Williams Litho Service, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1982

260 N.L.R.B. 773 (N.L.R.B. 1982)

WIL.I.IAMS I.ITHO SFRVICE, INC
Williams Litho Service, Inc. and Graphic Arts Inter-
national Union, Local 505, AFL-CIO-CLC.
Cases 14-CA-13782 and 14-RC-9124
March 10, 1982
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MIMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On June 30, 1981, Administrative Law Judge
Robert G. Romano issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed cross-exceptions and a supporting brief,
and Respondent filed a reply brief to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(l) of the Act by, on
March 17, 1980,3 announcing an overly broad no-
solicitation and no-distribution rule. We find Re-
spondent's exceptions to this finding without
merit. 4 The Administrative Law Judge further
found that Respondent violated Section 8(a)(1) by,
on March 7, granting its employees increased bene-
fits and improved working conditions as a "calcu-
lated" action to interfere with the Union's embry-
onic organizational effort. For the reasons stated
below, we do not agree.
The operative facts regarding the alleged grant
of benefits are fully set forth in the Administrative
Law Judge's Decision. In summary, the record re-
Respondent has requested oral argument Ithls request is hereby
denied as the record, the exceptions. and the briefs adequalels present the
issues and the positions of the parties
2 Respondent has excepted to certain credibility findings made byh) the
Administralise LIas Judge. I is the Board's established policy not to
overrule an administrative law judge's resolutions s.ith respect Io credi-
bilily unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Drv' W8al Produtict.
Inc. 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find rno basis for reversing his findings
Unless otherw ise noted, all dates are 1980.
The Administrative Iaws Judge cited Ese.r International Inc. 211
NLRB 749 (1q76). as precedent for finding Respondent's no-solicitltion
and no-distribution rule violatire of the Act. We note that EL. s Interna-
tional was overruled In TRI' Bearing Di vision. 4 Dvision of' IRI 14 Inc
257 NLRB 442 (1981). to the extent inconsistent therewith Ho, e\ser, we
find that Respondent's rule is unlassful under either decisilon Member
Hunter agrees ith the finding of a .iolation but does so solele hecaulse
the rule at issue is unlawful under the standard established hb the Iroard
in Essex. iupra
260 NLRB No. 101
veals that the Union held an initial information
meeting for Respondent's employees on March 3.
Thereafter, on March 7, Williams, Respondent's
president and owner, held a meeting with all em-
ployees in the plant. The Administrative Law
Judge found, and we agree, that Williams' action in
calling and holding this meeting was both consist-
ent with his past practice of conducting periodic
employee meetings and justified by legitimate busi-
ness reasons independent of any union consider-
ations. During the course of the meeting, Williams
discussed with the employees several of their prob-
lems and concerns including, inter alia, an employ-
ee's discharge, Respondent's profit-sharing plan,
and Respondent's health insurance plan. A major
concern of employees expressed at this meeting
was the large amount of overtime work necessitat-
ed by the recent strike, and the manner in which
overtime payments were computed. Williams told
his employees that he did not want any of them to
leave the employ of his company and that, al-
though he favored retaining the current 40-hour
workweek with all overtime at time and a half, he
would nevertheless allow the employees to choose
whether they would prefer a 35-hour workweek
plan with overtime computed at time and a half for
the first 2 hours and double time thereafter and on
weekends.5 Williams further explained to the em-
ployees that the latter plan would include a reduc-
tion of the "premium pay" rate from $1 to $.65 per
hour.6 After discussion of the two options, the em-
ployees voted by secret ballot. There were 10
votes cast in favor of the 35-hour workweek plan
and 6 votes cast to retain the existing plan. Wil-
liams then announced that the new plan would be
effective the following Monday, March 10.
Based upon the foregoing facts, the Administra-
tive Law Judge found that, although the meeting
itself was lawful, the offer and grant of the modi-
fied workweek and overtime plan "was an action
reasonably calculated . . . to weaken or forestall, if
not eliminate any vestige of the embryonic organi-
zational effort" by the Union, and therefore violat-
ed Section 8(a)(1) of the Act. We disagree. Rather,
we find that the same legitimate business consider-
ations which justified holding the employee meet-
ing to discuss employees' concerns similarly justi-
The 35-hour iorkwAeek plan essentiall) ",as the same as that pro-
lided in the collectieb-hargaining agreement betsseen the Union and the
nlultlemplo~ er association representing unionized printing establishments
in the Sl .oruis s icinity W'e note in this regard that Respondent's prac-
Ilte sa, to p;l its emnplo)ees at least "unitiii scA1e" and to proside ap-
proximatels equcia l r lle frin ge hbenefit,
Ihi, prenminl pal is as applicable ti certain enlpleees classified is
"iturneymen ' Ihe extra 15 cents per hour unlder Respondent's Ihen-ex-
isting planl \vas deslgnled It comnpenllale these Joitrnes men for iorking a
4(1 hou r eek. ra her thtian the standard ulllon s worksCeek of 35 hours
773
DECISIIONS OF NATI()NAL IABOR RE.ATI()ONS B()AR)
fled Williams' offer and subsequent grant of the
modified workweek. While we are mindful that the
timing of Williams' offer of a different overtime
plan is strongly indicative of an illegal motive, both
the meeting itself and the events which transpired
at that meeting were fully consistent with Re-
spondent's past practice. Apart from the suspicious
timing, there is no evidence of any causal connec-
tion between the Union's nascent organizational
effort and the employee meeting or any of the sub-
jects discussed in that meeting. As was stated in
Walnut Creek Psychiatric Hospital d/b/a Walnut
Creek Hospital, 208 NLRB 656, 663 (1974): "The
Act does not require an employer pending an elec-
tion to refrain from making economically motivat-
ed decisions involving business matters or any
changes in working conditions necessary to the
continual and orderly operation of its business,
absent a promise of benefits conditioned upon re-
jection of the Union and/or any causal connection
between such changes and the rights accorded to
employees by the Act. Normal business decisions
must continue to be made and frequently are neces-
sary for the efficient operation of an enterprise,
even though it occurs during an organizational
campaign." In the absence of any evidence provid-
ing such a causal connection, we shall dismiss the
allegation of the complaint alleging that Respond-
ent's offer and implementation of a reduced work-
week violated Section 8(a)(1) of the Act.
To remedy Respondent's unlawful conduct, the
Administrative Law Judge recommended that a re-
medial bargaining order be issued. However, inas-
much as we have found that Respondent did not
violate Section 8(a)(l) by its March 7 actions, we
find that the extraordinary remedy of a remedial
bargaining order is not warranted,7 and that our
utilization of traditional remedies will suffice to
ensure a fair election and erase the present effects
of Respondent's past misconduct.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Williams Litho Service, Inc., Brentwood, Missouri,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promulgating an overly broad and unlawful
no-solicitation and no-distribution rule, and issuing
any contemporaneous threat of discharge for viola-
tion thereof, in violation of Section 8(a)(l) of the
Act.
X In view of our finding that a bargaining order is unwarranted, 'we
find it unnecessary to decide whether the Union had achieved majority
status at any time material herein.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their Section 7 rights.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Vacate its orally promulgated, unlawful no-
solicitation and no-distribution rule, and rescind its
threat to discharge employees for violation thereof.
(b) Post at its shop in Brentwood, Missouri,
copies of the attached notice marked "Appendix."8
Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly
signed by Respondent's representative, shall be
posted by Respondent 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
Ih IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found herein.
IT IS FURTHER ORDERED that the election in
Case 14-RC-9124 be, and it hereby is, set aside,
and that this case be remanded to the Regional Di-
rector for Region 14 for the purpose of conducting
a new election in the appropriate unit at such time
as he deems that circumstances permit the free
choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
M In the csent 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 Enfoircing an
Order of the National Labor Relations HBoard"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAIl LABOR RELATIONS BOARD
AN Agency of the United States Government
After a hearing at which all sides had an opportu-
nity 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 ordered us to post this notice.
The Act gives employees the following rights:
774
11 II MS I I I () SI RVICI, INC
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WEt WiL.L NOT promulgate an unlawfully
broad no-solicitation and no-distribution rule,
nor threaten discharge for violations of such
rule.
WtL WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights under the
Act.
WE WIL L vacate our present orally promul-
gated no-solicitation and no-distribution rule,
and rescind the threat of discharge for viola-
tion of same.
WII.LIAMS LITHO SERVICE, INC.
DECISION
STATI MENT OF: tHE CASE
ROBERI G. ROMANO, Administrative Law Judge: This
case was heard in St. Louis, Missouri, on June 25, 26,
and 27, 1980.' The original charge in Case 14-CA-13782
was filed on May 6, 1980, by Graphic Arts International
Union, Local 505, AFL-CIO-CLC (herein Local 505 or
the Union), against Williams Litho Service, Inc. (herein
Williams Litho or Respondent or the Employer). The
complaint thereon issued on June 3 (as amended June
24), and alleges that Respondent by its president and
owner, Roger Williams, on March 7 promised employees
a wage increase and more favorable working hours if
employees withdrew support from the Union, solicited
employee complaints and grievances, and promised its
employees increased benefits and improved terms and
conditions of employment; on March 10 implemented
changes in the hours worked per week, the manner in
which overtime was calculated, and other terms and con-
ditions of employment; on March 12 conditioned the
granting of promised benefits on employees' withdrawing
support from the Union; and on March 17 orally promul-
gated a rule prohibiting employees from discussing
unionization while on Respondent's premises, and from
distributing union literature on Respondent's premises
under threat of discharge. 2
tAll dates are in 19)0 unless otherwise stated
2 Certain charge allegations of Sec 8(a)(3) and (5) were withdrawn on
June 3; and certain additional comnpuint allegations of alleged 8(a)(l) in-
terrogations, threats to lay off employees and reduce employee benefits if
the employees selected the Union as their collectise-hargainirig repre-
sentatise. and conditional Iransfer of an employee to a more desirable
swork assignment on the emploee's rejection of the tlnion were all dis-
missed at the hearing oin the t mplo er's unopposed motion fior lack of
evidence presentiled in support oft ,ane
Petition in Case 14-RC-9124 was filed on March 7,
and a Stipulation for Certification Upon Consent Elec-
tion was entered into by the parties on March 24, and
approved by the Regional Director on March 26. An
election was conducted on April 30 among the employ-
ees of the Employer in an appropriate collective-bargain-
ing unit. :' There were five votes cast for the petitioning
Union, eight votes were cast against the Union, and
there were three challenged ballots. A majority of the
valid votes counted plus challenged ballots were not cast
for the Union. (The challenged ballots were not determi-
native of a majority.) Thereafter in due course timely ob-
jections to conduct affecting the results of the election
(some 20 in number) were filed by the Union on May 6.
On June 4, the Regional Director for Region 14 of the
National Labor Relations Board issued his "Report on
Objections and Recommendations and Order Directing
Hearing and Order Consolidating Cases and Notice of
Hearing" in Case 14-RC-9124 and Case 14-CA-13782.
Therein, of the 20 objections filed by the Union, the Re-
gional Director, upon investigation, concluded and rec-
ommended that Objections 4-8, 10-13, 15, and 17-20 be
overruled, but determined that Objections 1-3, 9, 14, and
16, and certain "other conduct not specifically alleged in
the objections" raised substantial and material questions
of fact which could best be resolved by a hearing, which
was thereupon recommended; the Union's said objections
were subsequently so ordered and processed by Order of
the Board dated June 24. 4 The complaint in Case 14-
CA-13782 also alleged, and the General Counsel has
continued to contend on brief, that the alleged unfair
labor practices set forth above are so serious and substan-
tial in character and effect as to warrant the entry of a
remedial order requiring Respondent as of March 5 to
recognize and bargain with the Union as the exclusive
bargaining representative of the employees in the above
appropriate unit. Respondent, by answer dated June 13
(and by oral answer amendment at the hearing on June
25), has denied the commission of any unfair labor prac-
tices; has denied that it has engaged in conduct warrant-
ing the election to be set aside; and, in any event, has
contended at the hearing and on brief that grounds clear-
ly have not been established herein sufficient to warrant
the bargaining order remedy here proposed and sought
by the General Counsel.
Upon the entire record, 5 including my observation of
the demeanor of the witnesses, and after due considera-
The parties agree and I find the following described collective-bar-
gaining unit is appropriate herein:
All production and maintenance employees employed by the Em-
ployer at its Brentvood, Missouri, facility, excluding office clerical
and professional employees. guards and supervisors as defined in the
Act
' lnamuch as "other conduct not specifically alleged in the objections"
clearl appears of record to be based upon complaint par
5
tj) now dis
mi ssed, It is readily apparent that said objection grounds are without
merit and they w ill not be additionally considered herein
' The General Ciounsel filed a motion to correct the transcript on
October 8, joined in hb Respondent based upon a stipulation for correc-
tion of the record executed hb the General Counsel and Respondent on
September 30 Although the Charging Party has not entered into the stip-
ulation for correc tion of the record, it has no objection thereto Ac ccrd-
C oninued
775
I)1.CISI()NS ()F NAII()ONAI. I.AH()R RELAIIONS H()ARD
tion of the briefs filed by the General Counsel and Re-
spondent on or about September 15, 1 make the follow-
ing:
FINI)IN(S 01O FACI
I. JlRISI)ICTION
The Employer, a Missouri corporation, is engaged in
the nonretail provision of color separation negatives for
the graphic arts trades, and at all material times has
maintained its principal office and place of business in
Brentwood, Missouri, which is the only facility involved
in this proceeding. The complaint alleges and Respond-
ent by answer has admitted that during the year ending
April 30 Respondent in the course and conduct of its
business operations has caused to be transported and de-
livered to its Brentwood, Missouri, facility film, chemi-
cals and/or other goods and materials valued in excess of
$50,000, of which goods and materials valued in excess
of $50,000 were transported and delivered to its facility
in Brentwood, Missouri, directly from points located out-
side the State of Missouri. The complaint alleges, Re-
spondent admits, and I find that Respondent is now and
has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act; and that Local 505 is and has
been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
11. A I.ItE(I) UNIFAIR I.AHOR PRACTICES
A. Background
1. The Employer's facilities and admitted
management
The Employer's litho shop was founded in 1971, and it
was heretofore located in a two-story building with 3,000
square feet on each floor. Roger Lee Williams is presi-
dent and owner, Larry E. Ross is vice president, and Bill
Faust is production manager. All are uncontested super-
visors. The shop's first floor encompasses an office area
occupied by Faust and two secretaries, a partial proofing
area, and essentially two camera and scanner rooms. On
the second floor there is a film storage area, six stripping
tables (with lights), two contact rooms and other process
and proofing (two sinks, dot etching, chromalin transfer)
areas, and the offices of Williams and of Ross. The
record describes the facilities at one time as being
cramped due to business growth, with facilities enlarged
by 5,000 square feet by the time of election.
2. The nature of the Employer's business and
statement of remaining supervisory issues
Respondent is engaged in the nonretail provision of
color separation negatives for the graphic arts trade. The
ingly, the Joint motion of the General Counsel and Respondent is granted
in its entirety except that (a) Ihe stipulation calling for deletion of p 558.
I I. is granted only to the extent of deleting the words "not that kind of
company," with insertion of the word "cross-examination," so that the
line reads "That is cross-examinatlion; and (b) the desired correction of
p. 176. 1 8i is declined, but I. 16 thereon is corrected to read "He can be
the judge of what is obhection
Employer's customers are principally printers and
advertising agencies. The nature of the service the Em-
ployer provides to its customers is such that job orders
must usually be scheduled to be out in 3 days to a week,
and thus the Employer normally has no order backlog.
Both Williams and Ross are principally, but not exclu-
sively, involved with ongoing sales. Williams will regu-
larly check the status of the jobs in the shop in the morn-
ing to get a general idea in regard to a promised date for
new orders. In writing up a job order, Williams (or
Ross) will write up a job ticket showing: the customer's
name, the purchase order number, the present date, the
date the customer expects to see proofs, the production
instructions as to line screen, the positives and negatives,
the way to be scanned, and stripped, and a variety of
other special technical instructions. Williams explained
that he prefers to leave as little to guesswork as possible.
Nonetheless, in one out of three jobs it is impossible to
write all the required instructions or desired information
on the order sheet. On certain of those occasions Wil-
liams may call Production Manager Faust, scanner oper-
ator Ralph George, and stripper James Dostal to him for
a direct discussion of a particular job. However, normal-
ly after an order writeup Williams (or Ross) will just go
over the job with Faust, at that time reviewing the cur-
rent work schedule and promised date. It is thus initially
evaluated clearly by management whether the new order
can be done by the time Williams (or Ross) has promised
the customer. There are also daily production meetings
held and a continued schedule check made by Faust with
Dostal and George to accomplish that same end. In that
regard, the General Counsel and the Union have con-
tended that first-shift stripper Dostal, first-shift scanner
operator George, and second-shift scanner operator
Allen Meschke are also supervisors; while the Employer
contends that Dostal and George are leadmen on the
first shift because of their skill and experience, and that
Meschke, similarly, is a night-or second-shift leadman.
3. The production unit complement
The Employer actually operates on three shifts.
During material times the Employer had employed and
paid its 16 production employees on the three shifts as
follows:
First Shift
Date of Current
Hire pay rate
Ralph George
Joe Tocco
Becki Slessinger
Bob Pratt
Jim Dostal
Mark Edelman
Wayne Erting
Ed Lohbeck
John Record
Donna Reinheimer
Greg Kirby
Scanner Operator
4Color Cameraman
Dot Etcher
Apprentice
Dot Etcher
Apprentice
Stripper
Stripper
Stripper
Stripper
Stripper
Stripper
Apprentice
Contact
9/19/77 $13.50
4/16/79 12.85
8.75
3.10
12.37
11.47
11.87
10.87
11.87
7.05
8/4/78
1/14/80
4/3/78
8/11/75
10/22/79
10/10/77
12/17/79
11/6/78
10/15/79 8.75
776
WILLIAMS LITHO SERVICE, INC.
First Shif
.Vame
Jeanne Farrar General
Sect
Allen Meschke Scanner
Ron Goebel Black &
Came
Larry Schaffner Contact
Thi
David (Mel) Scanner
Rainey Appr.
Faust is directly respon
work and its timely produc
a great deal of daily cust:
in-house jobs. He is in char
tion shop employees. Ever
duction meeting (averaging
ed by both George (in reg
and Dostal (in regard to
which may or may not I
(and/or Ross). The produc
shop and the promised del
and discussed daily also b
has become overloaded an
work will not reasonably I
uled date, Faust will go r
have initialed their job ord
ular job or jobs will not b
without payment of (cer
Ross, who know the mon
either order the overtime
money commitment from t
or otherwise order deliver,
After Williams goes o\
with Faust, Faust then take
goes over the instruction
nature of the copy work
determine how and by wI
processed; e.g., whether
camera. The Employer pi
chines and a Brown camer,
work and another came
blowups, screening pos
linework. (In given circun
efficiently operate both
work that can be done on
bendable and less than 20
scanner. Other copy work
George is the only day-shil
do as much of the scann
during the day with the
scheduled date and instru
second and then in turn for
tor to complete. George w
requiring camera work unt
he is done with the last
number of job orders at one
After the work is finishe
random proofs are made al
ft-Continued with the original by George and it is either approved, or
given to the dot etchers for color correction, or it is
Job Date of Current done over. Approved film is then sent on to stripping.
