event.
We request that the company call a meeting for
August 28, 1974, 12:30 pm, attended by all employees
of NBT, to discuss this current situation.
8-23-1974
Nichi Bei Tunes Workers' Association
Attached thereto were leaflets soliciting public support.
15 Umezu had previously promised that he would show up on that date
and relate Respondent 's decision on vacations.
16 There are normally 10 to 13 employees in the lunchroom at noon.
Oms, Kadani , Aoyagi, Kawakami, Shinto, and Harumi Matsushita were
present.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. The August 28 change in lunch and
coffeebreak policy
On August 27, the Association met and formulated its
position for the next meeting with Respondent. This
included a compromise wage demand, earlier deadline,
another meeting, space in the newspaper to publicize their
position, and a demand for a change in the lunch and
coffeebreak policy.
On August 28, Umezu came into the lunchroom around
noon. About seven employees were present. Umezu said
Respondent had decided to give employees 50 minutes for
lunch, and 20-minute morning and afternoon breaks.17
Shinto asked if all employees had to take lunch and breaks
at the same time. Umezu said this was not necessary
because work schedules were not uniform.
12. The September 17 announcement of no-
solicitation rule and answer to the Association's
demands
On September 17 another meeting was held. Umezu,
Namekawa, Ikezoe, and about 20 employees were present.
At the outset Umezu accused the Association of working
with a society known as New Dawn to distribute leaflets
soliciting public support for the Association in envelopes
stolen from Respondent. Kadani, who is a member of New
Dawn, denied this.is Namekawa said some people were
saying the Association was socialist. The employees
protested this label. Umezu read and distributed the
following rules and regulations:
1. No signs or posters may be posted on bulletin
boards or any other parts of the premises of the Nichi
Bei Times by any person or persons without written
consent of the managing director.
2. No meetings of employees for purposes of
organizing or forming or propagating the contentions
of any employees' association will be permitted on the
premises of the Nichi Bei Times, or during working
hours. By law, the Nichi Bei Times is not required to
pay any employee for time spent in any such meeting
or meetings, and any absence from work by any
employee or employees for such purpose will result in
an appropriate reduction in wages and earnings.
3. No equipment or materials or facilities of the
Nichi Bei Times, including, but not limited to, presses,
cameras and type, is permitted, without prior written
authorization from the managing director.
4. Any request of employees or any purported
association of employees to meet for discussions of
working conditions or other aspects of employment
must be made, in writing, to the managing director.
As to rule 1, the employees protested that their posters
destroyed nothing so they didn't think such a rule was
necessary. As to rule 3, Umezu said they were not to use
Respondent's Japanese type. Aoyagi said he was sorry, he
knew it was not right but the Association had decided that
it would not damage anything to use Respondent's press.
Umezu was speaking in Japanese. Aoyagi asked him to
translate into English, but Umezu said that was unneces-
sary and did not do so. Umezu then read and translated
the following reply to the Association's demand. A
Japanese version was distributed.
1. $1 Pay raise retroactive July 29th is impossible as
replyed before. We will try to give you some pay
raise effective Sept. 15, but its increase rate is not
decided yet.
2. Management can not, clarify, wage rate of the
employees and management staffs. We believe
such action is not necessary.
3. We already made a reply on the proposed pention
[sic] plan.
4. Editing: The right of selection or rejection of news
items belongs exclusively to the person who is
editing so that indiscrimination, interference,
meddling or restraint are not permitted under any
circumstance.
An attempt to increase earnings is to be made through
the consolidation of the printing department.
Shinto asked when the raise would appear on their
paychecks. Umezu said it would be after the next
paycheck. One of the management representatives said it
was past 1 p.m. and the meeting would have to end. Some
of the employees, including Kadani, protested manage-
ment's action in closing the meeting without any serious
discussion of the Association's demand or Respondent's
reply.
13. The change to 5-day publication
Around the end of September, the employees learned
that Respondent was planning to go from 6-day publica-
tion to 5-day. On, or about October 1, Aoyagi and several
other members of the Association approached Umezu, told
him of their concern-regarding this change, that employees
had not been notified, and asked if he would explain any
changes in wages. Umezu's only reply was, "Oh yeah? You
didn't know? You didn't know we planned to change to
five-day system." He then said he would let them know
regarding the effect on wages.
