Thrush Press, Inc., 575 (1968)

THRUSH PRESS , INC. 575

Thrush Press, Inc. and District 65, Retail, Wholesale and Department Store Union, AFL-CIO. Case 2-CA-11281

May 21, 1968 DECISION AND ORDER

BY MEMBERS BROWN, JENKINS, AND ZAGORIA On January 16, 1968, Trial Examiner Alvin Lieberman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Decision. Thereafter, the General Counsel filed exceptions to the Decision, and a supporting brief, and the Respondent filed exceptions.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a threemember panel.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner except as modified herein.

We agree with the Trial Examiner 's finding that Respondent violated Section 8(a)(5) by refusing to bargain with the majority representative of its employees in an appropriate unit. However, we do so on the ground that after the Union's demand for recognition Respondent engaged in a course of conduct evidencing not only a complete rejection of the principles of collective bargaining but a desire to gain time in which to dissipate the Union's majority status. Thus, all in violation of Section 8(a)(1), Respondent systematically interrogated its employees as to their union sympathies and those of other employees, threatened reprisal for union adherence, and made promises of benefits to induce employees to disavow the Union. Such action clearly belies any asserted good-faith doubt of the Union's majority status.' ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Thrush Press, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.

' The General Counsel excepts to the Trial Examiner 's findings requiring the inclusion of employees O'Connor and Hinson in the unit involved herein. We find it unnecessary to resolve this issue since the unit placement of these two employees could not affect the Union's majority status 2 See Joy Silk Mills, Inc., 85 NLRB 1263, enfd as modified 185 F 2d 732 (C A.D C.).

Member Jenkins also agrees with the Trial Examiner that the violation of Section 8 ( a)(5) is established by the fact that Respondent had based its defenses for its refusal to bargain upon an erroneous view of the law.

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

ALVIN LIEBERMAN, Trial Examiner: The trial in this proceeding, with all parties represented, was held before me in New York, New York, on July 26, 27, and 28, 1967,1 upon a complaint of the General Counsel' and Respondent's answer.3 In general, the issues litigated were whether Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended ( herein called the Act). Particularly the questions for decision are as follows:

1. Did Respondent independently violate Section 8(a)(1) of the Act by coercively interrogating employees and promising them benefits? 2. Did the Union, when it requested recognition from Respondent, represent a majority of Respondent's employees in the unit set forth in the complaint, the appropriateness of which for collective bargaining Respondent is not contesting? 3. Did Respondent violate Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union? Upon the entire record,' upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made and the able brief submitted by the General Counsel,' I make the following:

   ' Unless otherwise noted , all dates referred to in this Decision are in 1967.

   ' The complaint was issued on a charge filed by District 65, Retail,

   Wholesale and Department Store Union , AFL-CIO (herein called the Union).

   During the trial Respondent amended paragraph 2 of its answer by deleting all references to paragraph 3 of the complaint Paragraph 3 of the answer denies the allegations of paragraph 4 of the complaint which describes a unit claimed by the General Counsel to be 'appropriate for the purpose of collective bargaining ' Notwithstanding this denial, Respondent, at the conclusion of its opening address, stated that it was not contesting the appropriateness for collective bargaining of the unit set forth in the complaint.

   Issued simultaneously is a separate order correcting the stenographic transcript of this proceeding in several respects.

   Neither Respondent nor the Union submitted a brief 171 NLRB No. 86 FINDINGS OF FACT

1. JURISDICTION Respondent, a New York corporation, maintains an office and place of business in New York, New York, where it is engaged in providing printing and related services. During 1966, a representative period, Respondent, at its New York premises, performed printing services valued at more than $50,000 for customers located outside the State of New York. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (herein called the Board) is warranted. Siemons Mailing Service, 122 NLRB 81, 85.

   2. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act.

   3. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Briefly, this case concerns itself with the events which followed the Union's authorization by employees of Respondent to act as their collectivebargaining representative. Among these, the complaint alleges, were the Union's demand for, and Respondent's refusal of, recognition and bargaining; Respondent's interrogation of employees; and its promises of benefits to induce them to renounce the Union.

   The General Counsel contends that Respondent's refusal to recognize and bargain with the Union is violative of Section 8(a)(5) of the Act. He further argues that Respondent's subsequent interrogation of, and promises of benefits to, employees contravened Section 8( a)(1).0

   Taking issue with the General Counsel,' Respondent asserts that its refusal to bargain with the Union is based upon its good-faith doubt as to the Union's majority status. Admitting that it interrogated employees, Respondent argues that its interrogation was not coercive and, therefore, not 'The sections of the Act just mentioned provide Sec 8 .(a) It shall be an unfair labor practice for an employer-( I ) to interfere with, restrain , or coerce employees in the exercise of the rights guaranteed in section 7, (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).

   Insofar as pertinent, Sections 7 and 9( a) are as follows.

   Sec. 7. Employees shall have the right to self-organization , to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Sec 9 (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of violative of Section 8(a)(1) of the Act. Finally,

   Respondent denies that it promised benefits to employees to dissuade them from supporting the Union.

   Rebutting Respondent's 'good faith doubt' contention, the General Counsel asserts, on brief, that it 'was based upon an erroneous view of the law.' Accordingly, continues the General Counsel, 'such doubt is not available to Respondent as a defense to the instant charge.' B. Facts Concerning Respondent's Alleged Independent Violations of Section 8(a)(1) of the Act 1. The alleged interrogation As will be more fully discussed below, on the morning of April 5 Peter Van Delft, an organizer for the Union, appeared at Respondent's office, showed Robert Conover, Respondent's production manager,8 authorization cards which had been signed by a group of Respondent's employees, and requested that Respondent recognize and bargain with the Union. Later that morning five employees9 were individually summoned into the office of Donald B. Thrush, Respondent's president. There, in the presence of Conover and Anthony DiSalvo,

   Respondent's general foreman,1'° Thrush questioned each about the Union.

   Some were asked whether they were members of the Union. Others were asked why they joined the Union. One, Degrammont, was asked for the identity of the Union's 'leader.' After Degrammont replied that 'all [are] leaders,' Thrush remarked, 'Alphonse, I'm sorry for you.' 1

   Admitting the interrogation, Thrush, Respondent's president, stated that it was undertaken in order to ascertain 'how on earth [the employees] ended up with this department store workers union when they are in the graphic arts business.' However, the employees questioned were not informed of this and only Goldsmith, as Thrush testified, was assured 'that anything [he] said would not affect [his] job.' In this connection, Thrush, as he further testified, reminded Goldsmith that he had 'taken [him from another company] and given him an opportunity to learn,' and told Goldsmith that he was 'disappointed' and 'sorry for' him.

   all the employees in such unit for the purposes of collective bargaining in...