Hire pay rate Involved in preliminary review of the random proofs for
Worker 12/20/79 4.50 adequacy may be George, or (otherwise) the scanner, the
ond Shift cameraman, the dot etchers, or Faust and Williams and
Operator 4/11/78 $12.51 Ross. Williams related that it is often that Faust or he (or
White 7/16/79 11.37 Ross) will send a proof back to George to correct or
raman
raman 12/3/79 10 87 redo.6 Otherwise there is frequent daily contact between
ird Shift Faust and George, though with Faust checking primarily
Operator 12/4/78 $8.00 on whether the jobs are getting done in accordance with
the production schedule, and with George inquiring of
Faust for any required clarification on order instructions.
It is uncontested that George spends the great majority
sible for the scheduling of all of his time in scanning. After proofs are approved (or
ction, and he consequently has the color is corrected and then approved) the film is sent
omer contact in regard to the on for stripping.
rge of all of the above produc- During material times the Employer employed five
-y morning Faust holds a pro- strippers (including Dostal), one stripper apprentice, and
g 20 minutes), which is attend- one contact person on the first shift and only one contact
gard to scanner/camera work) person on the second shift. A stripper generally outlines
stripper/contact work), and and cuts film images, assembles same, and sends such ma-
be also attended by Williams terial on to a contact person who will contact the assem-
-tion status of the work in the blage to produce the proof. Dostal attends the daily pro-
livery dates are thus reviewed duction meetings with Faust and George. He has a
y this group. If a department schedule to work from and he obtains any (upcoming)
id it then appears that certain job clarification required from Faust at the meeting, or
b)e accomplished by the sched- he may do so during the day by using a nearby phone.
to Williams, or to Ross, who Stripping work when obtained from Faust is kept in a
ers, and report that the partic- box near Dostal. A given stripping job may last for 2
be done by the scheduled datee done by the scheduled date ho rs or for 2 days. When a stripper finishes a job he
tain) overtime. Williams andta) overtime Williams and will go back to Dostal, who normally will routinely7
iey in a given job orders, Vill give the next job on the schedule to the stripper, and
(or as necessary get a further Dostal will also then go over the instructions for the job
*he customer before doing so), as necessary. (On simple jobs, which account for half ofy delayed.
'er a new job order initially the stripping work, nothing need be discussed at all.) If a
es the job ticket to George and stripper has a problem, the stripper will bring it to
s withe him. In general the and Dostal, and, if the problem remains, Dostal will bring it
to*wbe de wI a ial t to Faust. If Faust does not know some point of inquiryto be done will automatically
iomr the same is then initially made on the job, Faust will iams or
h ......i .... h ... r, h the customer to get it resolved. A stripper will also cut
y ~.alllllllt
5
L i I I JClllll[ U3 UL
resently has two scanner ma-
a regularly used for four-color
era used for making larger
itives, and shooting most
nstances one cameraman may
cameras.) Any reproduction
the scanner (e.g., copy that is
by 24 inches) is made on the
goes to the camera. As noted,
ft scanner-operator and he will
ling work himself as he can
remainder being left (with
ctions on the ticket) for the
r the third-shift scanner-opera-
ill either keep the other orders
til the cameraman reports that
job, or he may give out a
e time to a cameraman.
ed by the scanner/cameraman,
nd the work is thus compared
' Williams began the Employer's operation in 1971 as a one-man shop.
and he occasionally continues to do producllon Work of all types himself.
including dot etching Williams has testified credibly that he regularly ap-
proves 50-60 percent of the color work done, and that he has also
marked up pro(ofs for color correction After a year of employment. Ross
was promoted in January 1980 to the position of vice president with re-
sponsihilities in sales and personnel. Ross had had prior experience as a
manager of a 125-employee plant in the trade that made four-color bill-
boards, and he at that time regularly purchased that firm's four-color sep-
arations from Williams. Thus, although Ross is not a cameraman himselfl
Williams has testified credibly and without contradiction, and I accord-
ingly find, that Ross alsoi as knowledgeable In the area of acceptable
qualmts of four-color separations Bill Faust was formerly a stripper in the
trade when hired by Williams About the time u:f an industrs strike in
August 1974. Faust was made production manager According Ito Wi-
hams. Faust also can make, and has made, the determination ' hether a
r;ndom proof is adequate or not
7 According ito Williams. the only exception thereto sould he the case
,of a Cery complex job order recently done well hby a stripper: e g.
Frintg. , ho was specifically gluen the next one because of his recent
knowledge of the last one AWilliams testified. again lithout contradiction.
that. though he. Ross, anid Faust on occasilon had similarly directed
Dosal] in the past, a special assignmCent if the stripping v ork wa, net a
regular procedure ias all his slrippers , ere goodu
777
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and assemble the film parts into desired book or page
form.
After the stripper is finished, the stripper brings the
cut and assembled parts to the contact person, who takes
all of the different leaves of the job and composites
them. The contact person then makes the contact of the
cut images used to produce the images on raw film.
However, if the contact person is busy and the job is a
rush job, the stripper will himself make the contact. Oth-
erwise it will be left for the contact person on that same
or the next shift. The contact person makes final (com-
posite) proofs for the customer's viewing, which are re-
turned to Dostal (or to the stripper, who first reviews
them and then brings them to Dostal), who may review
them or proofread with the stripper. Final proofs go on
to Faust, and preferentially also to Williams or Ross,
before being shipped out (and delivered) by Williams, a
driver, or a taxi. According to Williams, Dostal spends
75-85 percent of his workday in production stripping
and the rest in attendance at the production meetings, in
other contact with Faust, and in going over the job with
the other strippers. Employees estimate Dostal's actual
production stripping time at 50-60 percent of his work-
day.
B. The Evidence
1. The leadmen-supervisory issues
a. The contentions
The General Counsel essentially argues that James
Dostal is a supervisor because he is considered to be the
foreman by employees in the stripping department, he
spends 50 to 60 percent of his time actually doing pro-
duction and maintenance work, employees have reported
to Dostal when they were sick or otherwise unable to
report to work at the regularly scheduled time, Dostal
has initialed timecards of those employees who failed to
use the timeclock, Dostal has a work schedule which
varies from other employees, Dostal effectively directs
employees in their work throughout the course of the
day, he participates in production meetings attended only
by management and/or supervisory personnel, he assigns
work to employees, he informs employees how he wants
work completed and he reviews work as it is completed,
he requests employees to work overtime when the work-
load is heavy or to take vacations when the workload is
light, he earns substantially higher wages than other
strippers, and he has the authority to recommend the
hire of employees as well as having hired employee
Larry Schaffner. In contending that Ralph George, a
scanner operator, is also a supervisor the General Coun-
sel argues that George was intimately involved in the
hiring of employee Joseph Tocco. The General Counsel
would rely on the initiation of employment contact
through an inquiry of George; the circumstance that
George showed Tocco around the camera department
and first talked to Tocco for one-half hour about the re-
sponsibilities Tocco would have, and George's assertion
of having "control of the department"; that Tocco talked
to Williams pursuant to the suggestion of George and
was then hired; and that Tocco again spoke to George
and was told, "Good, as soon as you can get out of there
[his prior job] come on, you have a job here." The Gen-
eral Counsel would also rely on circumstances that re-
cently, on June 20, George requested Tocco to work
overtime on a weekend; that George explained the re-
quirements of the job to Tocco; that George did not
work the weekend, but did call Tocco to discuss the
status of the job Tocco was working on; and that, when
Tocco inquired whether he should stay and complete all
four sets of positives on which he was working, George
told Tocco, "Just work your seven hours and finish it
up." The General Counsel would also rely on the fact
that George participates in daily production meetings at-
tended by Faust, Dostal, Williams, and Ross; that he re-
views the work performed by the camera department
employees, and informs them how to make corrections in
the work; that he receives substantially more in wages
per hour than other employees in the camera
department; that he initials timecards; and that he has
disciplined Tocco by cutting his hours. Finally, the Gen-
eral Counsel in contending that Allen Meschke is a su-
pervisor would rely on (a) the Employer's announcement
in February that Meschke was the night supervisor and
(b) the notice given to employees to the (contended)
effect that Meschke should receive the same "support
and cooperation" as was to be extended to Ross, then an-
nounced as promoted to vice president in charge of sales
and personnel. Again the General Counsel would rely on
Meschke's initialing of timecards and that he receives
substantially more than night-shift camera department
employees. Essentially, Respondent asks the Board to
find that Dostal, George, and Meschke are skilled crafts-
men, who, because they are highly skilled and experi-
enced, carry related responsibility for assigning and di-
recting the work of others, but as leadmen, and not with
that independent judgment and discretion such as would
mark a supervisor. Rather, the Employer contends that
these individuals perform certain functions according to
predetermined procedures and instructions of superiors in
a small and highly integrated operation; and that there
was not a scintilla of evidence that they have acted inde-
pendently in hiring, firing, disciplining, rewarding, or
otherwise directing employees. Finally, the Employer
argues that, if the General Counsel's contentions prevail,
there incredibly will result 6 supervisors for a unit of 13
employees.
b. The strike in St. Louis
For ready comprehension and evaluation of the evi-
dence and party contentions on the supervisory-leadmen
issue, it is deemed as warranted to be noted at the outset
that, in support of new contract demands, Local 505 en-
gaged in a strike against the printing industries of St.
Louis between August 3 and December 17, 1979, which
strike had a direct and multifaceted effect upon the Em-
ployer's business operations. Inter ulia, it dramatically in-
creased the amount of the short-term service business
that the Employer offers to the printing and advertising
trade.
In 1979, Wayne Erting and John Record were work-
ing as strippers at Beaumont Graphics, a union shop and
778
WII.I.IAMS LITHO SERVICE. INC
an employer covered by a certain contract then existing
between the Printing Industries of St. Louis and Local
505. By its terms that contract was to have expired on
June 30. 1979. Erting had worked for Beaumont Graph-
ics for the prior 12 years and he had been a member of
Local 505 for those same 12 years. Record had also been
a union member for over 10 years, though having
worked during such period in both union and nonunion
shops, and last as a stripper for Beaumont Graphics.
Larry Schaffner had been employed at Beaumont Graph-
ics, apparently as a contact employee s also, for about 3
years and at Color Associates for 2 years before that;
and he had been a member of Local 505 for over 5
years.
On August 3, 1979, a strike by ILocal 505 in support of
its contract demands ensued, inter alia, at Beaumont
Graphics.9 The strike would last until December 17,
1979. During the duration of the strike. and for some
period thereafter, there was a tremendous amount of
work generated for Williams L.itho, it then having
become one of the few color separation plants that was
left still operating and serving the entire city of St.
Louis. On August 3, 1979, Erting. Record, and Schaffner
went on strike. While there is some conflict as to precise-
ly when, I am satisfied that it Vras shortly thereafter that
Erting, Record, and Schaffner later went to work at Wil-
liams Litho initially on a nonpermanent. or temporary,.
basis. Erting related that he reported to Faust when he
first started and recalled Faust as then being the strip-
ping foreman. Erting recalled that he did not have much
discussion with Williams at that time as the latter was
busy in sales. According to Erting, it was subsequent to
his hire that Faust was promoted to coordinator, and it
was then that Dostal became the stripping foreman. the
position that Faust had previously held. The record does
not reveal that there was any announcement of Dostal's
becoming a stripping foreman as such. While several em-
ployees have herein referred to Faust as being a coordi-
nator, Williams has testified, and I find credibly so, that
Faust became the production manager. It is also estab-
lished of record that Dostal had been the first employee
ever hired by Williams, though his tenure was broken
Thus, Dostal was initially employed from September
1973 until discharged in April 1977. and last from April
1978 to the present. Dostal had never previously been a
member of Local 505.
' As descrihbed h, Schaffn.ii r, a colltaci I lrii r. 'Cit'lxe', xiorkillZ IillI Ih1om
sirippers. and omripo tltc is i11n ti ) fOlr .cpiar.aiu .'1hi rs I. al prloril ,I t ]'
plate call he nude from the four pieCes of f/liTl it he iontaI.li Il.lil Cnis I,
%acuum framie n.achillne thlch , hert1 pr .ct d 1 liglht IiITIl, .11On iand ex-
poses w rkinig filmr on tol raw film Iril order I, urOI lip %lli tiih l ,,.,i, I In
proofrling.. Ith' ci-ilac pC'rllr) puils e('dt.l lhuol di.rii o*r lIt,'S 1it 1ip I.
ellnou. red, blue. or hlac.k ilml ItI rk, lihke a plriled prssoel nletI
After thilt I prodttlcd. II Ir returned tO tihe irippcr seJG,,'( rcii%" It rid
gives iI IO t)oD tal. Iho) liooks ial ii and if It i i'lurlid l'ka.N .1.s ''lit]Ig 11
oul" If If iis 1i o right ui d the fiiltl i IS h' rlirppCi r' i[ i llli. k' L hic rldt n
it or/ if the icolor 1 noi Irl ght II Is ,urcul cdrt hI othct'
Thel strike A.c, aippirearils hct i ftirsl clir, xrlk ie ii supi rl ri ,il-
iract d.rnllillds cl t'd }fla lti' illl10t Ill {} steers
c. lhe specific eridence in regard to the .satus of
s tripper Jim Dostal
The General Counsel would appear to rely principally
on the testimony of employees Lohbeck, Erting, Record
(strippers), and Schaffner (contact) in support of the con-
tention that Dostal is a supervisor.
Lohbeck was initially hired as an apprentice stripper
by Williams Litho on October 10, 1977, and he subse-
quentl) became a journeyman stripper on October 10,
1979. Lohbeck recalled that he was hired by Williams,
who told him at that time that Faust was the foreman of
the stripping department, and Lohbeck asserted that
Dostal now occupies the same position. Thus. Lohbeck
related that Dostal hands out the work assignment, goes
over the job as to how it is to be done, and instructs as
to what a customer wants; that on occasion Dostal has
taken swork away from him and given it to another strip-
per to finish (or to start); that some jobs call for over-
time, and as far as he knew Dostal determines who will
work the overtime ,when it is not necessary that all the
strippers work overtime; and that Dostal on occasion has
told strippers to quit talking and get back to work. Ac-
cordinlg to Lohbeck, Dostal does stripping production
work only about half the time; and the remainder of his
time is spent going to production meetings, talking to
Faust, and going through the work, ensuring that it is all
there.
L ohbeck, however, has also readily acknowledged that
there are varying degrees of difficulty in the stripping
work; ° that specific directions from the customer are
written on the job order: and that many of the customers
are advertising agencies that themselves will mark up
proofs and frequently come back with desired changes.
In these respects Lohbeck has confirmed that on occa-
sions Dostal has told him that Williams, Ross, or Faust
wanted the stripping job done a certain way; and Loh-
beck has specifically confirmed that Ross, though not a
stripper, has told him directly how he wanted a job
done. Lohbeck has also acknowledged that some of the
Employer's work is repeat work; that strippers generally
do have their own ideas as to the best way to do a given
job; that they will regularly exchange comments on how
best to do a job; and in that respect Lohbeck also has
readily acknowledged that Dostal has done a substantial
amount of stripping himself, that he is an experienced.
good stripper, and that Dostal may thus suggest the way
of doing a job to him. Finally, Lohbeck confirmed that
Faust, the former stripper foreman, presently an admitted
supervisor. does continue to coordinate the actisities of
both tile stripping and camera departments.
Lohbeck has otherwise testified that Dostal sits at a
stripping table with a light just as Lohbeck does nearbyh
that they talk all day, and, significantly, that Dostal has
As d's, ruled hs i [ibhbcck a stripper esentlail' uii.s ai I sixlo kIIll t'
Isk l IMr/ r
1
x. f talpl I 1, ' pp in n, li it irp rl lltr l u jc } h . ILJIilliII g ;1i1ji
Iplnlg IC pIuc e'lllrieul PI ,kil tiIleg/riI oi n 1 sIrlpplllg bhot. ot (nislir or
eir'lr ;ittl lec) t.I ' Slriplpll, a.tlorlll ii thc' tIcga.llg (,, i11Is. Ir l Alio .IIlllgI
IIt iCs oFr p1iC .' Oif I i C pe ll .i ll'di i ai lltllillig 111 u Irx o\ ' e i ' i*, ll rl i 1,
"Tilc hl.akgl indl ll I ,rl II IrllilOl Il i 1 i lhllh,11tit hil, kgrollld a d rid strippring
111ri, rilllr i ll ;I issrTlhl\ (I stiiiClcill 11 l Oril.llN s c It iini. rling eq1ili('rlit
st, .i h, iirldhI]' Ll Sit ', turl i uh IIcII tuioti'e dil|,f I ll u't the 1N' Ics' ' it)
[''di A '" ( , It
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
never disciplined him;" and Lohbeck admits that some
jobs are rush, and that some of the other strippers are
better at outlining than he is. With regard to overtime,
Lohbeck has also testified that, though Dostal has asked
him if he wanted to work overtime, he has refused
Dostal without any incident. Lohbeck also acknowl-
edged that, though Dostal has given overtime work out,
he did not know whether Dostal had received his in-
struction on it from others. Although Lohbeck has also
testified that he has entered desired time off (vacation)
on a calendar at times kept near Dostal and notified
Dostal (when he did so) who has said okay, it is also es-
tablished of record that Dostal has never refused any
such request by any stripper.12 Lohbeck also related that
Dostal as well as Faust and Williams has asked him to
take a vacation day when business was slow. However,
Lohbeck has confirmed that in the last 3 months Dostal
did ask him to take a day off and he refused. In contrast,
later that same evening Williams came to him directly
and asked him to do so. Lohbeck did then take the day
off as he has never refused Williams. In regard to a sick
leave request he would call in to either Dostal or Faust.
Erting recalled going to work at Williams Litho ini-
tially on August 9, 1979, while Record recalled it as
being in early September 1979, and that a friend in the
trade had informed Erting that Williams Litho was look-
ing for two strippers. According to Record, Erting had
thereupon contacted Roger Williams on their behalf, and
Erting and he were subsequently hired as temporary
strippers. Record, however, had previously notified the
Union that he was going to go to work for Williams
Litho. Record related that at the time the Union stated
its preference was that Record not do so, but then said it
was okay if he did. During the period of the strike,
Record continued to perform picket duty at Beaumont
Graphics whenever assigned, a condition of which Wil-
liams was aware.