On October 2, Kadani, Omi, Aoyagi, Murai, Kawakami,
and Shinto talked to Asano. Aoyagi explained that they
had gone to Umezu but received no answer and had
decided to come to the president to get a clearer answer
about the 5-day publication system and its effect on wages.
Asano said they could have a meeting the next day.
On October 3, Asano, Umezu, and Abiko met with about
10 to 14 employees in the lunchroom around noon. Asano
said Ikezoe was Respondent's new president and gave the
names of the other officers. Someone inquired if their
17 In view of this, the Association never made its proposal relative to punted by Respondent for a customer. The envelope did contain New
breaks.
18 In an effort to prove this, Umezu unsealed an envelope in the meeting
Dawn material but contained nothing from the Association
NICHI BEI TIMES COMPANY '
wages would be changed with the 5-day system. Umezu
said they would work from 8 a.m. to 5 p.m. 5 days 19 with
no wage change. Someone inquired as to the people who
worked 8 hours. on Saturday and received 4 hours
overtime. There was no answer. Omi said, "You cannot
change our wages and working schedule without asking us,
and an NLRB Act says, `without consulting employees
company cannot make any unilateral changes in the wages
and working schedule.' " Umezu and Ikezoe then had a
short discussion which the employees could not near.
Umezu said they would- get a pay raise. Aoyagi asked the
amount of the increase. Umezu replied that he could not
say how much because each person had different prod-
uctivity. Aoyagi said it was all right to discriminate
according to productivity when wages were $5 an hour' but
at $2 and $2.50 an hour differences in wages based on
productivity had no validity. - He said at least employees
should receive the same wages. Umezu said it was a basic
rule of Respondent not to disclose wages and productivity
of each individual.
Ikezoe testified that he was out of the office on October
3. When he returned he was told that several employees
were looking for him. So he met with Aoyagi, Omi,
Kadoni, and Murai. They asked what was going to be done
about the pay when the 5-day week began and implied
serious consequences if they received a pay cut. Ikezoe, said
he would talk to Umezu.
Toward the end of the first week in October, Omi,
Murai, and Aoyagi approached Umezu and Ikezoe. Aoyagi
said they had to have a clear answer as to the effect the 5-
day system, would have on wages and requested that
employees be given 4 hours extra so they could earn the
same amount on Saturday. Either Ikezoe or Umezu said
that on a temporary basis Respondent would give them 4
hours' pay on Saturday without working on Saturday.
14. The October 11 meeting
On October 11, Umezu met with about 10 employees. He
read the following in English and translated it into
Japanese. The statement was also distributed to the
employees present:
Minimun [sic] working hour - 35 hrs per week
Bonus of 4 hrs per week to be given only to persons
who work 35 hours or over
Overtime -to be given over 40 hours (actual worked
time)
Parttime workers not included
Office not included
Above condition temporary -
There is some dispute as to what transpired at this
meeting. Aoyagi testified that someone inquired why part-
time workers were excluded. Umezu did not answer. Then
someone asked why office workers were excluded. Umezu
19 Previously employees had worked 8 a.m. to 4 p.m. 5 days a week and 8
a.m. to 12 noon on Saturday. The hnotypists and the pressmen worked on
155
replied that traditionally Nichi Bei Times- office workers
are not the same as other production workers "and,
traditionally, they have a different system so they cannot
be included. Someone said they understood. Aoyagi said
part-time workers should be included because they come
regularly and they have been coming in on Saturday at a
regular time so they should receive the same benefits as
other employees. Umezu: said part-time employees were
different and he could not accept the suggestion that they
receive the bonus and benefits. Someone asked what bonus
meant. Umezu said this was money to cover the Saturday
wages. Kadani said, "You promised to give us pay raise,
you didn't and now you give us note like this. We cannot
accept that."
Umezu's testimony differs in one significant Tespect. He
testified that when someone inquired as to why office
employees were not included he replied that the office
employees, were not included because,they worked strictly
a 5-day week. After the meeting, office employee Ruth
Toriumi reminded him that she worked a 6-day-meek and
he agreed that she should have been included in the bonus
plan. I credit Umezu in this regard. Both Aoyagi and
Umezu impressed me as generally honest reliable witness-
es. However, I find that Umezu's account as to his reply is
inherently more consistent. It is obvious from previous
discussions between employees, and management and from
Umezu's handling of Toriumi's complaint that the bonus
plan was implemented to compensate for the loss of wages
which would be incurred by employees who normally
worked a 6-day week.
