The Baughman Co.

National Labor Relations Board - Board Decisions

Apr 22, 1980

248 N.L.R.B. 1346 (N.L.R.B. 1980)

1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Baughman Company and Graphic Arts Interna-
tional Union, Local 531. Case 5-CA-10483
April 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On December 19, 1979, Administrative Law
Judge Bernard Ries issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings,' and conclu-
sions 2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, The Baughman
Company, Richmond, Virginia, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy notm to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Respondent excepts, inter alia, to the Administrative Law Judge's
finding that it unlawfully and unilaterally changed its employees' work-
week on grounds that no such violation was specifically alleged in the
complaint. However, this matter is reasonably related to the complaint's
other allegations and was fully litigated, and we therefore find that the
Administrative Law Judge properly made findings as to this issue. Vic
Tanny International, Inc., 232 NLRB 353 (1977)
DECISION
BERNARD RIES, Administrative Law Judge: This
matter was heard in Richmond, Virginia, on June 4,
1979. The complaint alleges that in December 1978 Re-
spondent violated Section 8(a)(5) of the National Labor
Relations Act, as amended, by unilaterally altering sever-
al terms and conditions of employment and by more gen-
erally failing and refusing to bargain with the Charging
Party. The complaint further alleges that on December
1, 1978, Respondent violated the Act by laying off Deb-
248 NLRB No. 186
orahl Carter "out of the order of seniority because of
her position as shop steward and because of her member-
ship in and activities on behalf of the Union."
Briefs were filed by General Counsel and Respondent.
On the basis of the entire record, the briefs, and my rec-
ollection of the demeanor of the witnesses, I make the
following findings, conclusions, and recommendations.
Respondent is engaged in the commercial printing
business in Richmond, Virginia.? In 1973, after an elec-
tion, the Union was certified as the bargaining represen-
tative of a unit composed of Respondent's bindery em-
ployees, warehouse employees, maintenance employees,
and truckdrivers.3 Collective-bargaining agreements
were thereafter executed by Respondent and the Union,
the most recent expiring on August 31, 1978.
In that month Union President Goff engaged in negoti-
ations with then President Thompson of Respondent, and
some progress was made. Thompson said that he wanted
Goff to discuss a certain proposed change with Sachs, a
company consultant. Apparently, no further negotiations
immediately followed. On October 13 an employee filed
a decertification petition. Also on October 13 Goff met
with Sachs and one Roake, a management representative,
and some contract language was discussed; Sachs noted,
however, that no contract could be executed until the
decertification petition had been disposed of. On Novem-
ber 8 Goff met with company representatives, at which
time he was told that Thompson had been replaced as
president by Ronald Jackson, that the Respondent was in
serious financial straits, and that there would have to be
some "belt-tightening."
Processing of the decertification petition followed, but
on December 5 the Regional Director issued an order
approving withdrawal of the petition by the Petitioner;
Respondent was notified of the approved withdrawal by
letter of December 8.
During this period, there had been various changes in
Respondent's operations. Ronald Jackson, as noted,
became president of Respondent in November. In De-
cember Respondent revised its employee handbook, the
earlier version of which had just been published in Sep-
tember 1978. The new handbook changed the "normal
workday" for all employees from 7-1/2 hours to 8 hours
and the "normal workweek" from 37-1/2 hours to 40
hours; changed the overtime entitlement so that it would
begin at the higher base hours; eliminated a provision for
awarding vacation preference by seniority; and eliminat-
ed a definition of the term "seniority." 4 The record is
unclear as to when these changes became operative. The
new handbook is simply dated "12/78"; President Jack-
son seemed to think that the amendments did not take
effect until January 1979, but he was less than certain.
Respondent failed to notify or consult with the Union
about these changes in working conditions. That omis-
sion plainly violated Section 8(a)(5). Absent any reason-
The complaint spells Carter's name this way, although the transcript
has it as "Debora."