Although Erting related that he was initially hired part
time, he also confirmed that he regularly worked 40
hours (at straight time), and almost all of that time he
worked overtime. Erting related that he found he liked
the job and the people. According to Erting, he later
spoke to Dostal about becoming a permanent employee
on numerous occasions. He related that Dostal had said
to him, "Well, if you would really like to work here, I
would like to have you work here"; and that Dostal also
told him, "I have suggested to Mr. Williams I would like
to have you." However, Erting testified that Dostal also
told him, "I hope you can work some kind of deal out
with Mr. Williams that he could get up some kind of
" The General Counsel offered evidence of Lohbeck that )Dostal on
one occasion had said to Greg Kirby (then a contact man) to start getting
to work on time. Kirby's subsequent discharge on April 23 is shown of
record to have been the subject of a charge filed and subsequently with-
drawn. However. no convincing evidence, indeed no evidence at all, was
offered that Dostal had effectively recommended the discharge of Kirby
or anyone else
"2 The record reveals that the calendar display of desired vacation had
been itself initiated by Faust shortly before the strike and at a time when
he was stripping foreman on the second floor. When Faust later became
production manager and moved down to the first floor office area. the
calendar was not immediately brought down to be with Faust until Wil-
liams directed it be done following an incident of recent staffingg difficul-
ty
meeting." Apparently, such a meeting was eventually set
up by Dostal. However, Erting talked at length with
Williams alone, discussing at length the Company's plans,
hospitalization, work hours, and rate of pay. Erting ac-
cepted Williams' offer of permanent employment as a
stripper on October 22, 1979. According to Erting, it
was thereafter in late November or early December that
the Union put up a picket line at Williams Litho. As al-
ready then a permanent employee, Erting crossed the
Union's picket line.
The record reveals that Erting had also previously no-
tified Larry W. Schaffner that Williams was looking for
some help. Schaffner was first hired by Williams Litho
apparently in early October 1979. Schaffner related that
when he first arrived at the shop Dostal had said to him,
"You must be Larry Schaffner. Follow me, and I will
show you around." After Dostal did so, he asked, "Are
you game to starting right now?" Schaffner went to
work that afternoon without talking to any other person.
Schaffner thereafter worked as a contact man on the
second (or evening) shift. Schaffner also recalled it as
late November when Local 505 pickets were established
at Williams Litho. Schaffner was upset when he came in
and saw Local 505 pickets as Christmas was coming on.
He immediately spoke to Erting and Record and men-
tioned to them, and also to Ralph George and Jim
Dostal, that he would also like to work there permanent-
ly rather than go back to Beaumont. They all agreed that
they would like to have him there; and, according to
Schaffner, Dostal and George said they would speak to
Roger Williams and see what he had to say about it. The
following day Schaffner received a call from Dostal who
told him to come in and talk to Williams about working
full time. Schaffner did and spoke to Roger Williams
alone in his office. They talked about Schaffner's prior
experience at Beaumont and what Williams had to offer,
his plans on the job and everything. (While working
theretofore at Williams Litho, Schaffner had worked just
outside of Williams' office.) During their conversation
Williams made Schaffner a wage offer which Schaffner
related he considered over the weekend and accepted on
the following Monday. The record reflects that
Schaffner was hired effective December 3 (a Wednes-
day). Schaffner thereafter crossed the Union's picket line.
Record related that he was at work when Local 505
established a picket line at the premises of Williams
Litho, contending the Employer was doing struck work.
Williams at this time also offered Record permanent em-
ployment. Record, however, told Williams that, after the
strike was over, he would consider it; but that he would
not cross the Union's present picket line at Williams
Litho. With the strike over on December 17, 1979,
Record again met with Williams and accepted Williams'
offer; and he was promptly thereupon hired as a perma-
nent employee at Williams Litho. There is no question
on this record that Roger Williams was well aware that
Erting, Record, and Schaffner were not only previously
members of Local 505, but that Record was a member
with strongly held union beliefs. I note in passing that
Erting and Record were paid $11.87 an hour, with
780
WI.I LIAMS LITHHO SFRVICI'. INC.
Dostal receiving 50 cents more an hour. I find that
Erting and Record were experienced, good strippers.
Record related that Faust, who coordinates the
different departments, will notify the strippers concern-
ing overtime work, but confirmed that usually it was
Dostal who informed him. However, Record acknowl-
edged that he also was never required to work overtime
by Dostal. Erting related that Dostal has also requested
him to work overtime, and that he had always worked it
in the past until March 1980. However, according to
Erting, it was within a 2-week period after March 7 that
he first refused overtime, telling Dostal that he was upset
over having the pay cut (discussed infra) to the point
that he preferred not to work until that matter was re-
solved. Dostal simply replied, "[O]kay." In contrast,
Erting also related there was another occasion when he
refused overtime when Dostal was not present. Erting
recalled the circumstances were that he had been asked
to work awfully late and he was still upset. On this occa-
sion Williams went away and came back and said, "I
need you to work overtime, will you do it?" Erting saw
Record giving him the "high sign" behind Williams that
"he'd better do it," and Erting subsequently worked that
day. Although Record and Erting on occasion rode to
work with Dostal, both Record and Erting also regarded
Dostal as their immediate boss, or foreman. Both con-
firmed Lohbeck's estimate that Dostal did production
work about 50 to 60 percent of the time, but described
the remainder of this time as being spent relatedly in
meeting with Faust for instructions, going over the job,
coordinating the flow between floors, and making sure
that proofs went out. Both related that Dostal assigns
work to the strippers; but confirmed that Dostal regular-
ly receives instructions from Faust, and that, though
Dostal initially reviews the work and will return it if it is
wrong, Dostal (still) takes the work on to Faust for his
review.
d. The specific evidence in regard to the status of first-
shift scanner operator Ralph George and second-shift
scanner operator Allen Meschke
In support of his position that first-shift scanner opera-
tor Ralph George is a supervisor, the General Counsel
would appear to principally rely on the testimony of
Joseph A. Tocco. The essential facts are as follows:
Tocco was hired by Williams Litho on April 16, 1979,
as a four-color cameraman, a highly skilled position ap-
parently second in the trade only to that of scanner oper-
ator. Tocco had previously worked at Color Associates
for 4-1/2 years and at another union shop prior thereto
for 8-1/2 years. Tocco had thus been a member of Local
505 for 13 years prior to employment at Williams Litho.
While working at Color Associates, Tocco had worked
with Ralph George. (George had been hired by Williams
Litho about a year and a half earlier on September 19,
1977.) According to Tocco, he heard through a mutual
friend that there was an opening at Williams Litho and
that George would like to talk to Tocco about it. In a
resulting phone contact George told Tocco that there
was a job opening, with room for advancement; and
George suggested that Tocco come down and talk to
him, as that way Tocco could then see about the posi-
tion. Tocco did so on April 2, 1979.
Tocco related that after he arrived, for about half an
hour, George had first shown him around the shop, and
told Tocco that his duties would be (four) color separa-
tion camera work. George told Tocco he had the job if
he wanted it; and he suggested that Tocco then go speak
with Williams, which Tocco promptly did. Tocco spoke
with Williams alone, for about an hour. According to
Tocco, they discussed Tocco's background, that it was a
close-knit family and what Williams expected of him,
how Williams liked things to be done, and finally dis-
cussed money and benefits which Tocco summarized as
being liberal. When Tocco indicated agreement on the
offered wages and terms, Williams told him to go ahead
and give his present employer 2 weeks' notice. Before
leaving, Tocco returned to George, and told George that
he was going to get along fine with Williams; and told
George he wanted to work there and appreciated it.
Tocco related that George then said, "[G]ood"-as soon
as he could get out of Color Associates, Tocco had a job
there. The General Counsel would make much of the
latter. However, as noted, Tocco had also testified that
Williams had already told Tocco to give his present em-
ployer 2 weeks' notice; and also that when he did, if he
was fired, Tocco could immediately come to work at
Williams Litho. Tocco candidly acknowledged, and
there is really no question herein, that it was Williams
who hired Tocco after a personal interview.
Tocco testified that George attends the production
meetings with Faust and Dostal, and occasionally Ross;
but also confirmed that George spends the great majority
of his time on the scanner. Tocco did also testify that he
had been recently offered overtime by George (on a
Friday and Saturday) along with specific directions on a
difficult job given to him and another (second-shift) cam-
eraman who was to do some preliminary work when
Tocco had declined the Friday night overtime (prelimi-
nary) work. Tocco testified that George did call him on
Saturday, checking on the progress of the job; and that
he did give further technical directions, including that
Tocco was to finish up the job in the 7 hours he was to
work that particular day. Tocco did acknowledge that
George did not say who made the initial overtime deci-
sion, but asserted that George would know what over-
time is involved by people (Faust, Williams, and Ross)
informing him what job or jobs he had to get out of the
department; and he admitted that he was not familiar
with what went on in those management positions. In
that connection Tocco had otherwise testified that Faust
does not tell him how to do his job, as Tocco was a jour-
neyman cameraman with 15 years' experience and knew
what was expected of him; and that, although Faust co-
ordinated the camera work production schedule, he was
not knowledgeable about camera work itself. Tocco ac-
knowledged that George was a camera expert, and that
George previously had reported directly to Williams. Al-
though the General Counsel would rely on Tocco's as-
sertion that George had in April 1979 originally said the
Employer's camera department was under his control,
Tocco on other testimonial occasions could not recall
781
I)D CISIO)NS ()F NATI()NAI LAI()R REI-.A IO()NS I()ARI)
George saying it was under his control, though he did
recall George had said, "[T]his is my baby."
Tocco, however, did assert that George had disci-
plined him, based on the statement of George that he
was going to put two (camera) employees on the night
shift because Tocco would not work any more overtime.
(Tocco related that in March Ron Goebel was on days
but now works a camera on the night shift.) According
to Tocco's understanding, Goebel wvas a black and white
cameraman in training to be a four-color cameramant,
though he also acknowledged that he did not know Goe-
bel's present work status.
The General Counsel's evidence that second-shift scan-
ner operator Allen Meschke is a supervisor is essentially
that earlier reported, and no more; and thus, as noted, is
based essentially on statements made in a February news-
letter to employees. Therein, inter alia, appears:
New Appointments
1. Larry Ross has been named vice-president.
Larry's duties will include personnel management in
addition to his normal sales function.
2. Allen Meschke has been promoted to night su-
pervisor.
All of the support and cooperation you have given
in the past will hopefully be extended to Al and
Larry. This encouragement will certainly be re-
ceived with maximum enthusiasm.
Evidence was offered that on two occasions Meschke
initialed an employee's timecard. There was otherwise no
specific evidence offered independently as to his exercise
of statutory supervisory authority. Working also on the
second shift were only black and white cameraman
Goebel and contact man Schaffner. It is observed that a
third scanner operator apprentice, David "Mel" Rainey,
worked on the third shift alone. As noted, a work assign-
ment as scanner operator or cameraman is automatic.
e. The Employer's evidence
Williams testified essentially that he has done all of the
actual hiring and firing of full-time employees except
that since January and since Ross' appointment as vice
president in charge of personnel a discharge and an in-
definite layoff have been accomplished by Ross after
consultation with Williams. Williams testified that,
though Faust cannot hire anyone on his own, Faust
could fire an employee, though he has not done so to
date. Williams testified that he would give a recommen-
dation for hire made by George or Dostal a great deal of
weight, just as he would the recommendation of Erting
or any other really good craftsman.
Williams thus testified that he has done all of the
hiring of permanent full-time employees for the shop and
this record fully bears him out. Williams related that he
never really hired people on a temporary basis as such
during the strike. He explained that at that time they
were working three shifts of strippers and contacters
around the clock; he also had three or four dot etchers
working day and night; the cameras were being run 24
hours a day; and one scanner (at that time) was working
24 hours a day, 7 days a week. According to Williams,
during the strike a lot of employees would be there a
short while, only to go to work someplace else; and it
was common knovwledge that if you had a buddy, for ex-
ample on a picket line, to bring him in as there was a lot
of work. I find Williams' above relations in the context
of this case to be generally credible ones.
The specific hirings of Joe Tocco, John Record,
and Larry Schaffner
Williams related that with regard to the prestrike
hiring of Joe Tocco, a four-color cameraman, the Em-
ployer simply needed a four-color process cameraman at
the time; and Williams asked around in the shop if
anyone knew or had worked with anyone who would
possibly be interested in going to work for the Employ-
er. According to Williams this is the way he normally
does it. Ralph George, who had worked at Color Asso-
ciates, called someone at Color Associates who suggest-
ed that they contact Tocco. Williams acknowledged that
he asked George, who had worked with Tocco, what
kind of a craftsman Tocco was, and that George told
him Tocco was a good, hard worker, and was pretty
darn good at color separation. Williams himself knew
that Color Associates did color separations, and that they
had a good reputation. Williams testified that he told
George, "Why don't you see if you can't get him to
come in and talk to me?"
Williams acknowledged that, when Tocco eventually
came in, Tocco first talked to George and was shown
around the shop. Williams testified, however, that Tocco
then came upstairs to his office and that they talked con-
siderably, and that during the conversation Williams
hired him. Williams related that he first checked into
Tocco's background, they then discussed the technical
aspects of shooting positives, and thereafter Williams
told Tocco about his Company. Williams testified that he
had told Tocco that he had an open-door policy; 3 that
he told Tocco of the Company's profit-sharing plan and
its health and welfare plan; and that he then discussed
wages, making a notation for Tocco's file at the time that
Tocco would start at $11 an hour, that he would work
40 hours weekly for a total of $440, and that all union
raises were to apply. Williams also confirmed telling
Tocco to give his employer 2 weeks' notice.
Williams testified that he also hired Wayne Erting and
John Record. The circumstances were that both came to
work part time right after the industry strike. Williams
related that at that time he had so much work that he
was desperate for strippers. He contacted a stripper at a
nonunion company to inquire about available strippers.
Williams recalled that Erting called him back almost im-
mediately. Williams confirmed that Erting mentioned
that he had a friend who was also interested in work
(Record) and Williams told Erting that it would be fine
to bring him along and anyone else. Record and Erting
" I credit Williams, hiom I fonund Io be generally credible, and on this
malter as s.cll, rnoting il that ctinecrtion that Lohbeck testified that he
knew that Williamls had an open-door policy from the time of his own
initial hire (1977) when Williamlis told him that if he esver had any proh-
leims to coRne and talk to him about them
782
NV II IT1 r I ITHFO) SF-RVICF INC
were hired as part-time (nonpermanent) employees. Both
are good, experienced strippers Williams confirmed that
Erting later was offered and accepted a full-time position
on October 22, 1979. According to Williams. Record
worked steadily except for the time he took off to picket.
Since Erting and Record were good friends Williams
kept after Erting to see if Record would he also interest-
ed in going to work for the Employer full time. Williams
confirmed that Record's position was that he would not
cross a picket line to go to work. When the picket line
was established at the Company, Record stopped work-
ing for the Employer, though offered permanent employ-
ment. telling Williams, however, that it would be likely
after the picket line was down that he would be interest-
ed in permanent employment with Williams Lithe After
the strike was over and the picket line was removed,
Record came in and talked to Williams in the office and
Williams hired him.
In connection with employment during the strike. Wil-
liams testified, as noted, that he would ask anyone in the
shop if they knew of anyone to bring them in to go to
work; and that many were employed at that time with-
out interviews. If someone showed up they were put to
work, only being shown where the materials were.`1
With regard to Schaffner, Williams testified that he did
not know hosw Schaffner initially got hired during the
strike, and that Schaffner could have talked to anysone.
Williams did recall that during the strike, shen the
picket line was established at the Employer's premises,
Schaffner would not cross the picket line as a part-time
employee. On that occasion Williams offered full-time
employment to Schaffner, who accepted it.
According to Williams, Faust does discipline the pro-
duction employees in the sense that Williams will tell
Faust of any observed employee conduct that Williams
wants corrected, unless the observed conduct is very se-
rious. However, Williams testified that it is he w ho de-
cides if a vacation date must be taken by an employee
because of slack work, though he will ask George or
Dostal initially to ask for volunteers. If no one volun-
teers Faust or he will then ask an employee to take the
time off. Williams testified without subsequent contradic-
tion that at that point Williams will go in a line of suc-
cession from the individual who had taken the last day
off. I credit Williams in regard to mandatory time off.
With regard to Tocco's assertion that he ,,as disci-
plined by George by having overtime taken away, Wil-
liams denied it, rather explaining that the situation was as
follows: Williams asserted that it was in January and
February 1980 that they had Tocco working on days and
two cameramen on nights. Before that time, during the
strike, they had operated in the same manner, and it had
worked well for them. However, after the strike was
over on December 17 one of those two (night) camera-
men then employed went back to his old job. In January
Williams hired another four-color cameraman to replace
Witliants relaled thit (occ.asionalls) he did hire someonl e v. ho , ;r s
incompeientr thlt he spoke II Ros,s. Faunst. and D 't) ti l hinXit tilr h
man; that he could (perslnalkl)) see tham the lobs done hb thit milil lcre
being done 'ers hadly, and h, whom tl Rosh Job hiiad heetl parlli`ilrla,
messed up ttlou ,er. it las U illiams l.hio ntOlltcied the enilplo! ec ill d
told the emplo, e¢ thtill lie ,ienlid noil be needed hack the rnext Cack
him: namel, Budd Rapp. Williams candidly acknowul-
edged that he discussed the matter with Ross. Faust. and
George andl they all thought they needed another four-
color cameraman. Rapp was discharged on February 27.
With regard to the scheduling of vacations by employ-
ees, Williams testified that Faust had initiated the idea of
a calendar before the strike of August 1979. Strippers are
on the second floor. When the stripper was ready the
practice .vas that the stripper would just 'write in his de-
sired vacation time When Faust moved downstairs he
did not take the strippers' vacation calendar with him. It
developed that a lot of times on Monday mornings a
stripper was not there. Williams candidly acknowledged
that Dostal had tried to avoid two strippers being gone
at the same time. (Employees conceded Dostal did not
refuse vacationi requests.) Williams had Faust take the
calendar to his desk and keep it up there so that the Em-
ployer ,would knoxs when the vacations were being
scheduled to be taken.
f. Other considerations
Williams, Ross, and Faust are all salaried employees.