15. The October 11 demand
On October 7 the members of the Association met and
decided to send Kadani and Aoyagi to the National Labor
Relations Board; They also agreed on a draft of a letter to
Respondent to clarify what they were claiming as their
rights. Kadani drafted the letter using some language from
the NLRB pamphlet "Layman's Guide to the National
Labor Relations Act." Sometime between October 8 and
11, Kadani and Aoyagi went to the National Labor
Relations Board. During that visit they showed a Board
agent the draft of the letter they planned to send
Respondent, explained the history of the Association, and
inquired what they could do and what legal rights they
had. The Board agent explained that no recommendation
could be' made or advice given but did give them certain
information. Specifically, the Board agent explained that it
was necessary that the Association represent a majority of
the employees in an appropriate bargaining unit, that they
would have to be able to prove majority representation.
There was some discussion as to the importance of
Respondent's agreeing that the Association represented a
majority of the employees.
After Umezu left the October '11 meeting, some of the
Association members remained in the room and decided to
send to Respondent the letter they had drafted. Kadam
and Aoyagi tried unsuccessfully to find Ikezoe. They then
gave the letter to Abiko. Kadani said, "We come to this
Saturday until 4 or 5 o'clock
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion, I want you to read it and discuss with the other
management." The letter reads:
ATTENTION: Management of the Nichi Bei Times
Company
We, the workers of the Nichi Bei Times Company,
wish to, inform the management. that we intend to
exercise our legal right to collective bargaining.
We wish to clear up any confusion on the part of the
management concerning the Nichi Bei Times Workers'
Association (NBTWA).
The NBTWA formed as an organization of the
majority of workers at the Nichi Bei Times Company
on July 24, 1974. At that time, we notified the Nichl' Bei
Times Company of our organization, and presented our
demands signed as such.
We have issued membership cards, held regular
meetings , and collected monthly dues from all mem-
bers.
We are prepared to prove our majority status by
submitting signed membership cards to a mutually
selected impartial person.
We intend to exercise our legal right to collective
bargaining according to the National Labor Relations
Act, 'in particular Section 9(a) which states,
"Representatives designated or selected for the purpose
of collective' bargaining by the majority of the employ-
ees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such
unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, or other
conditions of employment."
Further, we wish to clarify that our demands are
within the definition of "man datory`subjects," and=thus
require your good faith bargaining. This is clearly
expressed in the National Labor Relations Act in
Section 8(a)(5). Section 8(a)(5) is interpreted by the
National Labor Relations Board as "The, duty to
bargain covers all matters concerning rates of pay,
wages , hours' of employment, or other conditions' of
employment. These are called mandatory subjects of
bargaining about which the ' employer, as well as the
employees' representative 'must bargain in good
faith ...These mandatory subjects of bargaining in-
clude but are, not limited to such matters as pensions
for present and retired employees, bonuses, group
insurance , grievance procedure, safety practices, senior-
ity, procedures for discharge, layoff, recall, or disci-
pline, and the union shop."
With this as a background, we re-emphasize our
demands:
1) $1 per hour raise for all employees to
provide a decent living wage.
2) An open wage system to end the manage-
ment's deciet [sic] at manipulating our wages,
fomenting suspicion and dis-unity amongst the
employees.
3) A pension plan and a medical insurance
plan paid by the company.
4) A clear explanation of management plans to
improve the income of the Nichi Bei Times
Company, specifically:
a) improving the quality of the newspaper, especially
' the editorial policies.
b) improving the operations of the print shop, increas-
ing efficiency and business. -
10-11-74
Signed
Nichi Bei Times : Workers' Association
Later that : afternoon, Ikezoe approached Kadani and
discussed the letter. According to Aoyagi, Ikezoe said he
did not like legal disputes, that he thought there should be
good relations within the Company, all one family. Aoyagi
said he agreed, if possible, Ikezoe suggested that they either
drop the charges or drop' the demands. , Aoyagi first
testified that Ikezoe suggested that he withdraw filing
charges with NLRB. On cross-examination he'admitted he
was confused and he didn't recall whether'Ikezoe referred
to charges or demands. His prehearing affidavit says "drop
demands" Ikezoe testified that he simply asked for, a
meeting concerning the letter and Aoyagi said he couldn't
make 'the decision himself. In view of Aoyagi's admitted
confusion and the fact that after 'Kadani- and Omi arrived
there was no discussion regarding either dropping-demands
or not filing NLRB charges, I credit Ikezoe's testimony
that he only requested a meeting.
