Amalgamated Lithographers of America

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the nature of the , unfair labor practices found to have been com- mitted, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 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. The Respondent, Sidney Seltzer . and Ralph Seltzer d/b/a G. & S. Electric Company, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Industrial Workers of Allied Trades Local 199, affiliated with Confederated Union of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All electricians, electricians helpers, and apprentices employed by Respondent, excluding office clericals, professional employees, and all supervisors as defined in Section 2 ( 11) of the Act, constitute and have at all times material to this pro- ceeding constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. On June 1 , 1960, and at all times since that date , the above-named labor organi- zation has been and now is the exclusive bargaining representative of all employees in the above-described unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment by virtue of Section 9(a) of the Act. 5. By refusing on June 2 , 1960, and at all times thereafter to bargain collectively with the aforesaid labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By threatening its employees with reprisals thereby interfering with, restrain- ing, and coercing them in the exercise of their rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. 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.] Amalgamated Lithographers of America and Local 78, Amal- gamated Lithographers of America and Employing Lithog- raphers of Greater Miami, Florida and Miami Post Company. Cases Nos., 12-CC-87, 12-CB-376, 12-CC-89, and 12-CB-376-2. March 1, 1961 DECISION AND ORDER Upon unfair labor practice charges filed on March 10, 1960, by Em- ploying Lithographers of Greater Miami, Florida, herein called the Employing Lithographers, and on April 6, 1960, by Miami Post Com- pany, herein called Miami Post, against Amalgamated Lithographers of America and Local 78, Amalgamated Lithographers of America, herein variously called the Respondents, Local 78, or the International, the General Counsel of the National Labor Relations Board, by the Regional Director for the Twelfth Region, issued a complaint and amended complaints alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within 130 NLRB No. 107. AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 969 the meaning of Sections 8(b) (3),18(b) (4) (i) and (ii) (A),2 and 2(6) and (7) of the Act. Copies of the complaint, charges, and notice of hearing were served upon the Respondents and the Charging Parties. With respect to the unfair labor practices, the complaint alleged that the Respondents had successfully induced employees to engage in a strike and refusal to work overtime with an object of forcing inclusion in a collective-bargaining agreement of clauses unlawful under Section 8(e), thereby violating Section 8(b) (3) and (4) (i) and (ii) (A). On May 19, 1960, Respondents filed an answer denying the material allegations of the complaint and asserting affirmatively that the Act relied on by the Board is unconstitutional.' Between June 11 and 13, 1960, all parties entered into a stipulation waiving a hearing before a Trial Examiner and the issuance of an Intermediate Report and Recommended Order, and agreeing that the Board may make findings of fact and conclusions of law on the basis of facts contained in the stipulation, the allegations in the first and second amendments to the complaint as to which no answers were filed, and those portions of the original complaint which are admitted in the answer. On July 19, 1960, the Board approved the stipulation and trans- ferred the case to, and continued it before, the Board. Thereafter the Respondents and Employing Lithographers of Greater Miami, Florida, filed briefs.' On November 21, 1960, the Board heard oral argument in Washington, D.C., in which all parties appeared and participated. Upon the basis of the stipulation and the entire record in the case, the Board makes the following : 1 Section 8(b) (3) provides : "It shall be an unfair labor practice for a labor organization or its agents- "(3) to refuse to bargain collectively with an employer, provided it is the repre- sentative of his employees subject to the provisions of section 9(a)." 2 The relevant portions of Section 8(b) (4) provide : "It shall be an unfair labor practice for a labor organization or its agents- "(i) to engage in, or to induce or encourage any individual employed by any per- son engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture , process, transport, or otherwise handle or work on any goods, articles, materials , or commodities or to perform any services ; or (ii ) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce , wherein either case an object thereof is : "(A) forcing or requiring any employer . . . to enter into any agreement which is prohibited by section 8(e)." 8 The contention that the Landrum-Griffin Act is unconstitutional is rejected as the Board must assume the constitutionality of the Act it is required to administer in the absence of a binding court decision to the contrary. Rite-Form Corset Company, Inc., 75 NLRB 174. & The parties have requested that the present case be considered at the same time as the California case (130 NLRB 985) as the issues in both cases are substantially identical. