Jackson Daily News, Inc.

In the Matter Of JACKSON DAILY NEWS, INC. and JACKSON PRINTING PRESSMEN AND ASSISTANTS UNION No. 215 Cases Nos. C-437 and R-487.-Decided October 10, 1938 Newspaper Publishing Industry-Interference, Restrcuint, and Coercion: anti- union statements ; engendering fear of loss of employment ; granting of wage increases to forestall organization-Unity Appropriate for Collective Bargaining: stereotypers , pressmen , and assistants ; eligibility for membership in only organi- zation among employees ; community of interest-Representatives: proof of choice : certificates of authorization-Collective Bargaining : refusal to recognize union as exclusive bargaining agent; refusal to discuss proposed contract or to make counterproposals ; employer ordered to grant union recognition as exclusive representative-Conciliation: efforts at, by U. S. Department of Labor- Investigation of Representatives : petition for, dismissed , in view of order to bargain. Mr. Samuel Lang, for the Board. Mr. William H. Watkins, of Jackson, Miss., for the respondent.. Mr. Joe E. Wilson, of Pressmen's Home, Tenn., for the Union. Miss Carolyn E. Agger, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On October 4, 1937, Jackson Printing Pressmen and Assistants Union No. 215, herein called the Union, filed a petition with the Regional Di- rector for the Fifteenth Region (New Orleans, Louisiana) alleging that a question affecting commerce had arisen concerning the representa- tion of the pressmen, assistants, and stereotypers employed by Jack- son Daily News, Inc., Jackson, Mississippi, herein called the respond- ent. On December 1, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Na. tional Labor Relations Act, 49 Stat. 449, herein called the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice; and pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of the aforesaid 9 N. L. R. B., No. 20. 120 DECISIONS AND ORDERS 121 Rules and Regulations, further ordered that, for the purposes of hear- ing, the representation case be consolidated with proceedings involv- ing charges and amended charges which had been filed by the Union. Upon charges and amended charges duly, filed by the Union, the Board, by the Regional Director, issued its complaint dated Decem- ber 2, 1937, against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (5) and Section 2 (6) and -(7) of the Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondent and the Union. An amend- ment to the complaint was duly served upon the respondent on Decem- ber 7, 1937. The complaint, as amended, alleged in substance, so far as here material, that the respondent had attempted to discourage member- ship in the Union by threats of loss of employment, by offers of increases in wages for withdrawing from membership, by expres- sions displaying hostility toward -union organization, and by the questioning of employees concerning their "loyalty" to the respond- ent, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. The complaint, as amended, further alleged that the pressmen, assistants, and stereotypers constituted an appropriate bargaining unit; that a majority of the employees in this unit had designated the Union as their representative for purposes of collective bargaining, and that the respondent had refused to bargain collectively with the Union. The respondent filed an answer to the complaint, dated December 6, 1937, which was amended on December 8, 1937, denying the allega- tions with regard to the unfair labor practices charged, alleging that its business was intrastate in character, and praying that the com- plaint be dismissed. Pursuant to notice, a hearing was held at Jackson, Mississippi, December 9 and 10, 1937, before Eugene P. Lacy, the Trial Examiner 'duly designated by the Board. The Board, the respondent, and the Union were represented and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. In its answer the respondent prayed and during the hearing the respondent moved for dismissal of the complaint upon the grounds that the operations of the respondent had no such relation to com- merce among the several States or foreign countries as to confer any jurisdiction upon the Board; and that the respondent was never notified that its employees had selected the Union to represent them. The prayer and motion were overruled by the Trial Examiner. During the hearing the Trial Examiner made several other rulings .on objections to the admission of evidence. The Board has reviewed 122 NATIONAL LABOR RELATION'S BOARD the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are affirmed. The respondent filed a brief dated December 17, 1937, relating to the evidence and to the question of the Board's jurisdiction over the cause. On February 9, 1938, the Trial Examiner filed his Intermediate Report in which he found that the majority of the employees in the printing and stereotyping departments had designated the Union as their representative for purposes of collective bargaining; that the respondent had refused to bargain collectively with the Union as exclusive representative of the employees in the alleged appro- priate unit and that the respondent had interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act . The Trial Examiner recommended that the respondent cease and desist from interfering with, restraining, and coercing its employees ; and that the respondent recognize, and bargain collectively with the Union as the representative of the respondent's employees in the press and stereotyping departments. On February 25, 1938 , the respondent filed exceptions to the Inter- mediate Report. The Board has considered these exceptions and finds them to be without merit. On March 26, 1938, the respondent , filed a motion for the resub- mission of the cause to the Trial Examiner , alleging that prior to the hearing it had not understood that the Union represented a ma- jority of the employees or that the Union desired to bargain as to any matter other than a closed-shop agreement ; that subsequent to the hearing, the respondent met with the representative of the Union and discussed wages, hours, and a closed-shop