Dostal, George. and Meschke are all hourly paid, regu-
larly punch a timeclock, and receive the same fringe
benefits as do other production employees. Dostal. em-
ployed (last) since April 3. 1978, receives 50 cents more
an hour in wages than strippers Erting and Record, both
of whom are experienced strippers who were only re-
cently hired in October and December 1979, respective-
ly. George and Meschke are scanner operators. a posi-
tion acknowledged to be at the top of the trade and
above that of a four-color cameraman. George. em-
ployed since September 1977, was paid 65 cents more
than Tocco also on the first shift. Meschke, employed
since April 11, 1978, receives $1.14 more than black and
white cameraman Ron Goebel, also on the second shift,
but 34 cents less than four-color cameraman Tocco, em-
ployed a year later and working on the first shift. While
it is show'n that Dostal, George, and Meschke have all
initialed the timecards of other employees, so also has
the record revealed that the payroll secretary has done
so as well, an equally significant number of times. '
2. The union activity
a. The apparent causes of employee unrest; the
commencement of union activity
The Employer's workweek was essentially 40 hours
with time-and-a-half pay received for overtime hours,
and generally a premium difference paid journeymen. In
contrast, the Union's current (and prior) contract essen-
tially provided for time-and-a-half pay for each 2 hours
worked over the standard day shift (which generally was
a 7-hour day on a 35-hour workweek in the area) and
double time thereafter. including double time pay for
t {he (Jctr`rl C i.onrTcl his illlrouidced xite\ir c h, sipipulaioln that the
inn lriecrds initialed dIilrirg tilt period of I)Decen er 31. 1 7Q. ihrliriru h Jtilrl
1i 1i)1) sert thus iTtII llled hb t)qIs 1il1 sonie 26 times, hs 1liusl, lrodlel
1on1 manager. 5 iillCs hb Ross oIde ¥shke hN 1ie 1hk1i I and Ja.i11c
Soer, tctreir\. (pa\t.o oll), ol It illeTIC
7X3
DECISIONS OF NA l()NAL LABHOR RELATIONS BOARD
Saturdays and Sundays. 16 As noted, from the time of the
strike, and continuing through March 1980, there had
been considerable work generated in the Employer's
shop and there had been resultingly considerable over-
time to be worked by the employees. Record asserted
there was discontent in the shop and major interest by
employees at this time about the overtime payments. Re-
cord's understanding was that some were getting double
time and some were not. The record does not clearly
reveal which of the Employer's employees, if any, or
when, may have actually received double time. What it
does reveal convincingly was that the Employer did pay
certain employees (journeymen) a $1 premium in their
rate, 35 cents of which was identified by the Employer
as an hourly rate makeup provision for the difference in
union pay for overtime. Record acknowledged otherwise
that Williams Litho paid union scale.
I am convinced that it is more probable that it was in
early February that Larry Ross was put in charge of per-
sonnel."7 According to Record, in succeeding weeks the
employees became upset with Ross. On February 27, em-
ployee Bud Rapp, hired as a night cameraman in Janu-
ary, was in appearance fired (solely) by Ross without
prior warning. Record had worked with Rapp at Beau-
mont Graphics and personally liked him. Record, cor-
roborated by Erting and Lohbeck, testified there was
considerable employee feelings generated that Rapp's dis-
charge was unfair, as accomplished without any proper
warning. Erting acknowledged that his own expressed
reaction at the time was one mistake and you could be
out of a job like Bud Rapp. Record related that the em-
ployees kept coming to him, asking him about what was
going on and what could be done about conditions in the
plant; and they asked Record for a comparison of the
conditions in the Employer's shop with that of a union
shop. Record would freely tell them his own views.
As some of the employees had indicated to Record
that they wanted a meeting with the Union, Record
made the first contact18 with the Union and arranged for
'6 E.g., see GC. Exh 23, sec. 11.1-11.3, pp. 14-15. It was stipulated
that under the successive contracts (with durations, respectively, of July
1, 1977, to June 30, 1979. and July 1, 1979. to June 30, 1982) between the
Printing Industries of St. Louis and Local 505 regular hours are set at a
5-day, 35-hour workweek, with time and a half being paid for the first 2
hours of work over 7 hours per workday and double time being paid fior
hours after that and on Saturdays and Sunday Union Vice President Witll
later testified that a few shops (e.g., under first contract) still had a 4(0-
hour workweek. In any event, Williams Litho did not pay overtime in
the contract fashion. Rather, the Employer paid straight time oil a 4(1-
hour workweek basis and time and a half thereafter, with the above pre-
mium paid to journeymen (except Lohbeck).
" I also find that it was in February that the Employer had distributed
to each employee its February (employee) newsletter in which it report-
ed: the Employer had had record sales of over $1 million in 1979. that it
had purchased additional and more efficient equipment; that it had plans
for prospective new quarters, and that employees' profit-sharing figures
Hould be in about the end of February. As earlier noted, it also confirmed
to employees that Ross had been promoted to vice president in charge of
personnel.
' Prior to going to work with Williams Litho, Erting had also notified
the Union and received their okay However as noted, Erting had
worked behind the picket line of Local 505 in December 1979 Erting
denied that charges were ever brought against him for doing so1 though
he acknowledged appearing before the Union's executive board for an in-
vestigation of the nature of the work they were then doing; i.e., whether
it was struck work His testimony otherwise was that if there was discus-
a meeting to be held on March 3 in the Union's board
room at its headquarters in St. Louis. When the meeting
was first being arranged, Record intended the first meet-
ing to be for just a few employees, and that it be held
without Williams knowing anything about it. However,
within 2 or 3 days, according to Record, it seemed that
everyone in the shop knew about it, so Record then
went about and personally asked all the employees in the
shop if they wanted to come to the union meeting, in-
cluding Jim Dostal. According to Record, Dostal's reac-
tion was that he did not feel it was time for the shop to
go union; but that he at first indicated to Record that he
was going to go to the meeting.
Lohbeck, who was not a prior member of Local 505,
related credibly that, in the week prior to the union
meeting of March 3, he had discussions with Record,
Erting, and Dostal about the Union. The discussions cov-
ered generally what the Union had to offer, what they
were presently getting, and about signing union cards.
His discussion with Dostal, who also had not previously
been a member of Local 505, concerned whether they
would go to the union meeting; and he recalled that he
had first heard about the union meeting on either
Wednesday (February 27) or Thursday (February 28).
Dostal related that his first knowledge of union activi-
ty at Williams Litho came a day or two after Rapp was
fired, subsequently confirming that it occurred on Thurs-
day, February 28. Employee Mark Edelman, who also
had not previously been a member of Local 505, came to
Dostal after lunch and told Dostal that there would be
an informational meeting at the union hall the following
Monday. Edelman asked Dostal if he would be interested
to go. However, Edelman also told Dostal that the rest
of the guys in the shop, mainly the strippers, did not
want him informed; Edelman further told Dostal that
they were afraid that Dostal would go to the union hall
and run back and report everyone that was there and
what went on. Dostal told Edelman that he did not
know if he would go or not. Edelman then said he
hoped Dostal did not burn him by telling Williams of the
meeting. (I do have difficulty in fully accepting Dostal's
further relation that he did not know what Edelman
meant by the latter comment. Nor do I readily accept
Dostal's assertion that Edelman in the interim between
Dostal's subsequent conversation with Williams had in-
formed Williams of the meeting, in the face of Williams'
subsequent testimony that his first awareness of the union
organizational effort at his shop was on March 3, or
shortly prior thereto, when Dostal came up to him and
said that the Union was having an organizational meet-
ing.) Dostal otherwise acknowledged having a conversa-
tion with Williams that Thursday in which he told Wil-
liams that there was going to be an informational meet-
sion of organizing Williams Litho it was to the contrary at the time. He
denied that he told anyone that charges against him were dropped be-
cause of his agreement to organize Williams Litho though he on cross-
examination explained that he had heard hearsay talk from others at the
time that that was what the Union was going to do if he went out there
to the executive board meeting Be that as it may, I am convinced that
there was crosstalk in more material times by employees that the reason
he had gotten away with crossing the Union's picket line was that a
union petition would be coming later
784
WILL.IAMS LITHO SERVICE, INC.
ing at the union hall. According to Dostal, it was later
that same day that he spoke to Record about the meeting
out of curiosity.
Dostal mentioned to Record that Edelman had spoken
of the informational meeting and asked Record what it
was as he had not been to one before. According to
Dostal, Record explained that union officials would be
there and would go over the benefits of a union, pension
plan, etc., and would then ask each employee to sign a
card stating that the employee would like to have an
election at your shop. Dostal's recollection was to the
effect it was common knowledge that their hours were
different. However, Dostal did not recall Record's
making any mention that overtime was computed differ-
ently. Dostal recalled speaking to Record about Edel-
man's earlier statement that the guys did not want Dostal
to go; and Dostal testified that Record's reply was that
Dostal was free to come if he wished; that, "If they
don't want you to go that is their problem"; and that, if
Dostal felt he should go, to go.
Lohbeck testified credibly that on March 3 he asked
Dostal if he was going to go to the meeting and Dostal
replied he was not as his baby was sick. Dostal con-
firmed that he did not attend the union meeting of
March 3, asserting that he worked late, but also confirm-
ing that his wife had called him and asked him to come
home early because his daughter had come down with a
cold. In passing, I further note that Williams also testi-
fied without contradiction that employee Becki Sles-
singer had asked him if she could attend the union meet-
ing and that he had told her yes. There is no question on
this record that Williams knew about the Union's sched-
uled informational meeting of March 3 before it was
held. There is no evidence that Williams (or Ross or
Faust) took any action to interfere with it.
b. The union meeting of March 3
On March 3, the first (and only) union meeting at the
Union's hall was held at 6:30 p.m. Present were Union
Vice Presidents Charles Witt and Bob Kinamore. Em-
ployees present were strippers John Record, Wayne
Erting, Mark Edelman, Ed Lohbeck, and Greg Kirby
and cameramen Joe Tocco and Ron Goebel. Of the
seven employees present only three, Lohbeck, Goebel,
and Edelman, were not and had not previously been
members of the Union.
The meeting, which lasted about 2 hours, was held in
the Union's board room, with employees sitting around
one end of a large long table with Witt at the head.
After the employees had signed an attendance sheet
before Witt upon entering, there followed a lengthy dis-
cussion of various union matters. Toward the end of the
meeting Witt handed out single-purpose authorization
cards,'9 had employees read the cards, and told the em-
' The card in evidence pro' ides
At. I tORI/S I ION
I. Ihe undersigned. anll mplosee i if he Williams I itho, authori,e
Local 505 (iraphlcs Arts Inltrnational tUnion-- AFI -CI () to act fir
me as my collecllve- bargaining agent with m, employer on mailtters
respecting mr sage,. hours and olher terms and conditions of em-
plomenrl
ployees the cards authorized the Union to represent them
and/or to be their bargaining agent, and also (essentially)
that they would be used to petition for an election or a
vote. However, Record, Erting, Edelman, and Lohbeck
have all credibly testified that Witt did not say that the
cards' only purpose would be to be used for such an
election or a vote. Witt said that he liked Roger Wil-
liams and that, if they signed, they should stick by it;
they should not get the process going and then forget it.
Each of the employees in attendance, except Lohbeck,
thereupon individually signed a union authorization card.
After the employees had finished filling out the cards
and signing them, the cards were then handed back to
Witt, who announced that all of the employees there had
signed except Lohbeck. Lohbeck said that he would like
to think it over before he signed, and Lohbeck took a
blank authorization card home with him to possibly sign
later. According to Record and Edelman, Witt said that
he did not like to petition for an election unless they had
70 percent of the cards signed, and that there were not
enough people at this meeting to justify going on with an
election. Second shift employee Schaffner (also already a
member of the Union) was working and thus unable to
attend, but Schaffner had asked Record to pick up a card
for him. Record obtained additional cards, and he was
also instructed by Witt to pick up any cards that were
out and to bring them back to the hall.20 Accordingly, I
find that on March 3 strippers Record, Erting, Edelman,
and Kirby and cameramen Tocco and Goebel thus
signed valid authorization cards designating the Union as
their collective-bargaining representative in regard to
wages, hours, and other terms and conditions of employ-
ment. 21
c. Immediate post-union meeting discussions; the
petition filing
Dostal acknowledged that he had conversations with
Lohbeck, Edelman, and Record on Tuesday, March 4,
about the March 3 union meeting. The first conversation
'° The foregoing facts are based on testimony of employees Record,
Erting, Edelman, Lohbeck, Tocco, and Goebel, and Union Vice Presi-
dent ''ilt, to the extent found mutually consistent and credible.
" Authorization cards for each of the abrove-said employees are in evi-
dence, each of which on the back contains Witt's initials and the date of
March 3 placed there by Witt Although it is observed that Edelman's
card bears the date of "3-5-80." which date he entered, Edelman. as
clearly appears of record, was uncertain as to the correct date of the
meeting (as well as to other dates) However, Edelman, along with other
employees, signed the same attendance sheet of the only union meeting
held at the hall, which Wtt and all the other employees in attendance,
except Kirby, have mutually and convincingly testified was held on
March 3 Despite Will's inadvertent placement of the date of "2-3-80"
)on the attendance sheet, Witt's placed the date of "3-3-80" on the back
iof the cards All who testified have testified that Edelman was present at
the March 3 union meeting, and Erting has specifically testified that he
sas: Edelman sign the card Kirby. at the time an apprentice stripper, was
siibsequently discharged on April 23 As earlier noted, Kirby's discharge
is not the subject of any complaint allegation, and Kirby did not testify
herein However, other emploNees have confirmed Kirby's attendance as
well; and employee Goebel, who specifically recalled sitting next to
Kirby and handing him a pen to fill out a card, has testified credibly that
he sass Kirby sign the card As noted, Wilt had given Kirby a blank card
and had received hack a signed card. which Will thereupon dated and
initialed The weight of the elidence presiented is thus convincing that
Ihe carl s ere sigrnrled is Oulld nl ahos
785
DI)CISIONS ()F NA I I()NAI. LABO(R RELAT IONS BO()ARD
was with Lohbeck at 7:40 a.m. at Lohbeck's table.
Dostal asked Lohbeck if Lohbeck had ended up
going
last night. Lohbeck replied that he had gone; that
all
they (the employees) did was sit while they w re
told
about the Union; that they (the Union) did not ask
him
to sign anything, and they did not pressure him
about
signing anything; and that the only thing the Union
had
that he liked was the (portable) pension plan, which
pro-
vided that if he quit and went to another union shop
his
pension would follow him. Although unspecified
as to
time, Dostal recalled that the third conversation
he had
that day was with Edelman. Dostal related, without
sub-
sequent contradiction by Edelman, that, as he walked
by
Edelman's table, Edelman told Dostal that he had
gone
and listened to what the Union had to offer, and
that he
was going to make up his own mind.
Significantly, however, Edelman testified that on
March 4 he also went to Williams' office and told
Wil-
liams that ii his honest opinion there "was not anything
going to come from the meeting, that there was not
enough there to petition a vote." Edelman explained
that
he went in to tell Williams that because he realized
that
Williams could not ask about the meeting. Lohbeck
also
acknowledged that on March 4 he had told some people,
possibly Dostal and Edelman, that he was not persuaded
by Witt's presentment; and Lohbeck testified additionally
that he had no further conversation with Dostal
about
signing a card after March 3.
Dostal's other conversation was with Record at Re-
cord's table, though Dostal did not recall if he had ap-
proached Record. Dostal's version of that conversatio
n
is that Record indicated there was not enough interest in
the Union; that it was a very poor showing; that enough
people had not gone up there to show an interest
in or-
ganizing; and that the Union was not going to bother
w ith it; and also that Record said he did not feel at
the
time they w ould even bother with it"
22 Dostal acknowl-
edged that he knew that Record, Erting, Edelman, and
Lohbeck had planned on attending, and had attended.
the union meeting.
Record's version initially was that he inquired of
Dostal why Dostal did not show up, and that Dostal
re-
plied he did not think he wanted to sign a card. Record
replied that he did not think Dostal did either. (On
re-
I' D)Ostal htd iadditnal recollctti til that Rectr d
hai totld him on hlis
...c itatoI thltit it i.% bi had tinme ti) organite;
that Record had told ihcrll
perstonally thii lie did not feel that was
a goold tinle to organilze the shop
dulc i') tl, I'I.t tiC had conic oiff a 21- mcek strike, and
peiople '.crc nlt
t hal hot it h t e Union to 'ote for it at ihat
time, ais the strikc \is stil l
fresh it) thl Illil. id and thlat hie had s uggest ed the,
svait Illntil a latter date.
ishlich I)i'-lal (did nol putrsuc O) rebhuttal. Recrd
lnot orily denied he had
thClI toll l)Otial it k.as ia had ime lito orgiize hecai.
, o titse e recrtit
strike, tic hut 'tRect rd aklso delie ihe had Iold t)
oslal that there \i, is
poor shol ilng .or ilot etllughli iiteresI ai thle IteeClit
g I credil tIe tllrtile
denial iof Record hecaluse I a111t t:illvinced that
l)ostal hal, there cIit)teiCd
it mlsreeollictc d palrtial conllversitioi l tlhat as milre
pliobahl> related to
othier ctilnts ttie. vcr , as to the latter Record
dtllial illsolfar is skuilffi.li
ty of 1iterest. I liid )olstal's ersion is fair m ore plausible
otl tlhe vitiglt
1' thle CeidctiC, i11hiLdlig Dostid's otherisse comtpaihle s ersol.,
idel
rtllall', tleitlltim tiall 'A ill said it isould he a iaste
oif the lmplomIer anid
tIle I 111ios iltlTc it' there "its lot sufficieLi tilterest,
Record's ov,,n iidtlis
illis i ts Iilt kltils tig s.ihat tly s were going to do
andll thia;lt tie, 1ligit
akilt , ailldl IC Iltill, it ' o othr C0II LtlrrCti aeltlil
(}t otlltr CIlllip ,I ce, 1's-
'usei'd Hitrili I 1Ilolct. os, 1. Ilit RecIr d R I\ ;it til11 lilllt' e Itlllllillg o)llCe
t rllll ii llrd
buttal, Record additionally related that he on that occa-
sion jokingly told Dostal that he did not bother to
get
Dostal a union card because he did not think Dostal
wanted one, and Dostal replied, "no.") Dostal asked
what was going to happen; and Record told him that
he
did not know for sure, that the Union desired 70 percent
of the cards to start a campaign, that he did not know
what they were going to do, and that he heard they
might wait. However, Record denied that he actually
told Dostal there was not going to be any campaign or
that they were not going to try to organize the shop.
I
credit Record to the extent I find he did not make either
such statement, in haec verba. But that reasonable impres-
sion was left with Dostal that organizing might well be
interrupted for insufficient interest on the part of em-
ployees is clearly quite another matter.
23
Lohbeck testified that he signed his union card on
March 4 at home. When Record some time later inquired
of Lohbeck whether he had signed the card, Lohbeck
told Record that he had, but he was "not going to give it
to [him] yet." Lohbeck explained that he had held the
signed card because he had mixed emotions whether to
go ahead with what he felt he wanted against what
he
knew Williams' wishes were, it being Lohbeck's under-
standing at the time from prior talks with Williams that
Williams had no intention of becoming a union shop.
Lohbeck had not been receiving the premium rate.