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Employing Lithographers of Greater Miami, Florida, is an em- ployer trade association whose members are engaged in lithography and related work in and around Miami, Florida. During the 1959 calendar year, the employer-members of the association received from sources outside the State of Florida goods and materials valued in excess of $100,000. Miami Post Company is engaged in operating a newspaper in Miami, Florida. During the 1959 calendar year, it purchased and received from sources outside the State of Florida goods and mate- rials valued at more than $50,000. The complaint alleges, the answer'admits, and we find, that Em- ploying Lithographers and the Miami Post are engaged in commerce within* the meaning of Section 2(6) and. (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Amalgamated Lithographers of America, and Local 78, Amalgam- ated Lithographers of America, .are labor organizations within the meaning of Section 2 (5) of the Act. III. THE, FACTS On or about September 1, 1957, Respondent Local 78, with the approval of the Respondent International, entered into a collective- bargaininghagreement with the Employing'Lithographer's effective to February 29, 1960. On December 29, 1959, Local 78 notified the Em- ploying Lithographers of its desire to terminate the existing agree= ment on the termination date and to meet for the purposes of negoti- ating a new collective-bargaining contract. Between January 20, 1960, and April 22, 1960, representatives of the Respondents and the Employing Lithographers met approximately 18 times in negotiating 'sessions. Until March 7, 1960, Miami Post was a member of Employing Lithographers. On that date it withdrew from membership and thereafter conducted separate negotiations with the Respondents for a new contract. Between March 7 and April 22, 1960, representatives of Miami Post and Respondents participated in approximately five contract negotiating sessions. Beginning with the session of February 17, 1960, Local 78 with the authorization and approval of the International has demanded during the course of bargaining negotiations that Employing Lithographers incorporate into new collective-bargaining agreements the following AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 971 clauses referred to as "struck work," "chain shop," "right to termi- nate," "trade shop," "refusal to handle," and "separability." STRUCK WORK SECTION 19. The company agrees that it will not render produc- tion assistance to any lithographic employer, any of whose plants is struck by any local of the Amalgamated Lithographers of America or the International, or where members of any such Local or the International are locked out, and accordingly agrees that in implementation of this purpose the employees covered . by this contract shall not be required to handle any lithographic work farmed out directly or indirectly by such employer, other than work which the employer hereiir customarily has performed for the employer involved in such strike or lock-out. CHAIN SHOP SECTION 20. Each Company agrees that its employees shall not be requested.to handle any work in the plant covered by this contract if in another lithographic plant which is wholly owned and controlled by the company or commonly owned and con- trolled, in any part of the United States or Canada, any Local of the Amalgamated Lithographers of America is on strike, or members of such Local or International are locked out. RIGHT TO TERMINATE SECTION 21. In the event the Company requests any employee to handle any work described in. Section 19 above, the Union, in addition to the other rights and remedies the employees and the Union have under this contract or the law, shall have the right in its discretion to terminate the contract forthwith by giving written notice to the company. TRADE SHOP SECTION 18. The parties agree that all the terms of this con- tract have been negotiated on the assumption that lithographic production work will be done under approved union wages and conditions. In the event the Company requests an employee to handle any lithographic production work made in any shop which was not under contract with the Amalgamated Lithographers of America and not authorized to use the union label of the Amal- gamated, then the Union in its discretion by notice in writing, may re-open the contract for negotiations as to the whole or any part thereof. In the event of failure to agree on all terms within 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 30 days after such re-opening, the Union shall have the right to' terminate the contract forthwith by giving written notice to the Company. (18a) Union trade shops must affix the Union label on all their products before sending them to any other shop. (18b) Finished lithographic press plates which are sent out of any plant (unless for regraining) shall have the Union label or the name of the plant in the plate, except that as to plates heretofore made this may be done by otherwise attaching the Union label or name of the plant to the plate. Any negatives or positives sent out of a plant and not bearing the Union label shall have the Union label or name of the plant on the proofs, envelope, container or wrapper. (18c) Upon request by the shop delegate the Company shall advise him of the source of any lithographic work brought into the plant from the outside. Such request shall not interfere