contract . On April 29, 1938, the respondent filed an amendment to its motion . The amend- ment, after reserving the respondent's objection to the Board's juris- diction, stated that the respondent "is willing to deal with its em- ployees collectively , and to recognize as exclusive bargaining agent such representatives as its employees in said unit may designate. The company is willing to recognize Joseph A . Wilson (representative of the Union ) as such representative." The Regional Director reports that the Union does not agree that the question of a closed- shop agreement is the only point of difference between it and the respondent, and that the Union contends that the respondent has refused to bargain collectively with the Union or its , representatives. Since the motion was filed subsequent to a full hearing with all parties participating, we are of the opinion that the motion should be denied. While prior to the hearing the respondent may have mis- understood its duty under the Act, if it has since determined to bar- gain collectively, it will not now be injured by an order to do so. The motion , as amended , is therefore hereby denied. DECISIONS AND ORDERS 123 'On September 27, 1938, a hearing for the purpose of oral argument was had before the Board at Washington, D. C. Only the Union .appeared. The respondent submitted a brief. Upon the whole, record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Delaware corporation, engaged in the publica- tion of a daily afternoon newspaper and a Sunday morning news- paper in the city of Jackson, Mississippi. The daily circulation of the newspaper is between 28,000 and 30,000, practically all of which is confined to the State of Mississippi. The respondent's newspaper carries news of local, national, and foreign affairs, local and national advertising matter, special features, cartoons, and comic strips. Out- of-State news is supplied by the United Press, to which the respond- ent , is a subscriber, and by the Associated Press, of which the re- spondent is a member. The news dispatches are delivered by these organizations to the respondent's place of business by means of tele- type machines located in the respondent's building and are there picked up by reporters employed by the respondent. The Associated Press, by its rules, is entitled to all local news which appears in the Jackson Daily News. This local news is sent out by teletype by the local representative of the Associated Press and amounts to an aver- age of 1,300 words a day, according to the local representative's esti- mate. The national advertising carried by respondent's newspaper is procured for it by an agent which has its place of business outside of the State of Mississippi. The sale of advertising service to na- tional advertisers accounts for 12.38 per cent of respondent's total Income, or $41,654.63. Approximately 35 per cent of the respondent's total expenses are incurred in the purchase of goods and services originating outside the State of Mississippi. The cost of special features and the Asso- ciated Press and United Press services amounted to $31,312.59, or 9.73 per cent of the total expenses incurred for the fiscal year ending November 30, 1937. Feature and advertising materials are sent to the respondent by wire, express, parcel post or through the regular mail. The respondent purchases almost all of its raw materials, newsprint, ink, metal, mats and blankets outside of the State at a yearly cost of $80,566.55, or 24.10 per cent of the respondent's ex- penses. The largest single item purchased outside of the State is the newsprint, which is brought from Canada by rail. The respondent purchases about 1,500 tons of newsprint a year, which cost $52,722.73 in the fiscal year ending November 30, 1937; freight on newsprint amounted to $23,654:31, or 7.30 per cent of the total expenses of the I 124 NATIONAL LABOR RELATIONS BOARD newspaper. All of the ink used by the respondent is brought by regular interstate truck lines from Louisiana to its plant. The respondent employed seven men and a foreman in its stereo- typing and printing departments (pressroom) in July 1937. At the time of the hearing, the respondent employed eight men and a part- time foreman. II. THE ORGANIZATION INVOLVED Jackson Printing Pressmen and Assistants Union No. 215 is affili- ated with the International Printing Pressmen and Assistants Union of North America and is a labor organization, admitting'to its -mem- bership printing pressmen, their assistants, and stereotypers in the respondent's plant. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Caleb Dortch, who ran an. engraving plant of his own, was also the foreman of the respondent's pressroom. On July 27, 1937, the day when an attempt was made by the Union to open negotiations with the respondent for a union contract, Dortch called two employees, Hudson and Mashburn, over to his engraving, plant. Dortch then informed Hudson that the "trouble" they were having with the Union was about to "get" their jobs and that if the matter were dropped, Johnson, the respondent's business manager, "talked like" he would give them a raise. Dortch also told the employees that Johnson was very "bitterly against the Union." Hudson was a union member; Mashburn was not. Two employees testified that several days later Dortch reported to them that Johnson had said that "whenever a union contract was placed" on his desk, "he would fire the entire crew." At the hearing, Dortch denied making • this statement but admitted that he had told Mashburn that Johnson was very much opposed to a "union contract" and that if the agitation for one con- tinued, he did not know what would happen.. Dortch further stated' that he had told several employees that he feared that the fight for union recognition was a losing one because of Johnson's attitude. In view of Dortch's admissions,,we are satisfied that he made substan- tially the statement attributed to him and we so find. Although at the hearing Johnson denied that Dortch had informed him as to the attitude of various employees toward, the Union, Dortch admitted that he had found out from the various