Aoyagi called Kadani, Omi, and Umezu -over. Ikezoe
said 'he was new20 and did not know what was going on.
Kadani said, "What do you mean, you have worked here a
long time and even if you were nit president, you knew
what was going on." Kadani asked if he read the
Association's letter. Ikezoe said yes. Kadani asked, "Do
you admit that since July 24, 1974, the Association has a
majority of all, employees of Nichi Bei Times?" Ikezoe said
yes. Kadani said, "We'd like to have collective bargain-
ing." Ikezoe said that's fine. They then discussed a date for
the meeting. llcezoe suggested October, 15 and they agreed
on that date.
Omi testified that Ikezoe said he did not want a legal
dispute, he -wanted to, work together as a happy family. He
further testified:
Stan wanted to make sure that they recognized us, so I
can't remember the exact words, but I remember him
asking if Nichi' Bei Times management recognized
Nichi Bei Times Workers' Association as representing a
majority of the workers at Nichi Bei Times since July
24, such being the sole representative of the workers at
the Nichi Bei Times. Ikezoe said yes, he did. Then he
said, I believe, was Mr. Ikezoe saying that he wanted to
get together to talk to us.
Omi further testified, that Ikezoe proposed a meeting on
October 15 to set a date to have a meeting. The employees
asked, why they could not have a meeting on October ,15.
Ikezoe said they did not have time and they decided that
on October 15 they would set a date for a long collective-
20 He was apparently referring to his new position as president.
NICHI BEI TIMES COMPANY
bargaining session. On cross-examination, he admitted that
Ikezoe said he needed time because he was new.
Ikezoe testified-that he suggested a meeting to talk over
the letter just presented to management, that he emphasiz-
ed the management did not want any confrontation with
the workers. He further said he needed time to study the
letter. He denies agreeing that the Association represented
a majority of the employees. I credit Ikezoe's denial. The
Association had obtained employee signatures on several
documents. In each instance there were either 11 or 13
signatures.21 To a layman unfamiliar with the concept of
excluding certain classifications of employees from an
appropriate unit, this was not a majority. Also, Ikezoe's
asking for time tends to corroborate his testimony that
because of the legal phraseology in the Association's letter,
he had determined to seek legal advice and his request for
time was intended to afford him the necessary time to
consult counsel.
16. The October 15 and 24 meetings
After discussing the matter with other members of
management, Ikezoe attempted to contact his attorney but
learned he would not be in his office until October 21.On
October 15, Ikezoe and Umezu met with the employees.
Although there is some dispute as to why Ikezoe said he
wanted to wait until October 24 to meet, it is agreed that he
did ask for this delay. Ikezoe admits that he did not express
the real reason he wanted the delay, which was to consult
his attorney. On October 21, Ikezoe's attorney referred
Respondent to a labor attorney whom they consulted on
October 23.
On October 24, at 5 p.m., the scheduled time for the
meeting, people were still setting type, so Kadani and
Aoyagi went to Ikezoe and asked if the meeting were going
to take place as scheduled. lkezoe said it was impossible to
finish the newspaper before 5 o'clock and asked that the
bargaining be postponed until the next day.
17. The October 25 meeting
On October 25, Ikezoe, Umezu and Namekawa met with
the employees. Ikezoe read a copy of the following letter,
dated October 24:
Nichi Bei Times Workers' Association:
This is in response to the undated letter addressed to
"Attention: Management of the Nichi Bei Company,"
in which the Association claims that it represents a
majority of our employees.
Please be advised that we doubt that the Association
actually represents a majority of our employees for
purposes of collective bargaining in an appropriate
bargaining unit. Accordingly, we must and hereby do
decline to recognize the Association as the exclusive
bargaining representative of our employees until such
time as the Association has been certified by the
National Labor Relations Board as the majority
representative in an appropriate unit.