with the normal production of the plant. REFUSAL TO HANDLE SECTION 22. The Company agrees that it will not discharge, discipline or discriminate against any employee because such employee refused to handle any lithographic production work which was made in a shop not under contract with the Amalgam- ated Lithographers of America or because such employee refuses to handle any struck lithographic work of the type described in Section 20. SEPARABILITY (23a) It is agreed that neither Section 18 (Trade Shop) or Section 22 (Refusal to Handle) shall be deemed effective or a part hereof unless and until it has been declared valid by the National Labor Relations Board or any court having jurisdic- tion over the parties hereto. Upon being declared valid, the parties hereto .agree to meet and negotiate these provisions and upon reaching an agreement they shall become effective.' In the event either of these provisions is held invalid by the National Labor Relations Board, then the parties agree to meet to negotiate substitute provisions therefor. The parties were unable to agree as to the inclusion of the above clauses in a collective-bargaining contract. Beginning on March 2, 1960, Local 78, with the authorization and approval of the International, induced the employees of the employer- members of Employing Lithographers to engage in a refusal to work 5 This sentence was first included in the Respondents' proposals of March 16, 1960. It was not part of the "Separability" clause contained in the proposals of February 17, 1960. AMALGAMATED LITHOGRAPHERS OF AMERICA, -ETC. 973 overtime notwithstanding the requirements of the employers' opera- ti.bns. On several occasions, Employing Lithographers requested-Re- spondents to lift the overtime ban, but Respondents refused to do so. With the authorization and approval of the International, Local 78 caused the refusal to work overtime to be converted into a full strike .by inducing employees of Miami Post on March 11, 1960, and of employer-members of Employing Lithographers on March 17, 1960, to walk out and refuse to perform any services for their respective em- ployers. Several days later Respondent set up picket lines at the struck establishments which have continued to date. Respondents have stipulated that an object of the acts and conduct described above was until April 22, 1960, to force or require Employ- ing Lithographers and Miami Post to enter into contracts containing the six disputed clauses referred to above and to compel acceptance of the language contained in said clauses. On April,5 and 15, 1960, the Regional Director filed separate peti- tions with the United States District Court for the Southern District of Florida for appropriate injunctive relief under Section 10(1). On April 21, 1960, Respondents entered into a stipulation, approved and signed by the district judge, wherein.Respondents agreed to, and did, withdraw the disputed contract demands for so long as the stipula- tion was in effect and was not modified by the court so as to permit such demands. Contentions of the Parties The General Counsel contends that. the "struck . work," "chain shop," "right to terminate," "trad shop," and "refusal to handle" clauses are illegal in that they would require employers to cease, or refrain from, or agree to cease or refrain from, handling, using, selling, transporting, or otherwise dealing in the products of other employers-or to cease doing business with other persons within the meaning of Section 8 (e) 6 of the Act. The General Counsel also 6 Section 8 (e) states : "It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement , express or implied, whereby . such employer ceases or refrains or agrees to cease or refrain from handling , using, selling, transporting or otherwise dealing in any of the products of any other employer , or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection ( e) shall apply;to an agreement between a labor organi- zation and an employer in the construction industry relating to the contracting or sub- contracting of work to be done at the Site of the construction ; alteration, painting, or repair of a building, structure , or -other work : Provided further,, That for the purposes of this subsection ( e) and section 8(b) (4) (B ) the terms "any employer," "any person engaged in commerce or an industry affecting commerce," and "any person " when used in relation to the terms "any other producer, processor, or manufacturer," "any other .employer," or "any other person " shall not include persons in the relation of a jobber, manufacturer , contractor, or subcontractor working on the goods or premises of the jobber or manufacturer -orperforming parts of an integrated process of production in the apparel and clothing industry : Provided further, That ' nothing in this Act shall prohibit the enforcement of any agreement which is within the foregoing exception." - 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contends that the "separability" clause fails effectively to defer the operation of the "trade shop" and "refusal to handle" clauses to which it refers. Finally, the General Counsel contends that by in- ducing employees employed by employer-members of the Employing Lithographers and of Miami Post to engage in a refusal to work over- time and a strike with an object of compelling the inclusion in a con- tract of the six clauses in dispute, Respondents have been forcing or requiring Employing Lithographers and Miami Post to enter into contracts which are prohibited by Section 8 (e) of the Act, in violation of Sections 8(b) (4) (i) and (ii) (A), and 8(b) (3) of the Act. "Respond"ents contend that the six clauses in dispute are not violative of Section-8 (e) of the Act, and that, accordingly, to force or require Employing Lithographers and Miami Post by picketing or other means to enter into contracts containing such clauses does not violate any provisions of the Act. Discussion A. Alleged 8(b) (4) (i) and (ii).