2 The pleadings establish that it is appropriate for the Board to assert
jurisdiction in this case.
:' The parties agree that the Union is a "labor organization" as defined
by the statute.
4 Whether there was a change in the computation of pay for Saturday
and Sunday work, as alleged, is discussedinfra.
THE BAUGHMAN COMPANY 1347
able doubt based on objective considerations that the
Union continued to represent a majority of the unit em-
ployees after the contract expired, Respondent was duty
bound to continue recognizing and dealing with the
Union as the bargaining agent of those employees. Auto-
mated Business Systems, etc., 205 NLRB 532, 534 (1973). 5
Even if the changes were formalized during the penden-
cy of the decertification petition, which seems unlikely.
Respondent still owed an obligation to the incumbent
Union to meet with it and discuss these significant modi-
fications in the terms of employment. 6
I find that, by taking unilateral action with regard to
existing terms and conditions of employment during De-
cember 1978, Respondent violated Section 8(a)(5). 7
There is, however, one exception to the foregoing
conclusion. The complaint alleges that in addition to the
other changes Respondent, since December 1, acted uni-
laterally in "eliminating seniority as the basis for effect-
ing layoffs of its employees." The contract which ex-
pired in August contained the following provision:
In the case of promotions, demotions, layoffs, or
recalls, the basis for selction shall be: (a) seniority,
(b) job knowledge and performance, (c) training, (d)
ability, (e) skill, (f) efficiency, (g) aptitude, (h) phys-
ical fitness, and (i) attendance record.
Where, as between employees under consider-
ation, factors (b) through (i) are relatively equal, in
the opinion of the Company, seniority shall govern,
provided the employee to be promoted or recalled,
or to be preferred in the case of layoff, must be
' Although Respondent's answer to the complaint refers to Respon-
dent's "[h]aving a good faith doubt that the Union represents a majority
of the unit," no evidence to support that defense was adduced
6 Telautograph Corporation, 199 NLRB 892 (1972), absolves an employ-
er from bargaining for a new contract while such a petition is pending,
but the Board clearly did not intend to hold in that case that an employer
would be permitted to take advantage of such a period for the purpose of
instituting unilateral changes
7 The complaint does not specifically allege that the change in the
workweek, from 37-1/2 hours to 40 hours, with its concomitant effect on
weekly overtime pay, was violative of the Act; in this regard, the com-
plaint refers only to the increase in the length of the workday. Nor does
General Counsel's brief ask for compensation for those employees, if any,
who worked more than 37-1/2 hours and less than 40 hours in a week
(other than on Saturdays) and received no overtime pay for those hours
It is clear from the record, however, that the change to a 40-hour week
was not discussed with the Union. I shall therefore recommend a finding
of violation as to this change and a corresponding remedy.
The complaint alleges that Respondent, inter alia, unilaterally changed
"the manner in which overtime payment is computed for overtime
worked on Saturdays and Sundays." On brief, counsel for General Coun-
sel concedes that the record does not support such a finding as to Sun-
days, but maintains that he has established such a showing as to Satur-
days. The record is perplexing in this respect Prior practice, as stated in
the September handbook, had been to pay the unionized employees at
time and a half "for all hours worked on Saturday" The December
handbook made no material change in this provision. Yet, at the hearing,
when General Counsel showed President Jackson the December hand-
book and asked if it was not "true that in December of 1978, the basis for
overtime payment to employees on Saturday was changed so as to pro-
hibit overtime payment for Saturday work unless the employee had
worked forty hours during the regular week," Jackson answered, "Cor-
rect." In view of Jackson's testimony. I suppose that I should conclude
that he may have been referring to a practice not reflected in the hand-
book; I therefore find an unlawful change as to payment for Saturday
work
fully qualified to do the job with maximum efficien-
cy.
The handbook published by Respondent in September,
after expiration of the contract, contained no reference
to any criteria for layoffs, although it did have a para-
graph defining the term seniority. 8 The revised hand-
book published by Respondent in December also failed
to refer to layoff standards, and also omitted the defini-
tion of seniority.