In the interim on March 4 when second-shift employee
Schaffner arrived Record's version is that lie did not per-
sonally hand Schaffner a card but placed a (blank) union
card in Schaffner's coat pocket, told him about it, and
the next day (March 5) retrieved it from Record's tool-
box where Schaffner had placed it. (On rebuttal, Record
generally related that while he did not do anything
to
keep the Union secret he did tell the employees not to
say anything.) Schaffner confirmed that he put a signed
union card back in Record's toolbox, but otherwise relat-
ed that he was handed the card by Record shortly
after
3:30 p.m. when Schaffner started to work, that Record
told him the Union needed cards to obtain an election,
that he read the card as he was talking to Record, that
he then put the card in his pocket, that he filled it
out
and signed it later at 8 p.m., and that he then put it
in
Record's toolbox as he had said he would. In a prior
statement given during the investigation, Schaffner
had
stated he could not recall if Record said the only
pur-
pose of the card was to get an election. As noted,
Schaffner at the time was a dues-paying member
of
Local 505, and he read the card before signing it and
left
the filled out and signed card for Record's retrieval on
March 5. Lohbeck confirmed that he eventually turned
his signed card in to Record on March 5 or 6. 1 am thus
conviiced that by at least March 6 eight employees had
validly designated the Union as their collective-bargain-
ing representative in regard to wages, hours, and other
terms and conditions of employment.
" e' R.:cord's tsttlrl/oll adl it cll d TII IS inllltall, I 1II
rchuttal that I),otal
askcd C cxrsb ds i' the's signeCd ait crd ti nt s as ttll
t by enlplo>( es thit
lI es I did lit, \khh tii h I icc, red r i],,ls Ia is ti't
tilr trobltrated hb itrm
t'Ilt, i cIT'ri' t'c, 11s III1 citllt i
7 6
XVvtILIA,!5IS LIITHO SI> RVICF. INC77
However, in the interim on March 4 Williams con-
firmed that he had received a report from Edelman,
though at the lineup table in the stripping department,
that Williams did not have anything to worry about, and
that Edelman had also told Williams that Lohbeck had
told Edelman (essentially) that Witt's presentment at the
union meeting had not persuaded Lohbeck The report
to Edelman is conceded by Lohbeck as possible, and,
indeed, one I find probable.
Dostal testified that following his conversations with
Lohbeck, Edelman, and Record, though not based on
what Lohbeck and Edelman had said (thus based on
what Record had said), he told Williams on March 4 that
evidently there had not been enough interest in the
Union; that things evidently were cooling down as far as
organizing; and that, from what he heard, there was not
sufficient interest in the Union for them to pursue it any
further. Dostal otherwise testified the union activity had
been pretty hot prior to the union meeting, and that
there was a lot of conversation about the Union on
March 4, but not the rest of the week, though he contin-
ued to hear some overtones. He denied th heard any-
thing or saw anything thereafter in regard to card sign-
ing.
Williams essentially confirmed Dostal that on either
March 4 or 5 Dostal told him that he had heard Williams
had nothing to worry about, and that they did not have
sufficient people show up at the meeting Williams ac-
knowledged that he has known Witt for 10) years, and
that he knew Witt was an officer of the Local, but made
no attempt to contact Witt in the period March 3-7.
At noon on March 7, Record left the plant (a not un-
usual occurrence) and delivered the two additional au-
thorization cards of l ohbeck and Schaffner to two vice
presidents of the Union, Bob Kenamore and Jim Tim-
merman. Local 505 thereupon filed a petition on March
7 with Region 14, at approximately I p.m., with the
above 8 authorization cards thereupon date stamped in
ihe Regional Office in support of the petition filed, with
the unit therein claimed to constitute 15 employees. 2
The said petition also indicated in paragraph 7(a) in
regard to request for recognition the typed words "Peti-
tion constitutes request."
d. 1The illianms-employee meeting of Marrch 7
Williams testified that he held a general meeting of
employees on March 7 because the employees were not
getting much work done and because it was apparent to
Williams that there was some problems and he wanted to
get to the bottom of it. Williams also testified without
contradiction, and I find credibly, that prior to the strike
and ever since he had the Company and employees that
lhe had held regular monthly meetings in which he
would discuss how the Company was doing. and wheth-
er it was making or losing money, and in which he
would also discuss employee problems and prohblem solu-
tions. However. Williams acknowledged that there had
been no such employee meeting held since the strike
: Ill Pulsunig It Is, lnioled thaut Wilt testltlel t itat lie tnld I }icrs ge t11 hie
fell I ( iColge ;s .a s'upi rxs r d iscused it/riJ
began in August 1979 until March 7, 1980.21 The Em-
ployer does not contest, and, indeed, Williams essentially
did not even testify as to the substantive content of this
meeting. The testimony of Record, Erting, and Edelman
thereon is basically not disputed. The determination of
facts is thus one of interrelating the varied testimony of
employees Having considered such testimony, I am con-
vinced and I find that the meeting essentially transpired
as follows:
The meeting, announced by Faust on March 6, was
held in the afternoon of March 7, after work at 4:30
p.m.: and employees on all shifts were in attendance,
except for one secretary who covered the phones.26 Wil-
liams, Ross, and Faust were present; but Williams alone
presided.
I credit Erting's recollection that Williams started this
meeting by saying it was an open meeting, for anyone to
bring out any points they wished, and anytime anyone
wanted to interject anything into the conversation they
were free to do so. Record testified credibly that Wil-
liams said there had been a lot of little meetings and
things going on, and he knew there was some unrest; and
he wanted to get it all out in the open, find out what was
wrong, and see if they could settle the problem. (Record
acknowledged that Williams made no specific mention of
a union organizing campaign or in regard to a union peti-
tion.) Williams brought up the discharge of cameraman
Bud Rapp and explained what had happened from the
Company's point of view.27
Williams also discussed his open-door policy in the
sense that Williams stated that Ross was vice president in
charge of personnel, and that if the employees had any
problems they were welcome to go to Ross with those
problems to try to work them out. However, third-shift
scanner operator Rainey said that several employees did
not get along with Ross; and some of the other employ-
ees indicated their agreement that they were not getting
through to Ross with their problems, and that Ross was
less than understanding. With Ross interjecting at some
point that the employees could have a spokesman, Wil-
liams said that, if the employees were not satisfied with
what Ross would come up with as some kind of agree-
ment on what was wrong, the employees could always
, \Wilhlinams explained that . .hen the strike came in August they
'aopped the meetings because they stere so bhuss and because so many
people were there that did not need lo kno', the things that he slould
normall' (ll discuss ilt tile meetings
2 Fro)m the fact that prodiuctinll emnlplhoces from all three shifts sere
dil allentdince al the mleetig. I am consinced bh) rting's testimony that
the anillouncemncirl of the niceling iuas made on March 6 The ointl esi-
dencer as to innounncementl sas from Record that Faust had informed him
oIf the nmeetlilng
-' ,'hile Williams did no1 testlifs a, to \shat he said in the meeting,
W.illiams otlherste lestlfiedl that Rapp "vas fired in late February for pro-
dueilng hb:ld sirk lifter prior s irnmng Thus, Williams testified credibly
Ihat. mi the .eck prior io Ralpp's discharge. he had discussed Rapp's
v,,ork perlfrnminace ilh Fauslt anud ai great length itlh Ross; and that
hoth he aidlil R os .lnil' theill salrned Rapp Reos. howsever. did the
actual firilg otf HRapp ,is the first exermiue if his ners respponsibihits foir per-
stMrllle lli lnlr dild iino recI ll i I icorge also las ored the discharge. and
io cllcldelnte s.As .uff'lrd thtre) I riling also generallied there i5as "ant-
ro.sis or prohlems' ai lie ni c ll iig ite rellced there ,as a lot of discus-
sio l ah. itl pe p le ima.kingi i t inir ph l lone all, andt a.bout their for2et
till I it .llullih [i ltid ,'1i 111 ir I nC i llle',rds,
787
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
go to see Williams; and, if worse came to worse, they
could have some kind of an employee representative or
spokesman, but Williams did not call for an election of
one then, nor set a time or date for it.
2
During the conversation, Record brought up the sub-
ject of the Union's pension plan versus the Employer's
profit-sharing plan. Record said the Union's pension plan
had paid 7.5 percent that year. Williams replied that his
profit-sharing plan was up quite a bit compared with the
Union's plan, Record recalling it being stated as 11-14
percent that year. Erting inquired if there was a certain
percentage guaranteed to be paid in out of the profits.
Williams testified there was no guaranteed amount but it
had been better than other things. Erting also recalled
there was discussion of an employee quitting at a union
shop and moving to another shop and retaining his pen-
sion, whereas if he quit Williams he could not retain his
profit-sharing plan. Record's misunderstanding that the
Employer's profit-sharing plan had no waiting period
and had a 5-year vesting plan was corrected with
Record being informed it was a 10-year vesting plan
with I-year waiting period. There was also brief mention
of Erting's problem with the cost incurred under the
Employer's health and welfare (insurance) plan that he
would not have incurred under his prior union plan. The
record does not indicate Williams' response, if any.
In what was described by Record as being a major
matter of interest among employees there was discussion
about overtime payment. On this subject the testimony
was more consistent. Thus, Record testified that during
the discussion Williams said that he did not want any-
body to leave, he explained the difference between hours
and overtime provisions, and he then proposed two plans
that the employees could choose from. Plan A was the
Employer's existing plan with a 40-hour straight time
workweek and all hours thereafter, including Saturday
and Sunday, being at time and a half, but with certain
employees (journeymen) continuing to receive the premi-
um money; and plan B was a proposed 35-hour work-
week, with 7 hours at straight time and the next 2 hours
2" Most difficult in factual resolution has been the determination
of
what actually was said with regard to all employee representative I hatve
no doubt hat such a representative or spokesman was mentilonled I also
have no doubt that the concept was approved olf but not pressed hb WVil-
liams EIdelrnanl related simply that Williams did say that thes could de
velop it spokesman, though recalling Ross as having initiated it anid Wil
liams then furthering it W ith some inconsistency. Record initially related
that he did not think there was arny discussion of what would happen if
an individual did not feel he could talk to Williams or Ross.
only later to
relate that Williams said they could have an employee represenltatise
if
they felt that they did riot wiant to come to see him
individually. arid tor
Finally recall (I find more plausibly) that Williams had said.
if they (the
employees) were not satisfied with what Ross would come
up with as
some kind of agreemenlt on wl alt was rrtong, they
crould always go see
him (WVilliamnis) and. if worse came to worse, they could
have some kind
of an employee representative Erting's version was supportive
hut falter-
ing as to specific statements made Thus. Frting related
that Williams
suggested that the employees get together and elect
a spokesperson, or
whatever you want to call it. a steward of some sort to present
sugges-
titons or grieaillces or whatever the employees might
haive Howeecr ,
Erting clearly hedged in relating that Williams said ihe
wanted emplosees
to get together anld elect a spokesman, or whatever
you wrant to call hint.
a steward, in also testifying that Williams said he
woiuld like the employ-
ees Ito if they ,kalnted lo; and trtilrg acklkno ledged also
that WVilliamns did
not call for art election of air emplosee representati.ve
or spokesman then,
nor set a time tir date for an stuch
action
at time and a half on a workday and all thereafter at
double time, including Saturdays and Sundays, which
was essentially the union plan as it existed for several
years under their contract. However, there would then
also be a reduction of the premium rate to 65 cents. A
vote was then taken by secret ballot, which was 10 to 6
in favor of the 35-hour workweek. Erting essentially cor-
roborated Record, except that he, at least initially, would
place this discussion and vote as occurring (generally)
after the open meeting remarks. It was also stipulated by
the parties that if additional employees testified thereto
they would testify that at the employer-employee meet-
ing of March 7, after a vote was taken, Williams an-
nounced the results of the vote would be made effective
Monday, March 10, 1980-in short the 35-hour work-
week was put into effect on March 10.
e. The Erting- Williams meeting of March 10
Erting and Record left the meeting of March 7 before
it was completed because they had to attend a bowling
game, but clearly only after the new 35-hour workweek
had been voted in. On Monday morning Erting (and
some others) had misgivings about the latter program
and discussed with other employees the possibilities of
seeking an alternative from Williams that would include
a 40-hour workweek and double time. While Erting was
not elected employee spokesman for that purpose, Edel-
man related that the employees had generally agreed that
anyone who wanted to be same should have it. There is
some dispute between Erting and Williams as to what
occurred.
Erting's version is that on Monday at 9 a.m. Erting
went in to talk to Williams about the new 35-hour work-
week with the 35-cent reduction in premium. Erting had
a 45-minute conversation with Williams alone. Erting
began by telling Williams that after talking to the em-
ployees he felt like everybody preferred something kind
of in between the two options, and that many employees
wanted an opportunity to reconsider their decision to go
to a 35-hour workweek. Erting related that he made sug-
gestions of two alternative plans, both involving a 40-
hour workweek at straight time, and one with time and a
half for the next 2 hours beyond that and double time
thereafter, and the other with time and a half for one-
half of the day on Saturday and double time thereafter.
Erting recalled that Williams said, "Why didn't you
bring this up on Friday, why wait until now with these
suggestions?" Erting replied that the people were kind of
afraid and unsure, and that they did not know what to
say. He has Williams saying, "Well, why don't you find
out for sure from the people"; and, "Find out for sure
what the other employees felt." Thus, according to
Erting, he did not suggest having a meeting with em-
ployees, Williams did; and Williams suggested that they
get together and talk about the alternatives that could be
worked out. Williams told Erting that Erting could have
the meeting of employees on company property after
pwortking hours.
Williams confirmed that Erting met with him on
Monday morning in regard to the new 35-hour work-
week. Williams' version, however, was that Erting said
788
WII L IAMS lIt Hfo SE'RVICE INC
he was not happy with the 35-hour system and that he
had mentioned (only) a 40-hour workweek with the first
2 hours after 8 hours and the first half day on Saturdav
at time and a half and double time thereafter. Williams
confirmed that he asked Ertring why in the world he had
not brought this idea up in the meeting the prior Friday,
as he had given them the opportunity to talk about any-
thing they wanted. Williams acknowledged that he told
Erting he liked the idea and that. had Erting brought it
up at the time, it probably would have been what they
would then be doing.
According to Williams, Erting asked Williams if he
minded if Erting got the employees together to see what
they thought about it. Williams said that he did not
know if they would go for it because they just voted this
other thing in 10 to 6; but that he did not mind if Erting
got the employees together to see if they would be re-
ceptive to the idea, but it had to be done after work and
after employees clocked out. Williams testified, I find
credibly, that he did not become aware that a petition
was filed until noon on March 10. Williams at that point
contacted his lawyer (not counsel of record), who told
him it would be best not to change anything that was
done. Erting acknowledged that he already knew that
Monday that the Union was going to file a petition be-
cause he had been told so by Record on Friday. He also
acknowledged that he had spoken to Record earlier
about his intention to go in to speak to Williams about
the workweek and overtime pay. Erting contacted ev-
eryone on Monday about having a meeting at 3:30
p.m.,29 the following day, to discuss the matter.
On Tuesday, March 11, Erting (alone) again went in
to Williams' office to tell Williams that the meeting was
set up. On that occasion Williams told Erting that they
were under a petition from the Union on the Labor
Board to have an election to get representation. Williams
told Erting that Erting could go ahead and have the
meeting, but that Williams did not know at that time
what could be done, or changed; he was not sure that
anything could be done, and he said, "I don't think there
can be." Williams told Erting not to turn the employee
meeting into any kind of union rousing event or to use it
to boost the Union. Erting related that Williams "damn
near had him convinced," and that Erting himself may
have also said he really did not think anything could be
done either.
A meeting of employees after work hours was con-
ducted to discuss alternatives to the recently instituted
35-hour workweek. Basically, the discussions covered re-
tention of the 40-hour workweek, but to work double
time in somehow. According to Erting, all but two em-
ployees preferred the 40-hour workweek and even those
two said they would go along with the others to make it
unanimous. Although there were only seven in attend-
ance, others (according to Erting) had made their feel-
ings known through relay of their position by someone
present. Erting identified those actually present as being
himself, Record, Slessinger, Lohbeck, and Edelman, plus
2' With the 35-hour workweek effectise. the workday nogs ended at
3:30 p.m Although Williams would place Ihe meeting as held on
Wednesday, I credit Erting that it was held on TIuesdaN
others listening. (Erting acknowledged that one of those
also listening was George.)
On the following morning (I find). March 12, Erting
again met with Williams alone in the latter's office.
Erting reported that 99 percent of the employees pre-
ferred the 40-hour workweek with double time in it
some way, adding, however, that he could not be sure of
everyone because it was information which came to him
through other people: hut that he could pretty much
guarantee that was the way they felt, and that they could
have a very quick vote and find out if the people pre-
ferred the 40 hours. Erting related that they again dis-
cussed being under the petition, and that Williams said
that he felt there was not really a lot that he could do
about it at the time. According to Erting, there was dis-
cussion about the possibility of the Union coming in.
Williams had a copy of the old union contract. Some-
what led, Erting related that they talked about the pen-
sion and health and welfare provisions and that Erting
stated, no matter which way the vote went, they all at
Williams Litho had to work together; and that there
were a lot of things in the contract that he did not like,
one for sure being the 35-hour workweek, as he pre-
ferred a 40-hour workweek and felt it would be better
for everyone. However, Erting, somewhat inconsistently,
also said that, no matter which way the vote went, if
they could keep the contract in their shop they would be
better off as he felt the benefits were better. Erting testi-
fied that the last thing that Erting remembered in the
conversation was that Williams said he could not do any-
thing about the 40-hour workweek plan, but that he was
receptive to the suggested plan: and would be receptive,
unless things went the other wa'y; with Erting assuming
Williams meant the Union.30
Williams' version of their meeting (and other than the
date of same) was that he knew that Erting had held a
meeting and that only five employees had attended, since
he had been downstairs on business during the period of
the meeting. Williams related that Erting reported that
the people who attended were receptive. However, Wil-
liams replied that he did not feel enough employees had
attended, and that he told Erting that having been served
with the petition he felt there was very little he could do
about it. Williams categorically denied that he ever told
Erring that he might not befavorably inclined to change the
hours of overtime if the Union got in, and affirmatively
testified that he has said nothing similar, ever.