(A) violation Struck Work The "struck work" paragraph contains two parts : a general state- ment that the contracting company will not render production assist- ance to any employer whose plant is struck by a local of the International, and an implementation clause which provides that in carrying out the above employees shall not be required to handle any lithographic work "farmed out" by such employer, other than work which the contracting employer has customarily performed for the struck employer. The general statement, if standing alone, would be unlawful because it embodies more than the "ally" doctrine 7 However, the general statement must be read together with, and in the context of, the im- plementation clause. According to the latter, employees are not to be, required to handle farmed-out struck work, unless the contracting employer has 'customarily performed such work for the struck em- ployer. We read the two clauses, the general with the particular, as embodying nothing more than the Board- and court-sanctioned "ally" doctrine which Congress clearly intended to preserve.8 As so con- strued, the "struck work" paragraph is lawful .9 7Douds v. Metropolitan Federation of Architects , etc., 75 F. Supp. 672 (S.D.N.Y.) ; N.L.R.B. v. Business Machine and Office Appliance Mechanics Conference Board, etc.,. 228 F. 2d 553 (C.A. 2). s Legislative History of the Labor-Management Reporting and Disclosure Act of 1959;. U.S. Govt. Printing Office, 1959, pp. 942, 1007, 1389. 9 The present clause is significantly different from the "struck work " clause in the. San Francisco case. In the latter the "struck work" clause precluded the contracting employer from doing not only farmed out "struck work," but also work customarily done AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. - 975 Chain. Shop This clause in substance recognizes the right of employees to strike if employees in another lithographic plant "wholly owned and con- trolled -by the company or commonly owned and controlled" are on strike or have been locked out. In the recent Alexander Warehouse case,10 the Board held that, where a dispute existed at one of three geographically separated plants of an employer, picketing at the plants were no dispute existed was lawful, primary activity. The above clause therefore merely embodies the union's statutory right, unless the reference to a company "commonly owned and controlled" extends the right to strike beyond the statutory permission, that is, to a situation where the company at which a primary strike occurs is not a single employer together with the contracting company at which the sympathy strike occurs. However, in the Dearborn Oil and Gas case," the Board said : - Generally speaking, in those unfair labor practice cases in which the- Board and the courts have held that a legal entity may be held for the acts of another, because both constituted a single employer, it appeared that both. were not only subject to common control, but also that a controlling ownership interest in both companies was held by the same individual or group of in- dividuals. [Emphasis supplied.] Centralized control of labor relations is a factor frequently stressed by the Board in finding common control of separate legal entities. Accordingly, we construe the "chain shop" clause as saying that a strike at the plant of the contracting employer in sympathy with a strike at the plant 'of another company which is a separate legal en- tity is permitted, provided that the two legal entities because of "com- mon-control" and "ownership," as the Board uses these terms, consti- tute a single employer within the meaning of 'the Act. Such a clause is therefore lawful. Trade Shop. The "trade shop" clause recites that the contract has. been negoti- ated "on the assumption that all lithographic production work will be done under approved union wages and conditions." It further states that, if the employer requests any employee to handle litho- graphic work made in any shop not under contract with a local of the International and authorized to, use the union label, the Union may for the struck employer . In the present case, the clause specifically preserves the em- ployer's right to continue to do work which the employer has customarily done for the struck employer. 10 International Brotherhood of Teamsters , etc. (Alexander Warehouse & Sales Com- pany), 128 NLRB 916. n Dearborn Oil and Gas Corporation, et al., 125 NLRB 645. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reopen the contract in whole or in part and terminate it in the event of failure to, agree. Other sections of the clause deal with affixing of the union label to work done in union shops. Respondents contend that the above clause contains neither an ex- press nor an implied agreement not to use the products of another employer. Section 8 (e) bans only "express or implied" agreements for the prohibited objective. The term "implied" is used in law as contrasted with "express" when the "intention in regard to the subject matter is not manifested by explicit and direct words, but is gathered' by implication or necessary deduction from the circumstances, the general language, or the conduct of the parties." 