Inasmuch as the Association does not represent a
majority of our employees, it would be inappropriate to
157
either recognize it or bargain with it about the matter
referred to in the letter. We believe that a secret ballot
election conducted by the National Labor Relations
Board is the most appropriate and fairest method of
determining our employees' true desires. We desire
such an election, not only to permit our employees to
express their wishes freely, but also to obtain the
benefits of the Act for ourselves and our employees.
Recognition of the Association in the absence of a
secret National Labor Relations Board election would
not confer these benefits, or in my view, adequately
protect the employees' free expression of their repre-
sentative desires.
Very truly yours,
/s/ K. D. Ikezoe
When Ikezoe finished reading the statement, he said, on
the advice of his attorney, he would not elaborate on the
statement or make any comments, and left. According to
Aoyagi, Kadani said:
For a long time we are suggesting and try to help you to
improve Nichi Bei Times Company, and now you agree
to meet us today. And you admit majority, but all of a
sudden at this moment, you start to say you never
admit us as a bargaining unit, representing Nichi Bei
Times employees .... We are ready to show any
proof of our majority to you, but you never ask for it
and we are quite willing to go into election if it's
necessary, conducted by NLRB.
Ikezoe replied, on advice of his attorney, that he could not
make any commitment. Ikezoe testified that someone, he
thinks Kadani, said "you are stalling again." He does not
remember Kadani or any employee saying they would be
willing to have an election, and he denies that anything was
said about the Association's representing employees.
B. Conclusions
1. The no-solicitation rule
Item 2 of the rules and regulations announced by
Respondent on September 17 states:
2. No meetings of employees for purposes of organiz-
ing or forming or propagating the contentions of any
employees' association will be permitted on the
premises of the Nichi Bei Times, or during working
hours ....
Even assuming that the phrase "during working hours"
qualifies what appears to be an outright prohibition of
union activities on Respondent's premises, the above rule
unduly restricts the rights of employees under Section 7 of
the Act since it appears to prohibit activity other than
solicitation, it is directed only toward union activity, and
the prohibition is not limited to actual working time.
Florida Steel Corporation, 215 NLRB No. 23 (1974);
Groendyke Transport, Inc., 211 NLRB 921 (1974); Pepsi-
Cola Bottling Co. of Los Angeles, 211 NLRB 870 (1974). It
21 Two of the 13 signatures were crossed out on the later documents.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is immaterial whether the rule was ever enforced. It was
never revoked so its coercive effect on employees remains.
Cf. Phillips Industrial Components, Inc., 216 NLRB No. 106
(1975).
Accordingly, I find that Respondent violated Section
8(a)(1)-,of the Act as alleged in paragraph IX of the
complaint.
2. The alleged refusal to bargain
General Counsel contends that since July 24 the
Association has represented a majority of Respondent's
employees in a unit defined in the complaint as:
All full-time and regular part-time mechanical depart-
ment employees employed by Respondent at its Bush
Street, San Francisco, California facility; excluding all
other employees, office clerical employees, mailroom
employees, editors, guards and supervisors as defined
in the Act.
General Counsel further contends that on or about July 24
Respondent recognized the Association as the exclusive
bargaining representative for the employees in the afore-
said unit; and thereafter met and bargained collectively
concerning wages, hours of employment, and other terms
and conditions of employment. General Counsel's basic
theory of an 8(a)(5) violation is that Respondent's
bargaining obligation arose from such voluntary recogni-
tion and that thereafter Respondent refused to bargain in
violation of the Act by its August 2 refusal to furnish to the
Association requested information as to the wages of unit
employees, and its unilateral October 5 cutback in
publication schedule. Finally General Counsel contends
that by its October 24 letter Respondent unlawfully
withdrew its recognition of the Association as the statutory
representative of its employees in the unit set forth above.
Respondent's position is that the only appropriate unit is
one including all employees of Respondent, excluding all
managers , supervisors, and guards as defined by the Act.
Basically, Respondent contends, and it is essentially
undisputed, that all of its employees do some mechanical
work. However, the record is clear that the percentage of
time spent in such mechanical work is much less than that
spent doing clerical and editorial work.22
In the newspaper industry the Board usually finds
appropriate separate units of the various crafts. American-
Republican, Incorporated, 171 NLRB 43 (1968); Garden
Island Publishing Co., Ltd., 154 NLRB 697 (1965).