Called as Respondent's witness, Edelman confirmed
that he was present at the meeting; that the purpose of
the meeting of the employees was that they wanted to
change and go back to 40 hours, and to come up with a
" Erting related that man5 bindery units ha'e 37 5- or 40-hour work-
weeks. hut ha ti he va (personally) aware of no other litho contract that
did not ha'e a 15-hour vorkweek Witil estified that the contract that
vould he applicabhle to a litho shop like Williams Litho would call for a
35-hour v, rkweek hbut that there are litho shops that have a 40-hour
ork eek sre 'l relaited that the Internional snal i. ndard 35-hour v. rk-
veek is .pphiahlic inh 71 percent of the shops in the I S A hut that an-
other emplo er in he area, Commercial I itho, ha. it 40-hour vorkweek
under ai first litrIat tlo se,.er. Wiitt crnceeded that, Ihough a trade
shop. Cormmercial I itho ira not like Willamn I.ttho. and furth-r ad
nitted Ihat the Interiil.lrtial gould put pressure In local 505 if a Tihop
hid ai 44)-hour s ork' .eek for all extended period I
I)tX ISIO()NS ()1: NAII()NAI I.AI3()R RKlilI I)NS B()ARD)
plan that would accommodate everyone, and that his
recollection was that all the employees waited double
time but with 40 hours as follows: Straight time for the
first 8 hours, time and a half for the 9th and 10th hours
in the day, and double time for hours thereafter and on
Saturday and Sunday. However, according to Edelnian,
and significantly so. it really never got off the ground
that well because there were not enough employees who
showed up at the meeting, and it was kind of discourag-
ing.
Lohbeck's recollection was that there was ai meeting
after March 7 in regard to the 40-hour workweek time
and a half for the 9th and 10th hours, and double time
thereafter (but he also could recall no discussion in
regard to a plan for double time after 4 hours on Satur-
day). Even more significantly, Lohbeck related that
Erting reported back to him after talking to Williams
(only) that Williams seemed favorable to the idea but he
could not do anything right then. Under all the above cir-
cumstances, I credit Williams, whom in many respects I
have found to be a credible witness (also on this matter),
that he did not tell Erting that he might not be favorably
inclined to change the hours if the Union got in. Rather,
I conclude and find, what the credible evidence would
support is that what Erring has recalled was not what
Williams said, but, at best, was a recollection of Ertirg's
own subjective impression of a likely result.
f. The Williams-employee meeting of VMarch 17
Preliminarily, it may be observed that about 2 weeks
prior thereto Williams received an initial report that a
nail had been placed under the tire of Becki Slessinger's
car. Record related that after the union meeting of
March 3 Slessinger had made inquiries of him about it on
March 4. The record otherwise reveals that Slessinger
did not subsequently sign a union authorization card.
Though not clear when, Witt testified that Record re-
ported back to him that Slessinger did not want any part
of the Union. The record also reveals that there was a
work dispute between Slessinger and 1Tocco on March
14. On the same day Slessinger's car received a long
scratch along the back trunk lid while it was parked on
Employer's unsecured back lot. On March 17, Williams
called a second meeting of employees, which he de-
scribed as very short.
Record testified that Williams was upset. Williams in-
formed the employees that there had been some vandal-
ism done on the car of an employee, 3' and he wanted it
to cease; and that he wanted to know who did it, and if
anyone had any information they were to let him know.
Record initially testified that Williams said there would
not be any passing out of union literature or meetings of
two or three discussing union business on company
premises or company time. Record's32 recollection subse-
quently was that Williams said there would be no more
vandalism or harassment of any kind to the employees;
there would be no more gathering in small groups talk-
:" Slessinger ,',as all apprellntice dot etcher a positilon Re. ird olnccdcd
was dirficult ti find (or to fill)
R2 ecord candidly ackno'0ledged Ihal ilmmcdiatcl prior to Mlarch 17
employees were standing a;rourld ,llkkig during Clork hours (in irites
shown to be durinrg acrtual Aorklimne)
ing about union business: arid there would be no passing
out of union literature or discussion of the Union on
company time or property. Erting essentially confirmed
that Williams told the employees that there would be no
vandalism or harassment of fellow employees, and that
"'[there shall be no handing out of union literature, or
standing around talking in small groups about the Union
on Company time and premises." Edelman's final version
was more corroborativ e of Record in relating that Wil-
liams said there will be no campaigning union literature
on comparny time or property.
Williams related that in the week prior to March 17 he
had observed a lot of people standing around talking
when they were supposed to be working and he had
overheard some of them talking about the Union. On
March 14 a second vandalism incident occurred in which
a long scratch appeared on the back of Slessinger's car.
On March 17 (a Monday) Williams called all of the em-
ployees together. He related it was a very short meeting.
Williams asked if anyone had any knowledge of who
was doing the act of vandalism, and no one said any-
thing. Williams told the employees. "Let everyone here
understand that if I catch anyone vandalizing anything
here that I am going to fire them on the spot." He also
said, "What's more, if I catch anyone standing around in
groups and discussing union business on Company time,
I am going to fire them. If I see anyone distributing
union literature on Company time, I am going to fire
them." Williams explained that he felt like he had to get
the shop back in working order; he ended with "that is
all," arid he left without discussion. In this matter, being
convinced that Williams was upset by the reported van-
dalism., I credit Record, Erting, and Edelman, whose tes-
timony was sufficiently consistent and corroborative
enough to warrant the finding now made that Williams
did tell his employees essentially that there would be no
more gathering in small groups talking about union busi-
ness, that there would be no passing out of union litera-
ture on company time or property; and that if employees
\were caught or seen doing so they would be fired.":
g. Other evidence
The General Counsel established that, although not
signing authorization cards, Ralph George, Allen
Meschke, and David "Mel" Rainey during material times
were current dues-paying members of Local 505; and in
that connection introduced the International's constitu-
tion and bylaws, and the bylaws of Local 505, in regard
to obligations placed on an individual by union member-
ship. The Employer contraestablished that initiation fees
and/or assessments were not discussed with employees in
the meeting of March 3, and that there are certain bene-
fits to retaining union membership; viz, a mortuary fund
benefit, use of the union-operated referral hall, and notifi-
cation of job opportunities.
I' 1icy, f Rcrtl' c;itcgE(riR l denlial (I hiIch I tredilt} Ihal Willanmt
cecr 1,old hitmr it .la, 1 ill ight Ito lk ahoti t llth I'fl ion as long as ie slatscd
and ilt rkud ,ll the table. rmid iiI lCs "I \i w lilisI ' on.11 n idrilisT11 111i IIl
rcg.ird to dischilrge ilitn1clllss up. t do n111 redit Itdelt.man',, addiiion-
al r:,t.ile 1iOls oti til uhs c S1 tltls Io iec xtlelt e1y suiggci 1inwatii Onllii vils
1l1adc. f tilt' hI.1lietlT11'1t JtloInd ibh .%t
790
791
In evidence also is the Impiployer's preelection material
consisting of a letter to indis idual employees dated
March 29. a (written) speech read to employees on April
17" with a copy thereafter provided to them, and a final
letter dated April 25. The latter letter in part urged upon
employees:
2 Last year. the Union tried to cripple our busi-
ness by insisting that Union printers around the citD
not give us their work What happened' The Union
printers fought to retain their right to send us their
work. They resisted the Union threats and, in the
recent contract negotiations, they rewrote their con-
tract provisions relating to Trade Practices (subcon-
tracting) in such a way that they could be assured
of their right to continue doing business with us.
This was one of the major issues in the city-wide
strike
Record did not solicit a card from Rainey, who
worked on the third shift, but Witt did solicit his support
prior to the election, as he did with respect to Meschke,
but not with respect to George, whom Witt felt to be a
supervisor.
C. Analysis. Conclu.' on.r , and FIindings
Roger Williams alone in personal interviews has here-
tofore hired all permanent employees for the Employer.
Williams has during material times shared the authority
to fire with Ross and Faust and recently he has granted
broad personnel authority to Ross. However, Williams
has thus far retained personal involvement even with dis-
charge action performed by Ross. and Faust has not
even sought to exercise any such authority by himself at
all. Similarly, while Williams has had Faust handle cor-
rections of employees involving minor matters of disci-
pline, Williams, vis-a-vis Faust, has handled the very seri-
ous matters himself. In that background there is addition-
ally no evidence that Dostal, George, or Meschke has
ever been granted, or has ever exercised, authority to in-
dependently hire, fire, or discipline any employee. " The
General Counsel has sought to rely on George's involve-
ment in the hire of Tocco, and Dostal's immediate em-
ployment of Schaffner, presumably that if not actual
hire, contending that such reveals supervisory authority
to effectively recommend hire. In my view neither inci-
dent is sufficient for the General Counsel to prevail.
The underlying circumstance in the employment of
Tocco, that George was instrumental in arranging
Tocco's interview for employment, is no more disposi-
tive of the supervisory status of George than Erting's
status is similarly to be deemed affected by the latter's
involvement in the initial hire of Record, and more
pointedly in the subsequent employment of Schaffner.
3' Record ha, tesified that Wlihams' proscriptions on March 17 ill
regard it) discusslng Ullltil nllatlers and distributirlg union literatulre ot
company premises sere rIead s.thlch W lllanims hais detied t:rling :or
roborated Record that Williams had ain idex card ',ith ;1 le
x
notes otn it
I credit Record and Erling that W'ilhams did ha\e notes ont n Ian dex c ,rd
at the time he made thie sialenenls to enmploeers ,I March 17. Ihough I
am not con tIlned that W'illallms rtead; crhatlim his tnlliiullmlt. n ts
Neither hase tihe beell granirted, or cerlstd, the aulthorits to trans-
fer, suspend, priomote. lay off. re
1
all re s rard. or tadjust the grtie, cnte I'
any roplste llor tO effce, tls 'l reottmn llesld ills steAl aclilon
Moreover, George's inquiry of Tocco was made after a
specific inquiry and request was made of him by Wil-
liams. Nor is George's involvement with Tocco's em-
ployment distinguishable by virtue of George's having
also prior thereto extended to Williams his own judg-
ment and/or evaluation as to Tocco's craftsmanship.3 6 In
regard to the (part-time) employment of Schaffner, given
the attendant conditions and credited existing employer
needs, and in light of the plausibility of a general policy
of the Employer of employment of anyone reporting at
the time, in my view Schaffner's immediate placement at
work under such circumstances simply does not consti-
tute grounds to conclude that supervisory status on the
part of Dostal existed. It is clear that authorization for
overtime on a job comes solely from Williams or Ross,
and that neither Dostal nor George has ever required
employees to work overtime; nor have they been shown
to have been granted that authority, heretofore shown
exercised and determined on this record only by Wil-
liams, Ross, and Faust. Dostal has never refused a vaca-
tion (day off) request. The resolution of the nub of the
supervisory leadman controversy, it would then appear,
must rest in the analysis of the nature of the involvement
of Dostal, George, and Meschke in the assignment of
work, and in the nature of their day-to-day direction of
other employees; i.e., whether they do so responsibly
and with a required use of independent judgment. How-
ever, that authority to responsibly direct other employ-
ees must be one which flows from management and
tends to identify or associate the worker with manage-
ment, and is to be distinguished from routine direction
though from one possessing superior artisan skill, and/or
experience, and whose craftsman judgment is harnessed
in production procedures of the shop and in that sense
relied upon by the Employer. In that sense Dostal,
George, and Meschke have each been shown herein to
be a true craftsman with possession of special skills and
experience in the graphic arts trade generally, and in the
Employer's business operations specifically.
The Employer's business and operative procedures in-
sofar as they involve stripper, scanner, camera, and relat-
ed skills \were much litigated, their interrelations substan-
tially set forth above, and need not be repeated, The sa-
lient features emerging from the above, however, are
that the Employer operates a small, highly integrated
shop; and that this Employer provides a craft service
product to other employers who are themselves in, or
knowledgeable in, the trade. The desired product in
large measure is definitively ordered by such customers,
has a set short-term delivery date, is generally the sub-
ject of detailed instructions by the Employer, and is fi-
nally reviewed for acceptable quality by one or more
levels of admitted management, and frequently by Wil-
liams. The production schedule is daily controlled and
updated by Faust.
The Employer's final product, the color separation
negatives, is produced by artisans who possess variable
levels of knowledge, skill, and experience in the trade
and in the Employer's business. However, such assign-
"' Cf Slruthern i/eachel r arnd i'rlnt 4r rka. In.. 115 NLRH 787 74t)
7?92 I'Shl, trnl 257 1 2d1 215 (4th I. ir 1]Sq )
\%,II I IA 'NIS I II H( SERVICE- IN(
DI)ECISIONS () NA'II()NA. I.ABO()R RELATIONS BOARD
ments as are made by Dostal are essentially routine in
nature as being in accordance with an established pro-
duction schedule absent other (and unusual) instruction
of specific assignment to be made by admitted manage-
ment. Indeed, assignment of scanner/camera work is es-
sentially automatic by the nature of the product ordered,
and is otherwise the same in accordance with the pro-
duction schedule controlled and updated by Faust. Such
suggestion and directions as to the way work is to be
done are either in accordance with the way admitted
management has instructed, or are clearly the case of the
more senior and/or experienced, skilled craftsman sug-
gesting how best to approach or to do a particular job.
Though much litigated, the issue need not be belabored.
I am convinced that such authority that Dostal, George,
and Meschke have flows from their senior, experienced,
craft position, and not with managerial power as the
source. Accordingly, I am convinced, and I find, that
stripper Jim Dostal and scanner operators Ralph George
and Allen Meschke are not statutory supervisors, but
occupy positions of senior, experienced, craft, lead per-
sonnel.37 The additional circumstance that Meschke was
recently given a supervisory title does not require a con-
trary conclusion in the absence of demonstrated statutory
supervisory power possession, or exercise.,"
Williams was aware that certain of his employees had
attended the Union's informational meeting on March 3;
and it is uncontested that, in the Employer's subsequent
March 7 meeting, Williams allowed all his assembled
production and maintenance employees to choose be-
tween a new workweek and overtime payment plan,
which (I find) essentially is, and had been for years, the
Union's established terms for a workweek and overtime
payment schedule under successive union contracts, or to
elect to retain their existing workweek and overtime pay-
ment plan. The choice as proposed by Williams and then
voted on by his employees was between the new plan
calling for a 35-hour workweek, with overtime based on
payment of time and a half for the first 2 hours over 7
hours on a weekday and with double time paid for hours
worked thereafter and on Saturday and Sunday, and the
Employer's existing 40-hour workweek, with time and a
half payment for all hours worked over 40 hours, though
with the 35-cent-an-hour premium paid (journeymen)
employees in lieu of paying double time. After the em-
ployees voted (10 to 6) in favor of the new workweek
and overtime payment schedule, the Employer then an-
nounced to the employees that the selected new plan
would be made immediately effective. I find that the
new workweek and overtime payment plan schedule ac-
tually commenced the following Monday.
aT Print-O-Star. Inc., 247 NLRB 272 (1980). Robin Amerrian Corpora-
tion. 245 NLRB 822 (1979); and Southern Bleacherr and Print Works. Inc.
supra. See also Kendick Engineering. Inc., 244 NLRB 989 (1979);. Airka-
man. Incorporated. 230 NLRB 924 (1977)
Cases relied upon by the General Counsel, Apple Tree Chevrolet. Inc.,
237 NLRB 867, 876 (1978); Silvercup Bakers, a Division of Ranger Bakers.
Inc., 222 NLRB 828, 829 (1976). and Murray Equipment Company, Inc,
226 NLRB 1092 (1976). are deemed readily distinguishable. or inapposite,
on their facts
B Cf. Maine Yankee .4tomni Porer Co., 239 NLRB 1216, 1218 (1979):
Trailback. Inc., 221 NLRt 527, 529 (1975).
Accordingly, I conclude and find that on March 7, on
the same day that the Union filed its petition, Respond-
ent granted increased benefits and improved terms and
conditions of employment to all its employees, which
were then put into effect on Monday, March 10. The
issue remains whether under the attendant circumstances
the Employer has done so unlawfully, as the General
Counsel contends, or lawfully, as Respondent urges. The
lawfulness of the implementation, whether deemed im-
plemented with the announcement on March 7 or with
the commencement on March 10, as well as the merit of
any related objection or objections, would appear to be
controlled by the resolution of the issue of the legality of
the initial grant and announcement.39
On the basis of the above circumstances the General
Counsel argues directly therefrom that Williams engaged
in the above conduct in order to discourage the recent
union activity of employees in violation of Section
8(a)(1) of the Act. It is independently alleged and con-
tended that in the same meeting Williams solicited em-
ployee complaints and grievances and (thereby) promised
employees increased benefits and improved terms and
conditions of employment in violation of Section 8(a)(l).
In regard to the latter allegation, the General Counsel
would appear to rely on (a) Williams' statement to the
employees that, if they had any problems, the employees
should resolve them with Ross; and (b) that, when em-
ployees voiced concern over prior difficulties which they
had with Ross, Williams then suggested they bring prob-
lems directly to him, or elect an employee representative
to present the problem to Ross or to him. (The sugges-
tion of an employee representative or spokesman was not
the subject of an independent complaint allegation.) The
General Counsel has further argued that the subsequent
dealings of Williams with employee Erting constituted
related attempts on the part of Respondent to remedy
employee grievances through an employee representative
(also not the subject of an independent complaint allega-
tion).
Respondent essentially has not disputed the facts con-
cerning the employees' accounts of the conduct of Wil-
liams at the meeting of March 7. Rather, Respondent de-
fends that Williams engaged in such conduct in pursuit
of lawful business concerns and objectives; and contends
that the General Counsel has not established in that
regard that Williams engaged in such conduct with an
unlawful purpose. Thus, Respondent argues that it has
adequately shown that the meeting of employees was
called in accordance with a prior practice of holding em-
ployee meetings which had been regular but was inter-
rupted by the strike (and its immediate aftermath) be-
cause of the resulting hectic and unusual employment
conditions. With regard to the allegation that Williams
engaged in solicitation of grievances and made related
promises, Respondent contends (and I find) that Williams
for years has had a prior existing "open door" policy of
which employees were individually informed at the time
of hire, and which extended an open invitation to em-
ployees to freely discuss their problems and solutions di-
3Y Cf W'est lexa Equipment Company, 142 NLRB 1358, 1360 (1963);
Sigo (orporation, 146 NLRH 1484, 1487 (1964).
7q2
WILLIAMS LITHO SERVICE, INC.
rectly with him; and (I further find) that Williams also
had discussed employee problems and problem solutions
at periodic all-employee meetings that were held regular-
ly prior to the strike. Respondent contends that the in-
stant meeting of March 7 was called at that time because
Williams knew he had production problems at the time,
as well as some employee unrest over the appointment of
Ross and particularly in regard to the discharge of Rapp.
