Ludlow Typograph Co.

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have earned as wages from the date of his discharge to the date of the Re- spondent's offer of reinstatement, less net earnings 12 during said periods . Said loss of pay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. It will also be recommended that the Respondent make available to the Board , upon request, payroll, and other records to facilitate the determination of the amounts due these employees under this recommended remedy. The unfair labor practices committed by the Respondent are of a character which strike at the roots of employee rights safeguarded by the Act. As these unfair labor practices are persuasively related to other unfair labor practices proscribed by the Act, a danger of their commission in the future is to be anticipated from the Re- spondent's conduct in the past . The preventive purposes of the Act will be thwarted unless the remedial order is coextensive with the threat . In order therefore to make effective the interdependent guarantees of Section 7 of the Act and to prevent a re- currence of unfair labor practices , I will recommend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by Sec- tion 7 of the Act. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. American Federation of Labor is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Omer S. Bradshaw, Charles Edward Hem, Harold Harlan Hetzer, George Eugene Laidley, James C. Lewallen , R. W. Ormand , and Stanley L. Wright , thereby discouraging mem- bership in American Federation of Labor, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By conditioning reemployment upon the signing of a petition repudiating their union activity, by threatening to reduce wages and require the service of a 4-year apprenticeship if the Union came into the plant, by threatening to move the plant after accelerating the completion of its contract if the Union came into the plant, and by discriminating in regard to the hire and tenure of employment of the above- named employees , the Respondent has interfered with , restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 'a Crossett Lumber Company, 8 NLRB 440 ,497-498. Ludlow Typograph Company and International Union of Elec- trical, Radio and Machine Workers, CIO, and Its Local 1024, IUE-CIO. Case No. 13-CA-1869. August 16,1955 DECISION AND ORDER On February 17, 1955, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain un- fair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respond- 113 NLRB No. 77. LUDLOW TYPOGRAPH COMPANY 725 ent and the Charging Union filed exceptions to the Intermediate Re- port and supporting briefs. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : We agree with the Trial Examiner that the Respondent on and after September 17, 1954, refused to bargain with the certified bar- gaining representative of its employees in violation of Section 8 (a) (5) and (1) of the Act for the reasons fully discussed in American Seating Company' In view of this decision, we find, as did the Trial Examiner, that it is unnecessary to decide whether there is sufficient evidence in this case to warrant an additional finding that the Re- spondent refused to bargain in bad faith and for the purpose of avoid- ing or delaying its statutory duty under the Act. Such a finding would require no addition to the Order we shall issue to remedy the viola- tion already found. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Ludlow Typograph Company, of Chicago, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Union of Electrical, Radio and Machine Workers, CIO, as the exclusive rep- resentative of all its employees in the appropriate unit set forth in the Intermediate Report with respect to rates of pay, wages, hours of employment, or other conditions of employment. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with International Union of Electrical, Radio and Machine Workers, CIO, as the exclusive bar- gaining representative of the employees in the appropriate unit, with respect to rates of pay, wages, hours of employment, or other condi- tions of employment, and embody any understanding reached in a signed agreement. 1 The Respondent's request for oral argument is hereby denied, as the record and briefs adequately reflect its position. 2 106 NLRB 250. Chairman Farmer agrees with the disposition of this case. How- ever, he does not adopt the full rationale of American Seating which cited with approval Boston Machine Works Company, 89 NLRB 59. Boston Machine involved a schism sit- uation which Chairman Farmer deems substantially different from that present in this case ; therefore he finds it unnecessary to rely upon the latter decision , with which he has already reserved judgment. See Arthur C. Harvey Company, 110 NLRB 338. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its plant in Chicago, Illinois, copies of the notice at- tached to the Intermediate Report marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Thir- teenth Region, shall, after being duly signed by a representative of the Respondent, be posted by it for a period of sixty (60) consecu- tive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER RODGERS took no part in the consideration 'of the above De- cision and Order. 