12 No particular words are necessary to establish an implied agreement. Neither will an express disclaimer necessarily negative the existence of such an agreement. It is all the circumstances which determine whether, not- withstanding the attempted disguise of. language, an agreement has in fact been made. When a clause reads that contract terms have been negotiated on the assumption that all work will be done under union conditions, and that in the event an employer requests an em- ployee to handle work done in a nonunion shop, the Union will have the right to reopen and terminate the contract, and further contains regulations as to the use of the union label on all products, the effect is precisely the same as if the employer had agreed in so many words that he would not handle nonunion products, which is prohibited by Section 8(e). Realistically no employer would undertake to handle such work if to do so would confront him with the possibility that his entire contract would be reopened for renegotiations.13 So far as the employer is concerned he would be subjected to the same sanction whether he expressly "agreed" not to handle nonunion work, or whether he submitted to the language in the proposed "trade shop" clause. If, on the happening of a certain event, precisely the same legal consequences occur, it is reasonable to infer that it is because of the violation of the same or a similar contractural undertaking. Moreover, Congress was intent upon outlawing "hot cargo" clauses no matter how disguised. Probably no language can be explicit enough to reach in advance every possible subterfuge of resourceful parties. Nevertheless, we believe that in using the term "implied" in Section 8(e) Congress meant to reach every device which, fairly considered, is tantamount to an agreement that the contracting employer will not handle the products of another employer or cease doing businesss with another person. We find that the "trade shop" clause contains an "implied" agreement not to handle nonunion products. 12 Black's Law Dictionary (4th ed. 1951 ), p. 888. See also 12 Am. Jur. 499. "Congress was aware of the coercive effect of a reopening clause. See Leg. Inst. op. off footnote 4 at p. 1708. AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 977 Respondents offered to prove that the "trade shop" clause was neces- sary because a change in the method of doing business by the employer could have such an impact upon the welfare of the union's member- ship as to require, from a legitimate union viewpoint, the considera- tion of new contractual arrangements. We reject this offer of proof. Economic necessity cannot justify violation of the Act.14 Congress did recognize that certain industries-construction, clothing, and apparel-had special problems which justified their exemption from the operations of Section 8(e) in certain respects. But, although Congress was aware of the existence of "hot cargo" clauses in the printing industry, it made no exemption for that industry.16 What Congress chose not to, the Board cannot, do. Moreover, although Respondents contend that the purpose of the "trade shop" clause is to protect various union welfare funds from possible financial jeop- ardy resulting from change in methods of operation, the reopening clause is not limited to such situations but gives the Respondents the right to reopen and terminate the contract as to all terms and conditions of employment and for every reason. Accordingly, we find that the proposed "trade shop" clause if adopted would violate Section 8 (e) of the Act. Right To Terminate and Refusal To Handle These clauses are intended to implement the "struck work" and the "chain shop" clauses respectively. The "right to terminate" clause provides that the Union shall have the right to terminate the contract forthwith in the event the employer requests an employee to handle "struck work" as defined. The "refusal to handle" clause states that the employer will not discharge or discipline an employee for refusal to handle lithographic production work which was made in a non- union shop or because the employee refused to handle struck work of the kind described in the "chain shop" clause. As we have found that the "struck work" clause is lawful, the "right to terminate" clause intended to give the Union a remedy for the breach of the former is equally lawful. However, the "refusal to handle" clause is unlawful because it is intended to implement not only the lawful "chain shop" clause but also the unlawful "trade shop" clause. Separability This clause provides that neither the "trade shop" nor the "refusal to handle" clauses shall be deemed effective until they have been de- 11 N.L.R.B. v. National Maritime Union of America, et at. (The Texas Company), 4175 F. 2d 686, 689-690 (C.A. 2), cert. denied 338 U.S. 954, rehearing denied 339 *U.S. 926. u Leg. list. op. cit. footnote 4 at p. 1581. 