Although there is less than blinding clarity in the
record on this point, it appears that around December
there were several group layoffs, reducing the total work
complement from about 140 to 105.9 The bulk of the tes-
timony about the criteria employed in making these re-
ductions in force related to a layoff of bindery employees
on December I (which gave rise to the allegation that
employee Deborah Carter was wrongfully laid off, as
discussed infra).
I read the expired contract provision, which General
Counsel correctly contends was in effect until properly
rescinded, as a slight restraint on Respondent's otherwise
unfettered discretion in taking personnel actions, requir-
ing Respondent to give primacy to seniority only where
the merit factors between two or more employees were
in relative equipoise. I see nothing in the testimony
which indicates a deviation from that standard, at least
insofar as General Counsel submits that "during the De-
cember layoff seniority was ignored."
It is true that President Jackson, while being examined
by counsel for Charging Party as an adverse witness, an-
swered, "No, it was not" to the question, "When you
laid off these people in December, I assume seniority
was not considered at all." He immediately amended his
answer, however, by indicating that in fact he had dele-
gated the responsibility for making choices to subordi-
nate managers, and was not really capable of answering
the question.
John Napotnik, the bindery superintendent who was in
charge of making the layoffs in that department in De-
cember, testified that he understood that, in following
the instruction to reduce his shifts to a "skeleton crew,"
he was to go by the "company procedures. We always
go by seniority as much as you can." In drafting and re-
drafting the layoff list, Napotnik said, "[I]t finally got to
the point where I could not go by seniority alone."
Nonetheless, as exhibits in evidence show, the December
I bindery department layoff, with only a few exceptions,
was made in accordance with seniority.
On this record it is difficult to agree with General
Counsel that in the December layoff "seniority was ig-
nored." The contract provision only loosely binds Re-
spondent's hands with the cords of seniority; it was a
factor which governed only when the other factors were
"relatively equal." To the extent that, in the past, Re-
spondent had always "go[ne] by seniority as much as
s "Seniority shall be defined as the length of time an employee has
been on the Company's payroll without interruption. An employee who
terminates employment with the Company and is later rehired shall count
his or her seniority from the latest hire date "
9 It would also appear that some of these cuts occurred in employee
categories outside the bargaining unit, which excluded such classifications
as printing employees, preparation emplocees, and others
THE BAUGHMAN COMAN '
.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you can," it had displayed deference to a traditional
union goal above and beyond that required by the con-
tract. It obviously continued to pay that deference in
December 1978 with minor exceptions. On this state of
the evidence I am not persuaded that, as charged, in De-
cember 1978 Respondent "eliminat[ed] seniority as the
basis for effecting layoffs of its employees."' 0
I further find that, as orally amended at the hearing,
the complaint accurately alleges that, since in or about
December 1978, Respondent has failed and refused to
meet and bargain in good faith with the Union. With the
withdrawal of the decertification petition on December
5, Respondent's obligation to continue the suspended
contractual bargaining revived. The record shows, how-
ever, that Respondent failed to abide by that statutory
duty. Union President Goff credibly testified that he
called Respondent's president, Jackson, "several times"
after December 5 to set a date for resumption of negotia-
tions, but Jackson never returned his calls. On January 2,
1979, Goff wrote to Jackson by registered letter, noting
his "repeated attempts" to make contact, and asking that
Jackson get in touch with him. There was no response.
Jackson testified that, after assuming the position of
president, he was constantly traveling and otherwise im-
mersed in "trying to save the business." He believed that
he did make one unsuccessful attempt to contact Goff.