3 Said notice shall be amended however by substituting for the «ords "The Recoin- mendations of a Tual Examiner " the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for ,the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." INTERMEDIATE REPORT STATEMENT OF THE CASE The primary issue in this case is whether Ludlow Typograph Company, herein called Respondent, was justified in September, October, and November, 1954 in assert- ing as a bar to bargaining with a newly certified union (International Union of Electrical, Radio and Machine Workers, CIO , herein called IUE-CIO ) the existence of a contract between Respondent and another union (International Association of Machinists, AFL, herein called IAM ) which had a terminal date of November 1, 1955. THE FACTS On October 9, 1952, following an election, the National Labor Relations Board, herein called the Board , certified the IAM as the bargaining representative of Re- spondent's production and maintenance employees . In December 1952, Respondent and the IAM entered into a collective-bargaining agreement covering employees in the certified unit and effective from November 1, 1952, to November 1, 1953 , subject to automatic renewal from year to year thereafter, absent notice to terminate by ,either party 60 days prior to the contract 's anniversary date. On August 10, 1953, the IUE-CIO informed Respondent that it (IUE-CIO) represented a majority of Respondent 's employees and requested Respondent to meet for bargaining purposes . On August 11, 1953, the IUE-CIO filed with the Board a petition seeking certification as the representative of Respondent 's production and maintenance employees (Case No. 13-RC-3504, not reported in printed volumes of Board Decisions and Orders ). On August 13, 1953, the Board 's Regional Director dismissed this petition on the ground that a valid election had been held in the same unit within the preceding 12-month period . The IUE-CIO filed an appeal. On or about September 3, 1953 , the JUE-CIO filed a second petition seeking certification as the representative of Respondent's production and maintenance em- ployees (Case No. 13-RC-3561, not reported in printed volumes of Board Decisions and Orders ). At the same time (on or about September 3, 1953 ) IUE-CIO wrote Respondent informing it of this second petition, stating that it (IUE-CIO) had information that Respondent was negotiating "a new labor contract with a minority union" and that "inasmuch as IUE-CIO represents a majority of your maintenance and production employees, we inform you that to proceed with these negotiations you do so at your peril," and requesting Respondent to meet with the IUE-CIO. On or about September 9, 1953 , the Board's Regional Director dismissed the second petition of IUE-CIO on the same ground that he had earlier dismissed the petition in Case No. 13-RC-3504. LUDLOW TYPOGRAPH COMPANY 727 On September 16, 1953 (while the appeal in 13-RC-3504 was pending but within 1 year of the-date of the certification` of the IAM) Respondent and the IAM signed anew bargaining contract, effective retroactively from August 17, 1953, to November 1, 1955.- Except for an inc'r ase'in wages' minor changes in certain other provisions, and the new termination date, this contract was identical with the first contract. ' On or about October 9, 1953, the parties were informed that the Board sustained the.Regional Director's dismissal of, the petition in Case No. 13-RC-3504. On or about October 28, 1953, the IUE-CIO requested the Board to reconsider its action and to proceed on its petitions. By order dated,November 25, 1953, the Board reversed the dismissal of the petition in•Case'No.13-RC-3504. 'On June-25, 1954, the Board directed that an election be held. The election was held on July 16, 1954, and the IUE-CIO won. On July 26, 1954, the IUE-CIO was certified as the bargaining representative 'of ' all production and factory maintenance employees at the Employer's [the Re-' spondent's] Chicago, Illinois, plant, including pantograph production machine operators, but excluding toolmakers, machinists, engineering employees, drafts- men, type face design department employees, professional employees, office em- ployees, messengers, guards, watchmen, foremen, assistant foremen, foreladies, assistant foreladies, chief shop timekeeper; management personnel, and all other supervisors as defined in the Act. In the representation proceedings Respondent and the IAM, relying upon the print ciple established in The Quaker Maid Company, Inc., 71 NLRB 915, that a contract signed within the certification year constitutes a bar to a determination of repre- sentatives, sought dismissal of the proceedings. The Board (Members Murdock and Peterson dissenting) rejected this contention and directed that an election be held. The Board (Chairman Farmer and Members Rodgers and Beeson) reexamined the Quaker Maid rule and decided "it should no longer be followed." 1 By letter dated August 18, 1954, the IUE-CIO informed Respondent of the names of its negotiating committee and requested a date for the purpose of discussing a labor contract between Respondent and the IUE-CIO and its Local 1024. Conferences for negotiating purposes were held between representatives of Re- spondent and representatives of the IUE-CIO and its Local 1024 on September 17, October 7, 15, and 19, and on November. 