However, the Board has also found appropriate multide-
partment units comprising all mechanical employees in a
single unit where there is no objection either by the
employer or another union claiming to represent any
mechanical craft on a separate basis. Garden Island
Publishing Co., Ltd., supra. As to nonmechanical employ-
ees, the Board has held that the optimum unit is one
comprising all nonmechanical employees. The Salt Lake
Tribune Publishing Company and Telegram Publishing
Company, Employer, 92 NLRB 1411 (1951). However,
22 The exception is Kenichi Hmo, who since February 1975 has been
doing more mechanical work.
23 It may be that Hino's interest is more closely aligned with the
where the employer is organized on distinct departmental
lines the Board has found appropriate separate departmen-
tal units of nonmechanical employees. The Peoria Journal
Star, Inc., 117 NLRB 708 (1957).
Here Respondent's operation is not organized along
distinct departmental lines and all employees except
editorial employees are under the direct supervision of
Umezu. Since the clerical employees and the editorial
employees spend by far the majority of their time doing
nonmechanical work, I fmd that the extent to which they
perform mechanical work is insufficient to make inappro-
priate their exclusion from the mechanical unit. According
ly, I reject Respondent's contention that the only appropri-
ate unit is one comprising all its employees and fmd that a
unit of all mechanical employees is appropriate. The
Respondent has raised no objections to the joinder of the
mechanical departments.
The remaining unit issue is which employees comprise
the mechanical employees. As indicated above, I find that
the clerical'employees and the editorial employees should
be excluded from the unit.23 The parties are in agreement
as to the inclusion of all other employees except the
mailroom employees. At issue is whether mailroom
employees have a sufficient community of interest with the
mechanical employees where the unit sought is one
crossing craft lines to encompass all mechanical employ-
ees, some of whom are not truly craftsmen. As indicated
above, Respondent's operation is not organized along
distinct departmental lines, the mailroom employees are
under the same supervision as those employees admittedly
in the unit and they are all regular part-time employees
who have the same benefits as other part-time employees.
In fact, the term "mailroom employee" is a misnomer since
there is no physically separate mailroom. Rather, these
employees work in an area contiguous to, and unseparated
from, the press area, and they use the addressograph
machine used by employees admittedly in the unit. In these
circumstances a separate unit of mailroom employees
would be inappropriate. The Republican Company, 169
NLRB 1146 (1968).
Thus the question is whether their community of interest
is more closely aligned with the mechanical employees or
with the nonmechanical employees. The Board has placed
mailroom employees both in mechanical units and in
nonmechanical units. I have found no express rationale for
the distinction. However, it appears that where mailroom
employees have been included in nonmechanical units, the
unit has included circulation departments with whom the
mailroom department most clearly has the greater commu-
nity of interest. Lowell Sun Publishing Company, 132 NLRB
1168 (1961). Here, there is no circulation department. I
find that the interest of the mailroom employees is more
closely aligned to the employees admittedly in the unit
than to clerical and editorial employees. Accordingly, I
find that the appropriate unit is:
All full-time and regular part-time mechanical depart-
ment employees employed by Respondent at its Bush
mechanical employees than with the clerical employees, however, it is
unnecessary to reach that issue.
NICHI BEI TIMES COMPANY
Street, San Francisco, California facility; excluding all
other employees, office clerical employees, editors,
guards and supervisors as defined in the Act.
However, I further find a substantial variance between
the unit the Association claimed to represent in its
demands and either the unit alleged appropriate in the
complaint or the unit found appropriate herein. I perceive
no valid interpretation of the Association's oral and written
demands other than that it was seeking to bargain on
behalf of all employees. Thus the July 24 demand referred
to "we workers ," "a $1.00 raise for everybody, " and
demands an explanation of why Respondent failed to hold
a previously requested "'meeting of all workers and
management" in order to' discuss inter alia better working
conditions. The August 23 demands include "$1.00 per
hour raise for all workers" and "a clear explanation of the
wage rate for all NBT employees, including the manage-
ment. Furthermore, the signatures on the signed demands
included an editorial employee and the Association
representatives clearly indicated in meetings that their
demands were intended to encompass office employees.
Thus they protested the failure to include office employees
in the bonus plan. I find this to be a substantial variance.
Boch Dodge, Inc. Boch Rambler, Inc., and National Discount
Corp., all d/b/a Boch Motors, 177 NLRB.670 (1969). Not
only does it amount to a 50 per cent increase in the size of
the unit but the Association never had a majority in such a
broad unit, a fact readily apparent to Respondent from the
signed documents.