That one attempt was not enough. While it seems clear
that Respondent's business was facing difficulties, the
Act demands that attention be paid to the statutory
rights of employees who have selected a union to repre-
sent them. There can be no question that in the months
between December 5, 1978, and the hearing day, June 4,
1979, Jackson, or a representative, could have carved out
sufficient time to meet and bargain with the Union, busi-
ness exigencies notwithstanding. Respondent's literal vio-
lation of the 8(d) mandate to "meet at reasonable times
and confer in good faith" was unlawful.
Finally, the complaint alleges that Respondent violated
the Act in that it "discriminated against Deborah M.
Carter by permanently laying her off out of the order of
seniority because of her position as shop steward and be-
cause of her membership in and activities on behalf of
the Union."
Carter was employed by Respondent in September
1972,11 and was laid off on December 1, 1978, along
with a group of other bindery employees. The General
Counsel elicited testimony for the purpose of indicating
that the selection of Carter was predicated on her perfor-
mance of duties as shop steward. I do not believe that
there is sufficient support for the proposed inference to
constitute a "preponderance of the testimony taken" as
prescribed by Section 10(c).
Carter became shop steward in January 1978, but by
her own testimony was no firebrand. She might have
taken a "total of about four or five complaints" to man-
iO While it might be argued that the silence of the December revised
handbook on the subject of seniority in personnel actions legally worked
such a change, I do not think that is true anymore than the September
handbook changed the layoff standard by virtue of failing to incorporate
the former contract language. Mere silence in a handbook does not oper-
ate to establish that, in fact, a change in conditions occurred.
II While she testified that she began in 1971, two seniority lists in evi-
dence show otherwise.
agement, one of these to President Thompson and the
others to Supervisors Napotnik and Shelton. Thompson
told Carter that he would "try to work out" the over-
time problem brought to him, and Shelton "tried to" re-
solve the problems mentioned to him. These grievances
occurred during the "summer of 1978," and thereafter
Carter presented no complaints to management.
In or "around the middle of July," while discussing
with fellow employee Lindsey, in the restroom, the de-
certification petition then being circulated, Carter said,
"[B]efore anyone goes and carries the Union to court,
they ought to ask themselves what they are getting
into." Lindsey apparently complained about this conver-
sation to management, because Carter was subsequently
called into the office of the night superintendent, Baber,
who told her that she could not "be threatening people
about joining the Union and that I was walking on dan-
gerous ground." 2
Employee Margie Smith, still in Respondent's employ
at the time of the hearing, testified that she explained to
the bindery superintendent, Napotnik, in January 1979
that she was looking for a new job because of her con-
cern that there might be another layoff. When he at-
tempted to allay her fears, mentioning her length of ser-
vice, Smith said "that did not mean anything, that Deb-
orah Carter had been there a long time." Napotnik re-
plied that "there was a difference because I wasn't
always complaining or moping around or something."
While Smith could not recall "exactly what he said," she
remembered that one part of the statement was that
Carter "was always complaining"; the other characteris-
tic referred to by Napotnik was that Carter was "like
slouching, sloppy, I guess."
The record indicates that Carter was not considered a
particularly good worker. She testified on cross-examina-
tion that Supervisor Shelton told her, perhaps "a couple
of times," that she would "have to keep up with the ma-
chines"; one such occasion she "believe[d] . . . was in
the winter," and another was around the "middle of
August." Respondent produced a personnel form dated
September 1, 1978, signed by Shelton, which stated,
"Deborah admitted she could not keep up with the ma-
chine she was catching. Failure to maintain production
while others catching did so constitutes a written warn-
ing for better work." Carter testified that she had never
previously been shown this memorandum. At the hearing
this document was referred to as bearing a date of No-
vember 1, but it obviously is dated September 1. Al-
though the testimony is confused on this subject of criti-
cism of Carter for poor work, at the end of her cross-
examination Carter conceded that she remembered being
"reprimanded about productivity" on three occasions in
1978: "some time prior to August, one in August and one
in November."