16, 1954. At the meeting on September 17, 1954, Respondent took the position that the IAM had rights arising out of the contract signed on September 16, 1953, which could not be disregarded without the consent of the IAM,z that the contract signed September 16, 1953, was still in force and effect and remained binding until its expiration date in 1955, and that the question of new hourly rates was not open for negotiation, under the contract,3 and Respondent was not obliged to consider these matters but would listen to arguments for new hourly wage rates. Respondent did not abandon com- pletely its position concerning the IAM's rights until after it (Respondent) received a letter dated November 11, 1954, from the IAM releasing Respondent "from the See Ludlow Typograph Company, 108 NLRB 1463 The record infers, although there is no direct evidence to this effect, that the IAM, by letters dated September 2 and 15, 1954, asserted certain rights under the contract and requested the discharge of certain employees for failure to pay IAM dues. 3 The contract provides, inter alia : Either party to this agreement shall have the right to open this agreement for the sole and limited purpose of negotiating what the hourly wage rate shall be, but for no other purpose, for the period November 1, 1954, to October 31, 1955, both inclu- sive. This right, however, shall not exist in favor of either party hereto unless 60 days prior to November 1, 1954, either party shall have served written notice upon the other party hereto of its intention to negotiate what the hourly wage rates shall be for said period November 1, 1954, to October 31, 1955, both Inclusive. (If a period less than 60 days shall by Federal law be recognized as sufficient notice of intent to negotiate the aforesaid hourly wage rates for said period, then either party, may give such lesser number of days' notice of its intention to negotiate what the' hourly wage rates shall be for said period from November 1, 1954, to October 31, 1955, both inclusive Respondent contends that'the IUE-CIO letter dated August 18, 1954, Is not a notice of intention within the meaning of the above-quoted section of the contract. In view of the rulings hereinafter made, the Trial Examiner is not passing upon the merit or lack of merit of this contention. ' 379288-56-vol. 113-47 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms and conditions of the agreement" and stating that the IAM had no further interest in the matter and was withdrawing its (the IAM's) claims (made in its earlier correspondence). At the meetings after September 17, 1954, Respondent's position was substantially the same as that taken at the September 17 meeting-that the IAM contract was in full force and effect and remained binding until its expiration date in 1955 and the IUE-CIO was required to assume this existing contract. On October 20, 1954, the United States Court of Appeals for the Sixth-Circuit entered an opinion in Modine Manufacturing Company v. Grand Lodge International Association of Machinists, reported in 216 F. 2d 326. In that case the court decided that after a Board certification of another union an earlier bargaining agent has no rights under a contract executed prior to the certification and ceases to be the bargain- ing representatives as a result of the certification. The court further indicated that after such a certification an employer is compelled "to bargain and deal with" the newly certified union exclusively and that the existing contract "had to be adminis- tered by" the newly certified union. After the decision in the Modine case and after the IAM abandoned its interest in this matter Respondent contended, in substance, that the IUE-CIO was obligated, by the terms of the contract entered into by the Respondent and the IAM and was required to assume the existing contract, and that Respondent was not required to bargain for a new contract or with respect to changes in the provisions of the contract. Throughout the conferences Respondent evidenced a willingness to recognize the IUE-CIO as the representative of its employees and stated a willingness to negotiate or discuss subjects "properly open for discussion." However, Respondent refused to negotiate or discuss 20 demands (bearing upon rates of pay, wages, hours of em- ployment, and other conditions of employment) presented by the IUE-CIO, con- tending that in view of the contract these demands were not "properly open for dis- cussion." At the conferences after October 15, 1954, Respondent evidenced a willing- ness to modify the contract by substituting the IUE-CIO for the IAM wherever the latter appeared in the contract but would not agree to modify the contract in any other manner. The IUE-CIO did not want the terms and conditions stated in the contract entered into with the IAM and sought conferences in which all matters bear- ing upon rates of pay, wages, hours of employment, and other conditions of employ- ment are open for negotiation and bargaining. As noted above Respondent took the position that such matters are not open for bargaining