employees, whether they would take the side of Johnson or that of the Union, if decisive action became necessary, and that he had reported their attitudes to Johnson. Dortch testified that his purpose in so doing was to "iron out all of the difficulties in the press room." Dortch frankly stated that another method employed by the respondent to DECISIONS AND ORDERS 125 iron out the difficulties was the granting of raises to certain of the employees. Wage raises had been promised to some of the employees for sometime in the future, but they were granted sooner than was originally contemplated, with the admitted purpose of discouraging the men from pressing for a union contract. Dortch stated at the hearing that Johnson did not object to em- ployees carrying union cards so long as they did not attempt to use them in collective bargaining. It was this attitude of Johnson's which Dortch attempted to convey to the employees. The respond- ent's actions in warning its employees that their jobs might be en- dangered if they persisted in pressing for a contract, in indicating that if the union activity was stopped a raise might be forthcoming, and in fact granting a wage increase for that express purpose, were intended to discourage union membership and collective bargaining. From the facts set forth above, we find that the -respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The refusal to bargain collectively 1. The appropriate unit The Union alleges that the unit appropriate for collective bargain- ing consists of the pressmen, assistants, and stereotypers employed in the respondent's plant. Evidence was introduced to show that the pressmen, assistants, and stereotypers worked closely together in get- ting out the paper after it had been set up in the composing room ; that some employees worked as both pressmen and stereotypers; that Dortch, the foreman, was not considered a part of the bargaining unit, and that the pressmen, assistants, and stereotypers were eligible for membership in the Union. The respondent denied in its answer that these employees constituted an appropriate bargaining unit but made no alternative suggestion and introduced no evidence in support of the denial. We find that the pressmen, assistants, and stereotypers,_ excluding the foreman, constitute a unit appropriate for the purpose of collec- tive bargaining, and that said unit will insure to employees of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit In July 1937, the respondent employed seven pressmen and stereo- typers in its plant. It was not disputed, and there was considerable evidence that, of these, three were members of the Union in July 1937 and for sometime previous thereto. On July 26, 1937, three other employees, Mashburn, Abraham, and Carithers, signed certificates of 126 NATIONAL LABOR RELATIONS BOARD authority, authorizing the Union to represent them in bargaining with the respondent. The certificates were introduced in evidence and the employees testified that they had signed them. About a month thereafter, another man was given full-time employment in the respondent's pressroom and he became a union member. At the hearing, three employees testified that they no longer desired the Union to represent them. One of the employees, Mashburn, talked to counsel for the Board on December 6, just prior to the hearing, and informed him that he still desired the Union to repre- sent him. Two nights later, Mashburn was told by the foreman to go to a meeting in the office of counsel for the respondent, at which Johnson, the respondent's business manager, was present. Mash- burn testified, on cross-examination, that it was then he decided that he no longer desired the Union to represent him. We are unable to give any weight to a decision made by an employee under such cir- cumstances and therefore disregard the repudiation. The repudia- tion of the Union by the other two men is also open to some ques- tion as to whether they had acted of their own free will, but since their action can have no effect upon the question of a majority, it is not necessary to discuss it. We find that on July 26, 1937, and thereafter, the Union was the duly designated representative of the majority of the employees in the appropriate unit, and, pursuant to Section 9 (a) of the Act, was the exclusive representative of all of the employees in such unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain On July 28, 1937, Joe Wilson, the union representative, telephoned Johnson and asked him for an interview. Johnson replied that he did not know what there was to talk about but agreed to see Wilson the following day. Wilson then mailed a letter to Johnson which stated that Wilson would like to discuss an enclosed proposed con- tract covering hours, wages, and working conditions. Johnson was disturbed by the telephone conversation and went to see one Wallace, the State organizer for the Union, whom he had known for some time. Johnson informed Wallace that Wilson was attempting to organize his pressroom in order to obtain higher wages, which the respondent was unable to pay. Johnson further stated that he did not like outsiders butting in and dictating. Wallace told Johnson that lie was unable to assist him. On July 29 Johnson met with Wilson. Wilson's letter and the proposed contract had not arrived at the time of the interview but came later during the afternoon. Wilson asked Johnson whether he had seen the contract and informed him that the Union represented DECISIONS AND ORDERS 127 a majority of the employees in the press and stereotyping divisions, and asked Johnson to recognize the Union as the collective bargain- ing agency for them and to meet with a committee of the employees to discuss wages, hours, and working conditions. Johnson refused to recognize the Union or meet with the employees, stating that he would not "sign anything" and that he had "nothing to talk about" with the employees' committee. Wilson told Johnson that he did not know whether or not he could sign the contract until he saw it. Johnson replied that "if it is a contract which calls for the unioniza- tion of my press room I will tell you now I will not do it." Johnson stated at the hearing that he did not even read Wilson's letter and the proposed contract when they arrived that afternoon, because 'he ``wasn't interested." A few days later, Wilson, having been convinced that he could make no headway with the negotiations, referred the matter to the Director of Conciliation of the Department of Labor. The repre- sentative of the Department of Labor was unable to arrange a settlement of the dispute and informed Wilson that the respondent's officials "couldn't reconcile themselves to deal with" the Union. A further attempt at negotiation was made about 2 weeks later, when the president of the local again asked Johnson to recognize the Union as the bargaining agent for the employees, since a majority of them had so designated it. Johnson again refused.