Thus, on Carter's own testimony it appears that her
work performance was sufficiently inadequate as to call
for three reprimands within a relatively short period
prior to her layoff in December. Napotnik testified that
he had been aware of this unsatisfactory performance as
12 Baber did not testify. The evidence leaves no doubt that he is a stat-
utory supervisor.
THE BAUGHMAN COMPANY 1349
he drew up the list of those to be laid off, a process he
undertook in November.
Napotnik said that he was told by his father, Executive
Vice President Leo Napotnik, to reduce the bindery de-
partment to a "skeleton crew" in order to help deal with
the financial crisis at hand. Napotnik prepared a list of
employees to lay off, at first going by seniority alone
(many of the bindery employees had been hired in 1978).
Higher management rejected his first essay at the task,
saying that a larger cut needed to be made. Napotnik
noted at the hearing the constraints involved in deciding
whom to keep. There are two shifts with categories of
"folders, knivers, and stitchers," as well, as operators and
employees who perform "hand work" which others
cannot do. In the process of trying to pare the two shifts
down to skeleton crews, which took about a week, he
considered all of the contract criteria. In total he may
have submitted four or five drafts before his superiors
were satisfied that he had trimmed the work force suffi-
cently.
Napotnik thought that Carter had survived the first
cut, but, as pressure was applied to him to continue trim-
ming, he decided that she must go despite her seniority.
According to Napotnik, she did not fare nearly as well
on the substantive factors as those who were finally kept,
and, since he was, reluctantly, going to have to operate
with a skeleton crew, he wanted to retain only the best.
Napotnik remembered having spoken to Carter "[a]t
least four or five times" about her efficiency (apparently
in a period between August 1976-January 1977 when he
worked with her at night), and he recalled that Shelton
had made "numerous comments" about her. He remem-
bered only one occasion on which Carter spoke to him
in her capacity as a union steward. Napotnik was also
aware of the written warning given to Carter by Shelton
in September.
The evidence as to the number and identity of the em-
ployees affected by the December layoff is not entirely
clear. Napotnik testified that he had "about fifty people"
in the bindery department and, as a result of the Decem-
ber layoff, "cut back to about thirty-five or so, give or
take one or two." 3
At the conclusion of the hearing, the parties stipulated
to a handwritten listing of "[b]indery employees laid off
Ist week of December 1978" and "[blindery employees
retained as of Ist week 12/78." The list, which, as ex-
plained by counsel for General Counsel, pertains only to
the less skilled bindery helpers as opposed to other clas-
sifications in the unit, shows 10 employees in the laid-off
category and 18 in the retained category. The difference
between the 15 or so employees who Napotnik said were
laid off and the 10 shown on the stipulation seems to be
accounted for by the fact that a week prior to the mass
December 1 layoff there was a preliminary layoff of
other employees. 14
'a Napolnik had told other management officials that he needed to
retain "about forty and maybe more" e was told that that figure was
too high, that he should get down to "about thirty-two," and he there-
after did more cutting.
" While this was not focused on at the hearing. Napotnik testified
that, before he began drafting his lists for the December I layoff, "I had
a group of people who we had hired in the summer and I let them go
first " Work sheets in evidence, prepared by him in deciding upon the
The evidence as a whole indicates that the stipulation
is in error in at least one respect. The stipulation reflects
rather dramatically that Carter was the only one of the
10 laid-off employees who had been hired earlier than
1978. One of the other nine, Sharon Stevens, is shown on
the stipulation as having a hire date of "6/21/78." But
Stevens appeared as a witness and, in the course of her
testimony, twice said that her date of hire was June 21,
1977.15
The significant feature of this error is that it indicates
that Carter was not the only more senior employee laid
off while junior employees were retained. The stipulation
shows that, of the 18 retained employees, 2 of them, P.
Clements and M. White, were hired as recently as 1978.