in view of the contract- signed September 16, 1953. On November 18, 1954, the IUE-CIO and its Local 1024 filed the charge herein. The complaint issued December 15, 1954, and the hearing before the Trial Examiner was held on January 17, 1955. Contentions Respondent contends that the certification of the IUE-CIO merely resulted in the substitution of a new bargaining representative for its production and maintenance employees in place of the old representative (in place of the IAM), with the substan- tive terms of the contract signed September 16, 1953, remaining unchanged. In sup- port of this position, Respondent argues that the IAM was the agent of the production and maintenance employees when the contract with that organization was executed and that it (Respondent) and the production and maintenance employees, as princi- pals, are bound by that contract to the expiration date thereof, notwithstanding that the employees have changed their agent. Counsel for the General Counsel, on the other hand, contends that the certification of the IUE-CIO resulted in making the existing contract with the IAM inoperative. Similar contentions, under similar cir- cumstances, were made in American Seating Company, 106 NLRB 250, and the Board ruled contrary to the position taken by Respondent herein. Respondent, nevertheless, asserts that the later decision of the Sixth Circuit in the Modine case supports its position and is controlling herein. In the Modine case the issue before the court was whether the IAM retained the rights accorded to it under a contract of 1948 (expiring April 30, 1951) after the Board certified another union (the CIO). The court found that the certification of the CIO deprived the IAM of its status as bargaining representative, that the provi- sion of the contract as to the JAM and the payment of dues became inoperative as soon as the IAM ceased to be the bargaining representative, and that after the certifi- cation of the CIO the JAM had no rights under the contract. The court did indicate, however, that after the certification of the CIO the employer was compelled "to bargain and deal with" the CIO exclusively and that after the certification of the CIO the contract "had to be administered by CIO" (page 329). Nevertheless, the court stated it was not passing upon whether the substantive provisions of the contract "as LUDLOW TYPOGRAPH COMPANY 729 to wages, hours, etc.," were in full force and effect up to April 30, 1951 (the expira- tion date of the contract ) or "were still binding after the certification of CIO." Accordingly, it appears that the Modine case is not apposite herein. Respondent further contends that American Seating has been "superseded" by Lion Oil Company, 109 NLRB 680, by California Cotton Cooperative Association Ltd., 110 NLRB 1494 and by other cases (cited by Respondent in its brief ) and that the Board now considers the decision in American Seating "unsound." The Trial Examiner finds this contention to be without merit. In a recent representation case before this Agency , the Board refused to determine whether rights and obligations conferred by an existing contract must be assumed by a newly certified union (and thus did not disturb the Board's ruling in American Seating, supra). See International Harvester Company, 111 NLRB 276. In that case Board Member Rodgers indicated that in his opinion a position similar to that advanced by Respondent herein has merit (see footnote 4). In Fabrica De Muebles Puerto Rico, 107 NLRB 905 the Trial Examiner decided that an existing contract between an employer and an earlier -bargaining agent did not afford the employer a lawful reason for refusing to bargain with a newly certi- fied union. After the issuance of the Trial Examiner's report the employer and the newly certified union signed a bargaining contract . In view of the new contract the Board (Chairman . Farmer and Member Rodgers ; with Member Murdock dis- senting), "without passing upon the Trial Examiner's findings, conclusions, or rec- ommendations," dismissed the complaint, on the theory that the basic issue had be- come moot. In his dissenting opinion Board Member Murdock indicated that in his view an existing contract between an employer and an earlier bargaining agent is not a lawful reason for restricting bargaining with a newly certified union. In another recent CA case (Hexton Furniture Company, 111 NLRB 342) the Board cited with approval the American Seating Company case (see footnote 5).