`- Johnson denied that he had been informed, by the employees or by Wilson, that a majority of the employees had designated the Union as their representative for collective bargaining and said that he did not know this to be a fact. However, both Wilson and the presi- dent of the, local testified that they had so informed Johnson, and we find that Johnson was so informed. Both at the hearing and in his conference with Wilson, Johnson indicated that his primary objection to entering into a contract with the Union was that he was opposed to a closed shop. While the Act does not compel an employer to enter into a closed-shop agreement, or to agree upon any particular terms, it does require him to accept the procedure of collective bargaining, that is, to negotiate with the honest intent to reach a collective agreement. In his interview with Wilson, Johnson not only refused to consider the proposed closed- shop provision but also failed to indicate that he might consider a contract which did not contain such a provision or to offer any IIn its brief, the respondent questions the authority of the president of the local to represent the Union, and further states that neither he nor Joe Wilson gave the respondent authentic notice that they were duly authorized agents of the Union. The record is clear that Wilson, at least, identified himself as a representative of the Union and that the authority of the two individuals to represent the Union was not questioned by the re- spondent. We find it unnecessary to pass upon this contention , however, since the re- spondent's position throughout the entire proceeding has not been that it refused to bar- gain because it was not sure that it was dealing with duly authorized agents, but rather that it was willing to bargain but was unwilling to sign a closed -shop contract. 128 NATIONAL LABOR RELATIONS BOARD counterproposal . The evidence clearly establishes that the respond- ent's attitude goes beyond an unwillingness to sign a closed-shop agreement. The respondent's actions throughout the negotiations, particularly the refusal to meet with a committee of the employees, and the refusal even to discuss a closed-shop contract , do not evidence a serious attempt . upon the part of the respondent to come to an agreement with the Union. We find that the respondent , on July 29, 1937, and at all times thereafter, refused to bargain collectively with the Union as the representative of its employees in the appropriate unit in respect to rates of pay, wages, hours of employment , and other conditions of employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I . above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE PETITION In view of the findings in Section III-B above as to the appro- priate unit and the designation of the Union by a majority of the respondent's employees as their representative, it is not necessary to consider the petition for certification of representatives. Conse- quently, the petition for certification will be dismissed. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW . 1. Jackson Printing Pressmen and Assistants Union is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The pressmen, assistants, and stereotypers employed by the re- spondent, excluding the foreman, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Jackson Printing Pressmen and Assistants Union was on July 26, 1937, and at all times thereafter has been the exclusive repre- sentative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with Jackson Printing Press- men and Assistants Union as the exclusive representative of the em- ployees in the above-stated unit, the respondent has , engaged 'in and DECISIONS AND ORDERS 129 is engaging in unfair labor practices , within the meaning of Section 8 (5) of the Act. 5. The respondent, by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Jackson Daily News, Inc., Jackson , Mississippi, and its officers, agents , successors, and assigns, shall: 1. Cease and desist : (a) From refusing to bargain collectively with Jackson Printing Pressmen and Assistants Union as the exclusive representative of the pressmen , assistants , and stereotypers employed by the respondent, excluding the foreman; . (b) From in any other manner interfering with, restraining, or coercing its employees in the exercise of 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 con- certed activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Jackson Printing Press- men and Assistants Union as the exclusive representative of the pressmen, assistants, and stereotypers employed by the respondent, excluding the foreman , in respect to rates of pay, wages , hours of employment , and other conditions of employment; •(b) Post immediately, and maintain for a period of at least thirty (30) consecutive days from the date of posting, notices to its employees in conspicuous places throughout its pressroom , stating that the respondent will cease and desist as aforesaid; (c) Notify the Regional Director for the Fifteenth Region in writ- ing within ten ( 10) days from the date of this Order what steps the respondent has taken to comply herewith. And it is further ordered that the petition for investigation and certification of representatives be, and it hereby is, dismissed. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Order.