597254---61-vol. 130-63 978 DECISIONS OF- NATIONAL LABOR: RELATIONS' BOARD .clared valid by the Board or an appropriate court. It also provides ,for further negotiation. if the .clauses are declared valid or. invalid. Section 8 (b) (4) (A) prohibits strikes for the purpose of requiring an employer "to'enter' into any agreement which is prohibited by section 8(e)." , We have found above that the. "trade shop". clause :would be unlawful if agreed-to'by, the parties. Accordingly; a strike for the purpose, of 'forcing the einployer'to agree. to such a'provision. is unlawful under Section, 8(b) (4) (A). The. strike is not made lawful .by the "separability" clause. We are' not required to decide whether the clause in. question- would, effectively defer the,operation of the "trade shop" and "refusal to handle" clauses, if.the parties:agreed to .them. The complaint in this case alleges a violation of -Section 8 (b) -(4) (A) and not of 8(e). Whatever the ultimate, effect of the "sepa- rability" clause, the fact is that the Respondents did strike to compel the Charging Parties to agree to provisions in a contract which are prohibited by Section 8 (e). Accordingly, we find that.by inducing employees- of the employer members of Employing Lithographers and of. Miami Post, to engage in a refusal to work overtime and : iri a. full strike with an object.- of compelling inclusion in any collective-bargaining agreement of A he "trade shop" and "refusal to handle" clauses set out above, which are unlawful under Section 8(e), -Respondents violated Section 8(b) (4) (i) and (ii) (A) of the Act. i , .. . B. -8(b) (3)' violation ' Appropriate Units The complaint alleges, the. answer admits, and we find,.that the following units are appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act : (a) All lithographic (offset) production employees employed by all employer-members of Employing .Lithographers,. excluding all other employees, office clerical employees, .guards; and supervisors as defined in the Act. (b) All lithographic (offset) production employees .employed by Miami Post, excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. Majority Representation The complaint alleges, the answer admits, and we find, that since 1956 in the case of the Employing Lithographers, and since March 7'.1960, in the case of Miami Post, Respondent Local 78.'has been the majority representative'of employees in the aforesaid appropriate AMALGAMATED LITHOGRAPHERS -OF AMERICA, ETC. - 979, units,' and has been recognized as such representative by the Employ- ing'Lithographers,and Miami-Post 'for all purposes of collective bar=: gaining with respect'to rates of pay, wages, hours of employment, and other conditions of employment. Refusal. To Bargain For the reasons stated in the .San Francisco Amalgamated Lithog- raphers case," decided this -day, we find that by refusing to work' overtime and by striking for the purpose of forcing, the inclusion of the "trade, shop", and. "refusal to handle" clauses in any collective-' bargaining agreement Respondents violated Section 8 (b) (3) 'of 'the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES. ON COMMERCE The activities of the Respondents set forth .above have a close, inti- mate, 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. V. THE , REMEDY Having found that the- Respondents have engaged in unfair. labor: practices, we shall order them to cease and desist therefrom and to take certain affirmative action designed to effectuate, the policies. of the,, Act.' Upon the basis of the foregoing findings of, fact, and upon the entire record in the case, the Board makes the following CONCLUSIONS OF LAW 11. Employing Lithographers of Greater - Miami, Florida, and Miami Post Company are engaged'in commerce within the meaning.of Section 2(6) and (7) of the Act.' 2. Amalgamated Lithographers of America; and Local 78, Amal gamated Lithographers of America, are labor organizations within the meaning of Section 2(5) of the Act. 3: All lithographic (offset) production employees employed by em- ployer-members of Employing Lithographers of Greater Miami, Florida, excluding all other' employees, office clerical- employees,, guards, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b), of the Act. ' 26 Amalgamated Lithographera of America -(Ind.) and Local No. 17 of the Amalgamated. Lithographers of America (Ind.) (The Employing Lithographers , a Division of the Graphic Arta Employers Association et al. ), 130 NLRB 985. 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. All lithographic (offset) production employees employed by Miami Post Company, excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. Local 78, Amalgamated Lithographers of America, has been at all times material herein, and is, the exclusive representative of all employees in the aforesaid appropriate units for the purposes of col- lective bargaining in respect to rates of pay, wages, hours of em- ployment, or other conditions of employment. 6. By refusing to work overtime and by striking for the purpose of forcing inclusion of the "trade shop" and "refusal to handle" clauses in any collective-bargaining agreement, Respondents have vio- lated Section 8 (b) (3) of the Act. 7. By engaging in, and inducing and encouraging employees of employer-members of Employing Lithographers of Greater Miami, Florida, and of Miami Post Company to engage in, a refusal to work overtime and in a strike, and by threatening, coercing, or restraining the aforesaid employers by means of a refusal to work overtime, a strike, and picketing, for the purpose in both cases of forcing the' aforesaid employers to enter into an agreement containing the "trade shop" and "refusal to handle" clauses set out above, which are pro- hibited by Section 8 (e), Respondents have violated Section 8 (b) (4) (i) and (ii) (A) of the Act. 8. 