Thus, at the meeting, Williams explained the Company's
position on Rapp's discharge, viz, that it was for poor
work, and that the discharge had been accomplished
after a prior, proper warning; and, in reconfirming the
appointment of Ross and the latter's responsibilities for
personnel matters, Williams made it clear that his "open
door" policy for employees extended to Ross, as well as
to Williams. While conceding that there was mention of
an employee representative, Respondent argues that the
facts show the reference originated with Ross and spon-
taneously followed expressions of employees of having
had difficulties in employee relations with Ross. Con-
trary to the General Counsel's view of that remark, Re-
spondent argues the evidence shows that, though Wil-
liams then also made reference to an employee repre-
sentative, if the employees wanted one, it was a com-
ment not only spontaneously prompted by that develop-
ment, but more importantly it was not accompanied by
any special urging by Williams, and thereafter it died just
as quickly as it had appeared. Respondent would have it
noted that it is uncontested that, in the meeting, Williams
discussed other clear (solely) production matters, remind-
ing employees of the Company's rules limiting their
phone calls, and requiring the employees to punch in and
out which enployees had been forgetting to do. Re-
spondent would have it noted as well that it was not the
Employer, but the employees, who had initiated the dis-
cussions of certain employer fringe benefits, and sought
comparisons with similar union benefit provisions; e.g., in
regard to union pension and health and welfare provi-
sions vis-a-vis the Employer's profit-sharing plan and in-
surance coverage. (The profit-sharing plan was itself a
subject matter of a recent employee newsletter which
had related that the figures on the employees' shares
would be in about the end of February.) The record re-
veals there were no promises made thereon, but rather
explanations of existing benefits made to primarily new
employees.
I find that there is considerable evidentiary merit,
indeed I find myself persuaded thereby, to much of the
above position of Respondent. While I have had some
reservations in regard to Williams' even momentary em-
bracement of the suggestion of an employee representa-
tive, I am convinced it originated with Ross and was by
Williams an aside comment, accounting for divergent
recollections. While Williams on this (one) occasion
nonetheless picked it up, I find on the basis of the evi-
dence considered as a whole that Williams did not press
it then, nor actively pursue it later. Erting's subsequent
discussions with Williams were (I find) not prefaced to
Williams by any claim by Erting of being an elected em-
ployee representative. Nor did Williams recognize Erting
as such, but rather clearly viewed him as but a single
employee whom Williams promptly criticized because
Erting theretofore had had the opportunity to speak to
the subject of mutual concern (discussed infra) and he
had not availed himself of the opportunity at the time.
What quite clearly emerges from those later discussions
was that Williams repeatedly told Erting, to the point of
convincing Erting, that, with the intervening filing of the
Union's petition, there was simply nothing that Williams
could do about any employee-desired further changes in
the work schedule and overtime payment plan however
receptive Williams might have been to such a suggestion,
if earlier made. I am convinced that it was Erting who
requested the opportunity to discuss that matter further
with employees and that Williams agreed prior to notice
of the petition filing, and provided it was done by em-
ployees on their own time. I am not convinced, and do
not find, that thereby Williams was "dealing" with
Erting, a known union advocate, as an earlier suggested
employee representative. As Williams clearly did have a
prior "open door" policy, including a prior practice of
meeting with employees, which was shown to have been
reasonably interrupted by the strike, and its aftermath,
and as certain legitimate, independent business reasons
are shown to have arisen sufficient to warrant Williams'
return to the practice of holding such a meeting at that
time, I shall recommend that the complaint allegation
that Williams solicited grievances and promised (related)
benefits be dismissed as lacking in merit. However, there
remains for consideration the independent complaint alle-
gation that in the same meeting Respondent granted in-
creased benefits and improved terms and conditions of
employment on condition that employees withdrew sup-
port from the Union.
Respondent accurately asserts that it competes as an
open shop in a predominantly unionized industry, one
that requires highly skilled crafts people. Respondent
argues that it consequently has heretofore offered union
scale wages and benefits, or more, to attract skilled em-
ployees, though it also acknowledges that heretofore it
had deviated from the Union's contract provisions in
regard to the workweek and overtime schedule. Re-
spondent would rely on certain business conditions; viz,
that its business had mushroomed with the strike, and
that resultingly there was considerable work, including
the need for overtime generated during the strike, for
several months, though the record reveals overtime was
leveling off at this time or shortly thereafter. As earlier
noted, Respondent has also acknowledged that it knew it
had some employee unrest; and it is Respondent's posi-
tion that Williams was also concerned that some of his
skilled and competent people would leave his employ.
The record reveals that Williams did tell the employees
in the March 7 meeting that he did not want anyone to
leave. Williams indicated to the employees that he pre-
ferred a 40-hour workweek plan, but then permitted all
employees to choose between two plans, either essential-
ly the Union's plan (as I have found) or to retain the cur-
rent plan which he preferred. Respondent denies it did
so to lure employees away from the Union. In the latter
regard, the Employer would rely heavily on its conten-
tions that Williams had no knowledge at the time of the
meeting that a petition was being filed that very day by
793
DECISIONS OF NA IONAL LABOR RELATIONS BOARD
the Union and did not learn of the actual petition filing
until noon on March 10. Indeed, Respondent argues that
Williams had no knowledge that there was even an on-
going union campaign, but to the contrary had been left
with a distinct and (it argues) an apparently deliberately
conveyed impression that the union campaign had ended
on the evening of March 3 due to a lack of interest on
the part of employees through certain reports of employ-
ees brought to Williams which informed Williams that he
had "nothing to worry about." I do not find these argu-
ments of Respondent persuasive.
The fact clearly is that for years, despite awareness of
the Union's different workweek and overtime payment
plan, Williams had operated his business on his own 40-
hour workweek and overtime schedule. The newly hired
(union) employees had sought and accepted permanent
employment with the Employer knowing full well of
those existing terms and conditions of employment. The
employees had recently indicated displeasure over what
they perceived was an unfair discharge of Rapp, and had
exhibited discontent with Ross on certain problemsome
matters, and Williams addressed those matters. However,
I also have no doubt that some employees had significant
concern at the time about the amount of overtime that
they were working, and the pay that they were receiving
therefor, and I credit Record that it was a matter of
major interest at the time. However, there is no evidence
in this record that any employee had indicated thereto-
fore an intent to leave Williams Litho on that account.
There was no hint of such shoiwn in Dostal's or Edel-
man's report to Williams. The Union had not in any
sense served formal notice on the Employer that it had
lost interest in organizing Respondent's employees, or
that its organizing campaign would be held in abeyance,
and Williams did not inquire of Witt though he had
known Witt for 10 years. Moreover, the reports of
Dostal and Edelman about the status of the employees'
organizational efforts did not operate to suspend the pro-
tection of the statute afforded to union organizational ef-
forts of employees, indeed particularly at a time of initi-
ation of such efforts, when most vulnerable to employer
interference. I am further fully convinced that the mes-
sage given Dostal by Record, a staunch union advocate,
was not the notice of surrender of the Union's organiza-
tional efforts that Dostal sought to portray, but what wa as
imparted to Dostal by Record, for whatever reason, w \as
that they might have to wait for further organizational
development before petitioning. In contrast, the reports
to Williams from Dostal and Edelman were from tw o
former nonunion employees, only one of which had at-
tended the meeting and signed a union card, the other
having declined interest in the Union at the time. Thus, I
rather conclude and find that Williams could not reason-
ably rely on their reports as the last word, and further-
more reasonably did have something still to worry about,
that very possible development which turned out to be
the actual case sooner than perhaps he imagined; v2z, that
the initial organizational efforts would be likely to be
continued by strong union advocates such as Record.
The point need not be belabored for, even if Williams
simply miscalculated as to employee interests, hiis coin-
duct in this aspect w ould tend to interfere , ith employ-
ees' Section 7 rights. Cf. .4rerican Freightways Co., Inc.,
124 NLRH 146 (1959). The lack of convincing business
justification only the more effectively convinces that Re-
spondent's proffer at this juncture of a choice to its em-
ployees of their adoption of essentially the Union's 35-
hour workweek and overtime schedule with certain
double time provisions over the Employer's preferred ex-
isting plan, and immediate grant of same on their selec-
tion, being union wages, terms, and conditions of em-
ployment previously withheld from the employees but a
matter of significant interest to employees at the time of
their initial organizational efforts-is thereby revealed to
be an action reasonably calculated under the above cir-
cumstances to weaken or forestall, if not eliminate, any
vestige of the embryonic organizational effort that was
existent and might reasonably be expected to continue,
and thus an interference with the Section 7 rights of em-
ployees in violation of Section 8(a)(1) of the Act. Wil-
liams may have been misled to miscalculate when a peti-
tion would be filed, but I am convinced he had not been
misled to reasonably conclude that all his employees had
given up their interest in organizing a union, but rather
opportunely reacted to ensure that result on receiving re-
ports suggestive of the fact that the movement might be
faltering. I further conclude and find that the announced
grant of said increased benefits and improved working
conditions, whether construed as implemented with the
benefit announcement on March 7 or subsequently imple-
mented with the benefit commencement on Monday,
March 10, was also violative of Section 8(a)(1) of the
Act. N.L.R.B. v. Exchunge Parts Co., 375 U.S. 405
(1964); Rhlev'v, Inc., 236 NLRB 971 (1978)."4
Inasmuch as I have also heretofore found the General
Counsel's offered evidence unpersuasive, but rather have
been convinced and found that Williams did not tell
Erting in regard to Erting's suggested alternative plan
that he might not be favorably inclined to such change if
the Union got in, nor anything im nilur, e.g., unlesv things
wen!t the other wayg, I shall recommend that the allegation
of the complaint that Williams on March 12 conditioned
the granting of promised benefits on employees' with-
drawing support from the Union be dismissed.
'" It so 1 ie nl s e Ito b i, cleir JhiVt it cIt he n ih an s'o cr Ili the ,th- ers rdI1rWt'L eFai t. tli. ie 1 rtae i iiatolii] right, ior the iniployer to argue. cven
Inicritor iiiusI , t ha h it ka s, not motivalcd hy .i (specific) desire to influ encei
the elcitoa n results. ilhl the IUnion's filig ol the petitiol Itha day bCeig
ulkiilnl.. ii h is t'Villair , Is and the i llliol (iTrgliarlli ,ial efforts reported ;is
stalled Moorcier, cases oti l ,hich Respondert a rged reli ance. such alsConnot r Ilardin C ol r pany. Ia, I88 NiR it 2 3 (l7 1 ), I'ou/ tr. P(IaI CerInc, 2 7 Nl iRB 250 (1978). and s inilar cases such as thos i i i .. : ino Iig the
ilpJ)ca tI ICC .OFi di lrinal UnI i win ttlhdra a i[., or it gltligaifcanl t aip. of tinem ith Int L'le\lig . cii hI ,MI L,. oniil idCrai tioisi arising (hit s . crv adidri,,d. auso appeial to he inappbosite on their facitis td,/ or 'thcr 'i.,creadllt' d,1istingurkishablc IT l i t.lng its paranmount asscrtted husiless coiinicern
O\c'l It. pri. .. Ip e ol skilled Crattiitni i qlittitig -ssenttialk] hut ll ai se ill a.rti
tile I tiphlyis r his noi establishedld lcts sul'/ficlcit I t J usltil
3 it tactionlOhiich oIlhir\kisC clr l s inlIrtercd il ith le rgll al rigirgl lll lllf It,lllpfltk'Ic, and l tilS, Ii ll. h nt rh 's sIlll ie r t ot it ,i i tfic n I01,1,o to
\a irrallt appliciioin 0f t ile Board', appoied tldding iir ft alin C' reA,/I ,thl ir lotepial d h a it/a lt ( orAl Iti opita , 2(19 NlRB I 5R, N ilt
('174). is urge(d hb, Ii, t Fiipl.eCr Iin liC. oI' thc t111/ig lit 1he gi ant. llet liltlFr lt. ' lisl\ s hinlsirtis IC ccSMI.S 111iil t ilt 1 ai t , l I hi J applid. Rc pl ld -
cr lli's ntls re it crllit ti lllllol Iprc\ ill] (I/I , P rr, lt'tr i (i l fiall ir, )tii r l.J/ Bfis t laughmi Indiomrc,i 22'1 NI RB 71' , 742 (1771
794
WILLIAMS LITHO SERVICE, INC.
Inasmuch as I have heretofore found that on March 17
Williams, while still upset over reports of recent, serious,
suspected vandalism of an employee's car, did tell his
employees in substance and effect that there would be no
more gathering in small groups talking about union busi-
ness, and no passing out of union literature on company
time and/or property, with a contemporaneous threat of
discharge for violation, I further conclude and find that
thereby Respondent has orally promulgated an overly
broad no-solicitation and no-distribution rule in violation
of Section 8(a)(1) of the Act."4 However, inasmuch as it
was conceded by the General Counsel's witness Record
that there had been considerable standing around by em-
ployees in the prior week with employees admittedly en-
gaging in union discussions during worktime, I do not
find that the rule was discriminatorily promulgated, as
also seemingly argued by the General Counsel, but
rather find that it was warranted by business conditions,
though, as promulgated, it was overly broad and thus
unlawful.
iiI. THi OBJECTIONS IN CASE 14-RC-9124
In view of my findings above. I further conclude and
find that the Union's Objection 14 (alleging that the
Company promised the employees better benefits if
Local 505 lost the election-to the extent it encompasses
alleged conduct on March 12), Objection 16 (alleging
that the Company solicited employee grievances), and its
objection relating to "Other Conduct Not Specifically
Alleged in the Objections" are all without merit, saving
only as to Objection 14 to the extent hereinafter noted,
and I shall recommend that they be overruled. However,
in view of the above findings that Williams' no-
solicitation/no-distribution rule as promulgated on March
17 was unlawfully broad, and was accompanied by a
threat of discharge for violation, all in violation of
Section 8(a)(l) of the Act, I find that the Union's Objec-
tions I and 2 are meritorious, and I shall recommend that
they be sustained. Inasmuch as I have further found that
the grant of increased benefits and improved working
conditions and the implementation of same on March 7
and/or 10 were unlawful, I further conclude and find
that there is merit to that extent in the Union's Objection
3 (alleging that certain preexisting benefits were discon-
tinued), in the Union's Objection 14 (alleging that the
Employer promised employees better benefits), but not in
Objection 9 (alleging that the Employer could not put
certain improvements into effect).
Accordingly, I find that there is merit to the Union's
Objections 1-3 and 14, and I shall recommend that they
also be sustained in those limited respects. Accordingly. I
shall recommend that the election heretofore conducted
in Case 14-RC-9124 be set aside.42
"t CfE , InEcrnrl,rzt.onl mn. f. 211 N RH ' )74:9 1' cc1 P u D't,. a
ofFruehaul (,orporatton, 237 NlRH 319, 401 (197X)
42 W'rt Ili'.a Equiptftlcn. U itprl IJS,' hId a/ I:'/Ira"'I 1, rt/ina/a trutm
Comnpany, 114 NI RH 1275 11t 1i
CONCLUSIONS OF LAW
1. Williams Litho Service, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Graphic Arts International Union, Local 505, AFL-
CIO-CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. In regard to Case 14-CA-13782:
a. By offering a choice on March 7, 1980, to all its em-
ployees to elect a workweek and overtime payment
schedule which was essentially that provided to other
employees under union contract, and by thereafter grant-
ing and implementing the employees' selection of the
said 35-hour workweek with certain double time pay-
ment provisions for overtime worked. in place of the
Employer's theretofore existing 40-hour workweek and
its time-and-a-half overtime payment schedule with a 35-
cent hourly premium paid to journeymen in lieu of any
double time payment, Respondent has granted all its em-
ployees increased benefits and improved the terms and
conditions of employment of all its employees in circum-
stances reasonably calculated to interfere with the recent
union organizational efforts of its employees in violation
of Section 8(a)(1) of the Act.
b. By orally promulgating on March 17, 1980, an
overly broad and thus unlawful no-solicitation and no-
distribution rule with a contemporaneous threat of dis-
charge for violation thereof, Respondent has interfered
with the Section 7 rights of its employees in violation of
Section 8(a)(l) of the Act.
4. Respondent has not otherwise engaged in conduct
violative of the Act.
5. In regard to Case 14-RC-9124:
a. By virtue of, and to the extent of the conduct found
unlawful in Conclusions of Law 3a and 3b above, there
is merit found in the Union's Objections 1, 2, 3, and 14 to
the election conducted in Case 14-RC-9124.
b The Union's objections as otherwise contained in
Objections 9, 14, 16, and the "Other Conduct Not Spe-
cifically Alleged in the Objections" are without merit.
THE REME DY
There remains but to consider the General Counsel's
additional complaint allegation regarding the remedy
sought herein, viz, that Respondent's unfair labor prac-
tices are so serious and substantial in character and effect
as to warrant the entry of a remedial order by the Board
requiring Respondent as of "March 5th" (sic) to recog-
nize and bargain with the Union. It has been contracon-
tended by Respondent that the drastic remedy of a bar-
gaining order is simply not warranted in this case.
First the General Counsel has contended that, even if
it be determined that there has been no showing of desig-
nation of the Union as collective-bargaining representa-
tive by a majority of the employees, a remedial order is
nonetheless warranted, arguing that the Employer's
unfair labor practice conduct was "outrageous" and
"pervasive," and seeking to rely in that regard on the
Board's holding in !United Dairy Farmers Cooperartie .4v-
sociatio,, 242 NLRB 1026 (1979). Hoowever, conlrary to
the (;eneral Counsel's urgings in the latter regard, I con-
795
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elude and find that Respondent's conduct hereinabove
found unlawful does not appear to have been such as
would warrant imposition of a remedial bargaining order
in the absence of a convincing evidentiary demonstration
of designation of the Union as collective-bargaining rep-
resentative by a majority of the employees in the unit for
reasons clearly expressed by the Board in declining to
issue a remedial bargaining order in United Dairy Farm-
ers Cooperative Association, supra. See also Sambo's Res-
taurant, Inc., 247 NLRB 777 (1980).
Secondly, the General Counsel, on brief, has continued
to urge the appropriateness of entry of a remedial bar-
gaining order on the basis that the Employer has other-
wise engaged in pervasive conduct which had a "tend-
ency to undermine majority strength." I conclude and
find that warrant for such a remedial bargaining order
would appear presented herein on the basis of "less per-
vasive practices which nonetheless still have the tend-
ency to undermine majority strength and impede the
election processes." N.L.R.B. v. Gissel Packing Co., Inc.,
395 U.S. 575, 614 (1969). The General Counsel's con-
tended position would appear in conduct heretofore eval-
uated by the Board as of a nature having a lingering
effect, such that traditional remedies have been deemed
unlikely, or less likely, to insure a fair or free rerun elec-
tion, where the Board was persuaded that a record of
valid, unambiguous cards executed by a majority of the
employees in the unit are present, and represent a more
reliable measure of employee desire on the issue of their
representation. Raley's, Inc., supra; Eagle Material Han-
dling of New Jersey, 224 NLRB 1529, 1533 (1976); C & G
Electric, Inc., 180 NLRB 427 (1969). But see and com-
pare Walgreen Company, 221 NLRB 1096 (1975), relied
on by Respondent, which would, however, appear distin-
guishable.4 3 Respondent's additional reliance on WCAR,
Inc., 203 NLRB 1235 (1973), would appear to be placed
on a case even more readily distinguishable."44 In passing,
" In the Walgreen case, supra, a wage increase previously granted 4
months earlier and put in effect at other stores was deemed unlawfulls
granted 3 days after organization commenced In concluding such (a)ll I)
conduct considered alone or in conjunction with other unfair labor prac-
tices found was not irremedial, and in concluding that a bargaininlg order
was thus not warranted, the Board observed that, though the raise was
unlawfully granted (as found by the Administrative L aw Judge, the
timing of the grant was to lessen union support), it was not tied (appar-
ently in origin) to the union's organizing campaign, it had been granted
to employees at other stores earlier, and it thus did no more than bring
those employees (being organized) up to the prevailing rate: and this was
so explained to the employees. None of these factors would appear pres-
ent herein.