Napotnik's work sheets note those two employees as
having special classifications of "Folder" and "General
Bindery Workers," respectively, as opposed to the more
common "Bindery Help" applied to the other nonopera-
tor employees. Furthermore, according to the stipulation,
only 2 other of the 18 retained employees besides Cle-
ments and White had less seniority than Carter, and both
of these had a relatively substantial history of employ-
ment (S. Decker, hired June 23, 1976, and W. Hender-
son, hired October 12, 1976).
The totality of the circumstances does not preponder-
antly establish that Carter was selected for layoff because
of her performance as a steward. Those "four or five"
occasions between January and December 1978 in which
she brought grievances to management do not seem to
have been a special source of irritation. Furthermore,
since the last such instance had been in the "summer of
1978," there is no reason to believe that, when Napotnik
was making up the layoff list in the final week of No-
vember, those grievances still rankled or that, sensibly,
he would have regarded Carter, after perhaps 3 or 4
months of abstention from prosecuting grievances, as an
implacable militant who must be dealt with.
The testimony of Margie Smith that Napotnik had dis-
tinguished her case from that of Carter on the ground
that Carter was "always complaining or moping around
or something" is unspecific, although Smith made a good
personal impression. Smith was quite unsure of what Na-
potnik really said. Her first version indicates uncertainty:
"always complaining or, moping around or something";
then, "always complaining and moping around on then
job"; and then, "always complaining or moping around
or something."Finally she was clear that at least "always
complaining" was said, but she was not sure what else:
"[R]eally you could say slouching, sloppy, I guess."
It is not easy to believe that Napotnik spoke of Carter
"always complaining," since, by her own account, she
had not complained, in any Section 7 sense, for several
months. Further, the real gist of the comments made to
Smith by Napotnik about Carter were, I think, revealed
December I layoff, note the names of two employees from the first shift
and four from the second shift who had been "layed [sic] off last week."
lb Typed bindery seniority lists of June 8 and September 5, 1978, list-
ing current employees by chronological seniority, show Stevens as
having a hire dat of "6-20-76" Whichever it was, 1976 or 1977, 1 have
little doubt that the 1978 date on the stipulation does not represent Ste-
vens' correct entry into employment If Stevens had not been hired until
June 21. 1978, she would not even have appeared on the June 8, 1978,
seniority list
T H E B A U G H M A N C O M PA N Y 3 ~ ~ ~
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in three questions posed by counsel for Respondent to
Smith, all of which she answered in the affirmative:
"Mrs. Smith, didn't he tell you that you were a much
better worker than Deborah was?" "Didn't he say that
your production was much greater than Deborah's?"
"And that he was going to keep you because of that?"
Although Napotnik was not specifically questioned
about this conversation with Smith, his general explana-
tion of why Carter was selected, and his denial that her
status as a union steward played a role in that selection,
adequately responded to any inference which might be
drawn from Smith's testimony. I was impressed with Na-
potnik as a very honest and reliable witness, and I am in-
clined to believe his story that his decision to lay off
Carter, when pushed by his superiors to cut his staff to
the bone, was made on the basis of his belief that she wa
a marginal employee whose productivity was less satis-
factory and promising than the employees who were re-
tained. 6
It seems fairly apparent that, despite her 6 years of em-
ployment with Respondent, Carter had not gained any
skills of special value to the Company. She testified that
she was earning only $3.30 per hour at the time of her
layoff." Such a wage level suggests that effort, not skill,
would be a principal factor in evaluating the worth of an
employee, and that, in consequence, time in service
would not be crucially important to such an employer,
Carter, as she conceded, had been reprimanded three
times in recent months for work derelictions, and she did
not testify that the reprimands were ill founded. She was
not, as discussed above, the only relatively senior em-
ployee who was laid off, and the stipulation shows that
only 4 of the 18 retained employees were junior to her in
time worked.' 8
Accordingly, for the reasons above discussed, I do not
believe that General Counsel has made out a case here,
and I recommend that the allegation as to Carter be dis-
missed.