I further reject General Counsel's contention that
Respondent accorded voluntary recognition to the Associ-
ation as the exclusive representative of its employees.
Rather, I conclude that prior, to October 11, the Associa-
tion never demanded such recognition nor did Respondent
accord it. In so concluding, I am not suggesting that any
special words are needed for a valid demand. I do think it
is necessary , however, that the language used must be
reasonably sufficient to apprise the employer that recogni-
tion is being sought as the exclusive bargaining representa-
tive of employees in some unit identifiable by the
employer. Here, against the background of previous
employer-employee relations, I conclude that the Associa-
tion's demands were not sufficient to apprise Respondent
that it was seeking recognition as the exclusive representa-
tive of a group of employees. In fact, I am convinced that
the Association was not seeking such recognition prior to
October. And, even assuming it was, Respondent had no
way of knowing it and its response was not intended to
accord such recognition.
Thus, the July and August "demands" were couched
much the same as the "demands" made in August 1973
and on March 1, 1974. Respondent met with employees in
response to those earlier demands. A wage increase was
granted in August 1973 as a result . Aoyagi was then, as
now, the principal spokesman for the employees. The
August 1974 demands referred to the earlier demands. The
Association representatives insisted that all employees be
present at the meetings. I am of the opinion that this type
of background requires something more than an announce-
159
ment that the Association had been formed in order to
apprise Respondent that recognition as statutory represent-
ative was being sought and something more than meeting
with all employees to constitute according such recogni-
tion. Actually the Association's October 11 letter concedes
that Respondent had not accorded such recognition.
Based on the foregoing, I find that prior to October 11,
the Association never made a valid demand for recognition
as the exclusive bargaining representative of Respondent's
employees in an appropriate unit. I further find that
Respondent never accorded the Association voluntary
recognition as such in any unit. Accordingly, I find that
Respondent had no obligation to bargain with the
Association at any time prior to October 11. I shall
therefore recommend that subparagraphs VIII (a) and (b)
of the complaint be dismissed.
The October 11 letter is an unmistakable demand for
recognition. As set forth above, I - do not credit the
testimony that Ikezoe expressly recognized the Association
on that date. Since 'Respondent has engaged in no flagrant
unfair labor practice, its October 24 refusal to recognize
and bargain with the Association is not violative of Section
8(a)(5) of the Act. Linden Lumber Division, Summer &
Company v. N.L. R.B., 419 U.S. 301 (1974).
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. The Association is a labor organization within the
meaning of Section 2(5) of the Act.
3. By implementing and maintaining a rule which
prohibits employees from, engaging in union activities on
Respondent's premises or during working hours , Respon-
dent has interfered with, restrained, and coerced its
employees in the exercise of their rights under Section 7 of
the Act and has thereby engaged in unfair labor practices
within the meaning of Sections 8(a)(1) and 2 (6) and (7) of
the Act.
4. Respondent has not violated Section 8 (a)(1) and (5)
of the Act as alleged in paragraph VIII of the complaint
herein.
TIC REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(1)
of the Act, I shall recommend that the Respondent be
ordered to cease and desist therefrom and from infringing
in any like or related manner upon its employees' Section 7
rights, and that it take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law and the entire record in this proceeding,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended , I hereby recommend the
following:
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER24
Respondent, Nichi Bei Times Company, San Francisco,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Maintaining a rule which prohibits employees, from
engaging in union activities on Respondent's premises or
during working hours.
(b) In any like or related manner Interfering with,
restraining , or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its facilities in San Francisco, California,
copies of the attached notice marked "Appendix." 25
Copies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be
dismissed as to those allegations contained in paragraph
VIII thereof.
24 In the event no exceptions are filed as provided by Sec. 102 46 of the
Board's Rules and Regulations, the findings, conclusions, and recommend-
ed 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.
25 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall 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
After a hearing at which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor, Relations
Act, and has ordered us to post this notice and we intend
to carry out the order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with,
restrains or coerces you with respect to these rights.
More specifically,
WE WILL NOT maintain a rule which prohibits
employees from engaging in union activities on our
premises, or during working hours.
You and all our employees are free to become members
of any labor organization, or to refrain from doing so.
NICHI Bin Tunts COMPANY