"Thus, in WCAR, Incr. although the case involved an overtime pay
ment, the case presentment was one iof an unlawfully advanced payment
of sums previously earned and due, and thus it involved a one-ltime over-
time payment; whereas the instant matter clearly involves a permanent
change made in the workweek schedule and a continuously operating
overtime payment plan. The cases of Naunu Brothers. Inc., 240 NL.RB 311
(1979), relied on by the General Counsel. and New. 4/aska D'eve(lpl(ment
Corp.. Alaska Housing Corporation, 194 NLRB 830 (1972), relied on by
Respondent, would both appear readily inapposite on their essential facts
In passing. I would additionally note that in Neiw l4aska. supra, there is
an indication that the likelihood that illegal conduct will reoccur mas
have been a factor considered by the Board In that connectionm I col-
elude and find that the instant record before me does not present the ap-
pearance of a respiondent with any heretolfore demonstrated propensity to
violate the Act.
I would observe that, even if I am in error, and the Gen-
eral Counsel's earlier position were deemed to be the one
to prevail, e.g., that Williams' even one-time utterance in
regard to a receptivity to his employees' selection of an
employee representative, or spokesman, had an unwanted
effect on employees in that it reasonably would be (or
was) taken by them to be a viable offering, and thus con-
stituted an interference with an exercise of their Section
7 rights, such incident would appear as one not to bear
significantly on the issue of a required bargaining order.
Cf. The May Department Stores Company d/b/a The M.
O'Neil Company, 211 NLRB 150, 151 (1974).
With findings herein made that Dostal, George, and
Meschke were not established to be supervisors, but
rather were shown to appear to be senior, experienced
craft leadmen, there were resultingly 16 employees in the
appropriate unit, only 8 of which the General Counsel
has established had previously executed valid union au-
thorization cards specifically designating Local 505 as
their collective-bargaining representative respecting
wages, hours, and other terms and conditions of employ-
ment. It follows that the Union had not attained, at any
material time herein, to a majority collective-bargaining
representative status based on a valid authorization card
designation.
With forethought to perceive the potential for such a
result, the General Counsel has alternatively argued that
authorization cards are not the sole serviceable basis for
Board reliance that the Union at some material point of
time was shown to have actually occupied a collective-
bargaining representative status for the majority of the
Employer's employees. The General Counsel has estab-
lished by documentary evidence, stipulation, and/or
credible testimony that employees George, Meschke, and
Rainey (all scanners) were each members of Local 505
previous to their employment with Williams Litho; and
that they were dues-paying members who had paid up
their dues through material times. ' The General Counsel
has constructed detailed arguments based on the stated
objectives and organizational commitment as contained
in the "Constitution and Laws" of the International and
in the "By-Laws" of Local 505, as well as on member-
ship obligations therein, particularly in regard to the
(general) maintaining of contractual relations with em-
ployers. Based on same the General Counsel has essen-
tially argued that, even absent executed authorization
cards by members George, Meschke, and Rainey, these
three employees by continuance of their membership
have effectively demonstrated they have designated the
Union as their collective-bargaining agent with Respond-
ent. 46
4I Also introduced were applications b) Rainec for membership in the
Graphic Arts International Union (herein the International) and in Lyocal
50)5. Neither document speaks specifically to authorizing the Union to
lepresent the applicant in collective bargaining in regard to wages, hours.
and wsorkinig conditions; hut the applicant. on approvsal hy the Interna-
lionnal, apparentl' becomes eligible for that Union's mortuary fund hene-
fit. which appears to call fior a maximum benefit of S1,350(
A" On brief, the Genera;l Coaunsel hwould have the instant situationt also
likened to the situation where payment of dues by a majority of current
erlplosees mai be utilized to demonstrate a continued majority of a
union. Re/uhen R .iii/er and Riuhn R Miller and Phillip l Md:er.
(Continued
796
WILLIAMS I TH() SERVICE. INC
The Employer responds there is no case support to be
found for the General Counsel's advanced theory that
mere union membership impliedly expresses an intent on
the part of the member that the Union is to (continuous-
ly) serve as that individual's bargaining agent at all times
and at every place of employment; and Respondent
argues such should particularly not be the case herein
where the initial act of joining the Union does not re-
quire such an intent and where continued membership
may be explained by benefits other than representation in
the collective-bargaining process,"7 where the initial
membership itself may be otherwise explained, and
where member-employees may have otherwise indicated
their present lack of interest in representation by the
Union vis-a-vis their employment relationship with their
present employer, as herein. The General Counsel would
appear to concede that an otherwise indicated designa-
tion might not be applicable where a union member is
shown to have specifically refused to execute a card, was
an "outspoken opponent of the Union," or had delivered
an "impassioned" antiunion speech (WCAR, Inc., supra at
1248) but argues for same otherwise. It is to be noted
that in the WCAR, Inc., case, supra, the basic authoriza-
tions were included in the employees' membership appli-
cation forms and were unrevoked.
Respondent, in turn, has conceded that George,
Meschke, and Rainey were union members who prior to
employment with the Employer had worked at Local
505 shops, but points out accurately that the Union's
citywide contract has had, and continues to have, union-
shop and dues-checkoff provisions. The Employer addi-
tionally would have it observed that all these employees
were informed of the Union's organizational campaign at
the Employer and of the March 3 union informational
meeting, but none of the three attended. Respondent also
affirmatively argues that not one of them has signed an
authorization card, or otherwise expressed a current
desire to designate the Union as their collective-bargain-
ing representative with the Employer. 48 the General
Counsel contracontends that the Employer has not
shown the latter in that it failed to call George,
Meschke, or Rainey to establish it, and that the record is
barren as to whether they ever actually refused to sign
Trustees of Morrl.s cMiller. d/bi/a Sioux City Bottling uorks. 156 NLRB
379, 384 (1965) However, that case is readily dislinguishable in that there
was therein a majority representative already duly chosen See WC4R.
Inc.. supro at 1248. fn. 21.
" The Employer here points to: (a) the Union's operation of a referral
hall: (b) its job service afforded members the on inquiry of the member,
or the Union's own initiated notice to members in regard to available job
opportunities with some 65 companies operative in the area and under
contract with the Union; and (c) the aforesaid mortuary fund benefit, and
other intangible benefits, citing social esvents and peer acceptance.
"' The Employer showed that on March 3 Record was instructed by
Witt to solicit a card from Rainey However. Record testified without
contradiction that he did not solicit a card from Rainey as he did from
Schaffner. (The authorization card was readily delivered to Schaffner, a
second-shift employee, executed by him, and promptly retrieved.) Re-
spondent obtained admissions from Witt that, on a later occasion when
Witt spoke to George. George told Witt essentially that it was a shame
the Union was trying to organize such a wonderful place I do not find
any concession in the record by Witt that, on his (election) approach of
Meschke, Meschke was noncommittal In any event, the George and
Meschke remarks to Witt were clearly made well after the March 7 grant
of substantial benefits
an authorization card. The General Counsel notes as to
George (only) that George was viewed as a supervisor
by the Union, and that his support was not even solicited
at the time. The General Counsel further argues that the
Union's approach of George and Meschke, being subse-
quent to the unlawful conduct of Respondent on March
7, will not permit the drawing of an adverse inference of
revocation of union designation arising from the failure
of the Union to produce an authorization card from
these individuals. 49
I am persuaded that there is Board precedent that a
showing of designation of the Union as collective-bar-
gaining representative is not required to be by card des-
ignation alone. The Act requires no specific form for the
grant of authority to bargain; and "It is only necessary
that it be manifested in some manner capable of proof,
whether by behavior or language." Sema Corporation,
d/b/a Shenandoah Golf and Country Club, Inc., 185
NLRB 455, 458 (1970). In urging that the Board rejected
therein an employer's attempt to establish the union's
majority support on the basis of union membership, the
Employer herein would appear to rely on language ad-
dressed in the analysis to arguments based on the import
of argued staffing made through a referral hall.50 Howev-
er, it would appear that the Administrative Law Judge's
findings therein reveal that, while past memberships not
shown current, or interrupted, were not counted as des-
ignations, the finding made as to one employee who had
paid dues to the union but for whom the union had not
presented a card designation was to be counted, though it
may fairly be observed that in the light of other findings
the latter was not of controlling significance. Id. at 457,
458. Respondent has also argued that mere membership
cannot be equated with "clearly manifested" intent to au-
thorize the Union as collective-bargaining agent, seeking
to rely on WCAR, Inc., supra. However, Respondent's
reliance thereins' would appear to fail to take into ac-
count that the case cited in support was the Shenandoah
Golf case, supra; and further that in WCAR, Inc., supra,
not only was the origin of membership effected by a
background of union-security provisions while employed
*" Presumably for similar reasoning, the General Counsel has not
sought Io advance argument herein for a majority showing that would be
based on the available card designations and the challenged ballot of
George (Other ballots challenged were those of Dostal and Kirby ) See
and compare Pinter Bros.. Inc.. 227 NLRB 921 (1977) In any event, in
view of findings hereinafter made I need not address the question of war-
rant herein to reach. or to resolse, such an issue
*° Noted by the Employer was:
[WJhatever a person's attitude regarding union representation may
have been prior to his hire by the Company. it does not necessarily
follow that it remained the same thereafter Even had it happened
that a majority of the employees hired by the Company had at some
earlier times been members of the unions, in the absence of any evi-
dence that their desires for representation continued unchanged. an
inference to such effect cannot validly be drawn lid at 458]
s' The reliance made was on the statement by the Administrative Law
Judge therein that
Against the background of the union-security prosisions, a card des-
ignating the Union to represent the signer in any and all matters
within the radio, television and related industries, embracing the
Union's entire jurisdiction. would not necessarily or even probably
Indicate a desire on the part of the signer to bring the Union into the
nonunion station by which he is currently employed (Id at 1248
797
I)FC ISl()NS O() NA IIONAI. I.AB()R REI.AI IONS B()ARI)
elsewhere, but continuance of membership could be ex-
plained by the desire to continue to do freelance work
for 120-160 producers under union agreements with
union-security provisions. The same alternative explana-
tion for continued membership was then reinforced by
other evidence of the employees' disaffection with the
union as their representative vis-a-vis their present em-
ployer, viz, the repeated refusal of one to sign an authori-
zation card for the union; the circumstance that a second
employee had delivered an "impassioned" antiunion
speech; and that the third was identified by the union in
formal objections as an "outspoken opponent of the
Union." Before completing analysis of Respondent's ar-
guments made in such vein, I shall look more closely at
the General Counsel's showing made in regard to the
designation by George, Meschke, and Rainey of the
Union as being their collective-bargaining representative
with their present nonunion Employer by virtue of their
status as dues-paying members of Local 505.
Analysis of the International's "Constitution and
Laws" and of the "By-laws" of Local 505, introduced in
evidence by the General Counsel, reveals as to the Inter-
national's charter in part: a general purpose "to accom-
plish the organization of all workers within its authority"
(preamble); the fact that membership in the International
is derived from membership in the Local (pt. I, art. XIX,
sec. 19.1, p. 13); limitations (operative on George,
Meschke, and Rainey) on withdrawal and resignation
(secs. 19.8 and 19.9, p. 14); a declaration in regard to
powers and jurisdiction of the Local that it "constitutes a
geographic or other unit of membership of the Interna-
tional, deriving its charter, jurisdiction and powers from
the International"; and a declaration that "[t]he Local
shall be the exclusive representative of each member for
purposes of collective bargaining and the execution of
collective bargaining agreements and as such representa-
tive is authorized by each member to handle, settle or
dismiss all grievances of each member relating to his em-
ployment" (pt. II, ch. 1.1, p. 26). The Local's "Bylaws"
pertinently provide for a standing organizing committee
which "shall establish and maintain a current roster of
unorganized workers and shop[s] and shall strive cease-
lessly to organize all appropriate Graphic Arts workers
into the Union" (art. X, sec. 10.1(c), p. 9). Finally, both
the International and the Local require an oath (or affir-
mation) of membership, as a condition of membership,
which provides, inter alia that the member "will, to the
utmost of my abilities, faithfully discharge the duties and
obligations pertaining to membership in the Graphic Arts
International Union and of the Local in which I enter
upon membership; that I will take an affirmative part in
the business and activities of the organization . . . that I
will support the officers in the performance of their
duties." I am fully satisfied from the above that the Gen-
eral Counsel has made out a prima facie showing of a
member's designation of the Local Union as his collec-
tive-bargaining representative by entry and maintenance
of membership in the International and/or in the Local.
The General Counsel has also established by pertinent fi-
nancial records: in regard to George that George has been
a dues-paying member since 1966, and had paid dues on
March 3 effecting currency through February, on April
I was current through March, on May I was current
through April, and on May 23 became fully current for
May; in regard to Meschke that Meschke had been a
dues-paying member since 1960, and on March 3 was
current through March, on April I was current through
April, on May I was current through May, on May 28
was current through June, and on June 20 was current
through July; and in regard to Rainey that Rainey had
been a dues-paying member from 1973, and on Decem-
ber 4, 1979, was current through November 1979, on (it
appears) January 4 was current through January, on
March 19 was current through March, and on May 19
was current through April. I am thus fully persuaded
and I find that the General Counsel has established that
all three were essentially current dues-paying members
of Local 505 during all material times herein. I am fur-
ther persuaded and I find that the General Counsel has
made out a prima facie case that George, Meschke, and
Rainey had authorized Local 505 to act as their collec-
tive-bargaining representative with their current Employ-
er by virtue of their prior acceptance of membership ob-
ligations and subsequent maintenance of status as current
dues-paying members during all material times herein
absent a clear contrary showing. I now address Respond-
ent's rebutting arguments to that effect.
George's statement to Witt, wholly apart from other
argument advanced by the General Counsel, at best
indicates a personal disappointment with the Union's
intent to organize the Employer. It certainly does not
constitute a clear disaffection with the Union or its stated
purpose, nor a revocation of the Union's designated au-
thority, particularly in the face of continued membership.
Witt's approach of Meschke for support is not shown to
have produced disaffection. Meschke is not shown either
to have been asked to sign a card, or to have refused to
sign a card or to give support; and it is clear that he also
thereafter has continued with regularity and currency as
a dues-paying member. Respondent's only showing as to
Rainey appears to be that he was an alleged victim of a
third incident of unidentified vandalism. This incident
was related as occurring in late March and was clearly
after both March 7 and 17. Rainey did not testify. How-
ever, on March 19, Rainey paid Local 505 dues and was
then current through March.
I conclude and find that Respondent has not sufficient-
ly rebutted the existence of the authority of the Union to
bargain on the behalf of George, Meschke, and Rainey
during material times herein by virtue of their contempo-
raneous behavior and/or statements.52 Respondent's final
arguments relate to the existence of alternative benefits
as a possible explanation for a continuance of member-
ship by these employees. The problem with that
advanced position's prevailing is that it does not by itself
necessarily exclude the clearly expressed acceptance of
the Local, or itself diminish the accepted obligation to
the Local in regard to collective-bargaining representa-
5" Nor will I speculate that George, Meschke. and Rainey have all
never read the International's "Constitution and Bylaws" or the Local's
"Bylaws" in view, of their evidenced years of membership, receipt of the
local', "HBylaAs," and the expressed ready availability of the Internation-
al's 'Constitulilon land G cnral L aws'" (sic) to all local union members
VWI IANMS I IT I() SL RV'ICIf INC
tive status, which is carried along with continued mem-
bership. In WCAR, Inc.. supra, not only did members ac-
tually engage in activity with other companies (free-
lance) fir which continued membership was a require-
ment and thus could be explained, they also engaged in
conduct clearly indicative that they affirmatively did not
want the Union to represent them with their current em-
ployer. In contrast herein, it is observed in that regard
that member-employees George, Meschke, and Rainey
have not been shown to have disaffected from the
Union, but rather elected to continue their membership
freely (e.g., not as a result of any applicable union-
security or dues-checkoff contractual requirement, nor
solely for other union membership advantage that is rea-
sonably demonstrated); and did so in a Local that is con-
stitutionally constituted to serve as the exclusive collec-
tive-bargaining representative of all its members ris-a-vis
their individual employers, and with the mutually ex-
pressed purpose and/or obligation of the International,
the Local, and the member to affirmatively pursue such
very bargaining status in unorganized employer condi-
tions. The same is thus reasonably to be ascribed to
member-employees George, Meschke, and Rainey as to
their own intended purpose and design, in the absence of
clear contra-indicating circumstances (deemed not shown
herein), by virtue of their conduct in a voluntary con-
tinuance of membership in that labor organization, as ef-
fectively and reliably, so it would seem, as the execution
of authorization cards designating Local 505 as their ex-
clusive collective-bargaining representative during the
same material times herein would appear to have done
so. I am persuaded that the General Counsel has estab-
lished the Union's majority representative status by a
combination of alternative means on which the Board
may reasonably rely; viz 8 valid single-purpose Local 505
authorization cards and the circumstance of 3 additional
employees who have maintained Local 505 representa-
tive membership during material periods herein, a total
of 11 in a unit of 16, a clear majority. As existing Board
precedent, otherwise controlling on me, appears to clear-
ly call for the remedial bargaining order sought herein
(KAevs-ton Pretzel Bakery. Inc., 256 NLRB 334, (1981),
cases cited earlier) the remedial bargaining order will be
accordingly recommended hereinafter. effective as of
Mlarch 7. 1980. It will be accordingly recommended that
the petition in Case 14 RC 9124 be dismissed
SL ITPI iN MI-N AI CON(I :SIONS Ot LAw'
6 All production and maintenance employees em-
ployed by the Employer at its Brentwood, Missouri, fa-
cility, excluding office clerical and professional employ-
ees, guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
7. Since at least March 6, the Union has been, and is
now, the exclusive representative of all employees in the
above appropriate unit within the meaning of Section
9(a) of the Act.
8. By its conduct in engaging in the unfair labor prac-
tices related earlier in Conclusions of Law' 3a and 3b,
above, Respondent has engaged in conduct which rea-
sonably viewed has a tendency to undermine the major-
ity strength of the Union and to impede the election
processes; and a remedial bargaining order is warranted
herein under all the circumstances to be effective March
7, 1980, particularly in view of the likely lingering effect
of Respondent's grant and implementation of increased
benefits and improved terms and conditions of employ-
ment on a subject of major interest to employees which
tracked union contract provisions.
Ri.Mt E'
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act
[Recommended Order omitted from publication.]
799