CONCLUSIONS OF LAW
1. Respondent, The Baughman Company, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Graphic Arts International Union, Local 531, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By unilaterally increasing the length of the workday
and the workweek and changing the computation of
overtime pay on the basis of the lengthened workday
and weekweek, unilaterally changing the manner in
which pay is computed for Saturday work, unilaterally
eliminating seniority as a basis for scheduling vacations
" I have considered, but do not feel constrained to attach much
weight to, Carter's encounter with Superintendent Baber in July
17 This figure is, I note, inconsistent with the expired bargaining agree-
ment, which provided a top rate of $3.46 after 21 months
i' My conclusion that the stipulated hire date for Stevens is erroneous
is, I am aware, an unusual departure from customary practice, but the
evidence makes it difficult to avoid that conclusionl I have given sonme
thought to reopening the hearing in order to clarify this point After con-
sideration ,of all the edielice, however, I have decided that, even if I
were to accept the stipulation on this matter, I would still believe that the
evidence does not support finding a violation.
in December 1978 and by failing and refusing to bargain
with the Union as collective-bargaining representative of
certain of its employees, Respondent violated Section
8(a)(5) and (1) of the Act.
4. In no other respect alleged in the complaint has Re-
spondent violated the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that Respondent be required to re-
scind the unilateral changes found herein, and to make
affected employees whole for any losses sustained as a
result of the changes. Atlantic International Corporation,
et al., 246 NLRB No. 31 (1979). Reimbursement shall in-
clude interest as provided in Florida Steel Corporation,
231 NLRB 651 (1977). 1 shall further recommend that
Respondent be ordered to meet and bargain in good faith
with the Union. Finally, I shall recommend that custom-
ary notices be posted.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER 9
The Respondent, The Baughman Company, Rich-
mond, Virginia, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain with Graphic Arts Internation-
al Union, Local 531, by failing or refusing to meet with
the Union for the purpose of engaging in collective bar-
gaining or by unilaterally altering terms and conditions
of employment of the employees in the bargaining unit
set forth below for which the Union is the exclusive bar-
gaining representative:
All bindery employees, warehouse employees, main-
tenance employees, and truckdrivers, excluding
printing employees, preparation employees, office
clerical employees, technical and professional em-
ployees, salesmen, watchmen, and guards and super-
visors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action:
(a) Upon request, meet and bargain in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit de-
scribed above.
(b) Rescind the changes in the length of the normal
workday, the length of the normal workweek, the com-
putation of overtime, and the use of seniority in schedul-
ing vacations made in December 1978, and make the em-
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
il 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
THE BAUGHMAN COMPANY 1351
ployees whole for any loss of earnings, privileges, or
benefits suffered as a result of such unilateral action in
accordance with the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Richmond, Virginia, plant copies of the
attached notice marked "Appendix."2 0 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's repre-
sentative, 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. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
20 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE Wll.L NOT refuse to bargain with Graphic
Arts International Union, Local 531, by failing and
refusing to meet with said Union for the purpose of
collective bargaining or by unilaterally altering
terms and conditions of employment of the employ-
ees in the bargaining unit set forth below for which
the Union is the exclusive bargaining representative.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by the Na-
tional Labor Relations Act.
WE WILL recognize and, upon request, bargain in
good faith with Graphic Arts International Union,
Local 531, as the exclusive representative of our
employees in the following appropriate unit:
All bindery employees, warehouse employees,
maintenance employees, and truckdrivers, exclud-
ing printing employees, preparation employees,
office clerical employees, technical and profes-
sional employees, salesmen, watchmen, and
guards and supervisors as defined in the Act.
WE WILL rescind the unilateral changes made in
December 1978 regarding the length of the normal
workday and the normal workweek, the computa-
tion of overtime pay with respect thereto, the com-
putation of pay for Saturday work, and the use of
seniority in scheduling vacations, and WE WILL
make employees whole, with interest, for any losses
sustained as a result of such changes.
THE BAUGHMAN COMPANY
THE HAUGHMAN COMPANY 351