- However, in the Hexton case the Board did not pass upon the issue involved ' herein. In the opinion of the Trial Examiner the American Seating Company case is the controlling decision herein and the Trial Examiner rejects Respondent 's contentions noted above. Respondent further contends that by reversing the principle announced in the Quaker Maid case, supra (as was done in the representation case involving parties who are also parties herein ), and by finding an unlawful refusal to bargain herein (and thus that the existing contract negotiated with the IAM is not binding on the production and maintenance employees ), the Board would be making an unlawful retroactive application of its rules which would affect accrued rights and thwart the policy of the Act. The Board's reasons in American Seating Company, supra, for rejecting the contention that the contract with an earlier bargaining representa- tive was binding upon a newly certified union requires a rejection of this conten- tion. See also N. L. R. B. v.1. I. Case Company, 134 F. 2d 70, 72 (C. A. 7), affd. 321 U. S. 322; which was cited by the Board in footnote 22 in the American Seating Company case. Respondent's contentions, noted in this paragraph , are hereby rejected. The IUE-CIO contends that Respondent's position, that the IUE-CIO was obli- gated by the terms of the contract with the IAM, was raised in bad faith to defeat, or at least delay, Respondent's obligation to bargain with the IUE-CIO. It is noted that Counsel for the General Counsel does not make a similar contention. (See Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, footnote 10.) Fur- thermore, if the American Seating Company case is controlling herein, and the Trial Examiner believes it is, the good or bad faith of Respondent is not material. Ac- cordingly, the Trial' Examiner is not ruling upon this contention of the IUE-CIO. In view of the foregoing the Trial Examiner concludes and finds that the con- tract with the IAM did- not afford Respondent a lawful reason for its actions at the conferences for negotiation purposes held on September 17, October 7, October 15, October 19, and November 16, 1954, and that by its conduct at these conferences Respondent refused to bargain with the IUE-CIO in violation of Section 8 (a) (5) and (1) of the National Labor Relations Act, as amended, herein called the Act. ULTIMATE FINDINGS AND CONCLUSIONS In summary, the Trial Examiner finds and concludes: 1. Respondent -is engaged in commerce within the meaning of the Act .4 Respondent is an Illinois corporation having its principal office and place of business In Chicago , Illinois , where it engages in the manufacture of composing room equipment. Its annual purchases of raw materials , consisting chiefly of steel, brass, copper, and grey 730 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD . 2. International Union of .Electrical, Radio and Machine Workers, CIO, and its Local 1024, are, and at all times herein mentioned have been, labor organizations within the meaning of the Act. ' 3. • All production and factory maintenance employees at Respondent's Chicago, Illinois,, plant, including :pantograph production machine operators, but. excluding toolmakers, machinists, engineering employees, draftsmen, type face, design depart- ment employees, professional employees, office employees, messengers, guards, watchmen, foremen, assistant foremen, foreladies, assistant foreladies, chief shop timekeeper, management personnel, and all other supervisors as defined,in the Na- tional Labor Relations Act, as amended, constitute and at all times material herein did constitute a unit appropriate for the purposes of collective, bargaining within, the meaning of Section 9 (b) of the Act. 4. At all times since on or about July 26, 1954, the IUE-CIO has been the ex- clusive representative of all employees in the aforementioned unit for the purposes of- collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment., - ; 5. The activities of Respondent (outlined in this report) occurring on and after September 17, 1954, establish that Respondent refused to bargain with the IUE-CIO within the meaning of the Act. , 6. The aforesaid unfair labor practices occurring in connection with the opera= tions of Respondent's Chicago plant, 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. • 7. By the aforesaid refusals to bargain Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and '(1) and.Sec= tion 2 (6) and (7) of the Act .5 [Recommendations omitted from publication.] • , APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National,Labor Re' lations Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with International Union of Electrical, Radio and Machine Workers, CIO, as the exclusive bargaining rep- resentative of all employees in the bargaining unit described below, in respect to wages, rates of pay, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: 'All production and factory maintenance employees at the Chicago, Illinois, plant, including pantograph production machine operators, but excluding tool- makers, machinists, engineering employees, draftsman, type face design de- partment employees, professional employees, office employees, messengers, guards, watchmen, foremen, assistant foremen, foreladies, assistant foreladies, chief shop timekeeper, management personnel, and all other supervisors as defined in the National Labor Relations Act, as amended. LUDLOW TYPOGRAPH COMPANY, Employer. Dated---------------- By---------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. iron castings, amount In value to more than $1,000,000 of which approximately 75 per- cent represent shipments to it from points outside the State of Illinois Respondent's annual sales of finished products amount in value to more than $5,000,000 of which ap- proximately 80-percent represent shipments to points outside the State of Illinois. s In view of the foregoing, Respondent's motion to dismiss (made in the answer to the complaint) is denied