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 entire record in this case and pursuant to Section 10(c) of the Act, as amended, the National Labor Relations Board hereby orders that Respondents, Amalgamated Lithographers of America, and Local 78, Amalgamated Lithographers of America, their officers, representatives, successors, agents, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Employing Lithogra- phers of Greater Miami, Florida, and with Miami Post Company, as the bargaining representative of employees in the previously stated appropriate units, by refusing to work overtime and by striking for the purpose of forcing inclusion of the "trade shop" and. "refusal to handle" clauses in any collective bargaining agreement. (b) Engaging in, or inducing or encouraging employees of em- ployer-members of Employing Lithographers of Greater Miami, Florida., and of Miami Post Company, to engage in, a. strike or refusal AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 981 to work overtime, or threatening, coercing, or restraining the aforesaid employer association and company by a strike, refusal to work over- time, and picketing, where in either case an object thereof is to force or require Employing Lithographers of Greater Miami, Florida, and Miami Post Company to enter into any agreement which is prohibited by Section 8(e). 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places in Respondents' business offices, meeting halls, and places where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix A." 17 Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by official representa- tives of Respondents, be posted by.-Respondents immediately upon receipt thereof and be maintained by them for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Twelfth Region signed .copies of the aforementioned notice for posting by members of the Employing Lithographers of Greater Miami, Florida, and by Miami Post Company, if the companies agree, in places where notices to em- ployees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by Respondents, as indicated, be forthwith returned to the Regional Director for disposi- tion by him. (c) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Decision and Order, of the steps taken to comply herewith. MEMBERS RODGERS and JENKINS, dhssentmg in part : We do not agree with our colleagues' holding that Respondents' proposed "struck work" and "chain shop" clauses are lawful under Section 8 (e) of the Act. Nor can we agree that Respondents' pro- posed "right to terminate" and "refusal to handle" clauses, insofar as they implement the "struck work" and "chain shop" clauses, are lawful. Our colleagues have arrived at the conclusion that the struck work and chain shop clauses are valid by giving them the narrowest con- struction possible, and by reading into the clauses nonexistent limita- tions. The former clause is supposed by. them to be.limited to "struck work" as that term is defined in Board decisions; the latter clause is supposed by them to be limited to typical "single employer" situations. "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." 982 DECISIONS OF - NATIONAL LABOR RELATIONS BOARD These constructions; in our opinion; torture the language in the pro- posed: clauses. - The first part ' of the struck work clause commits the signatory em- ployer to refrain from rendering "production assistance" to "any" -lithographic employer in difficulty with the Union. The second part provides that, "in implementation of this purpose," employees will not be required- to handle work ""farmed out 'directly or indirectly"- except that employees may be required to continue performing work which the signatory employer -"customarily has performed" for the struck employer. Our colleagues take pains to state that both. pro- visions of the struck work clause-must be read together. But then, in the'-guise of considering the "context of the implementation clause," they construe the, entire struck clause as if only the implementation language existed, and they conclude that the only limitation on the `signatory's freedom to do business with other persons is contained in the implementing language. This, the plain language of the proposed clause reveals, is not the case. - - It , is true that, under the proposed language of the struck work -clause, a signatory may continue to do work which it has customarily -performed for a struck employer. But it is also true, under the all- embracive language of the provision, that if, during a strike, the -signatory is asked by an employer "any of whose plants is struck" to do certain work, the signatory would be required to refrain from doing it-whether or not the work in:question was produced by the plant 'immediately concerned in- the - strike. Similarly, -under the broad sweep of the phrase "farmed out directly or indirectly," the signatory would"be required to refrain.from doing work of a kind which, before the onset-of the strike, the struck employer himself had not performed, but instead had given to a third person-to perform. So construed and applied,- Respondents' proposed struck work clause would extend the so-called ally doctrine.far beyond the point to which ,it has been extended in the past, either by this Board or by the courts. For, under existing precedent, an otherwise neutral employer or per- son may become an "ally" of a struck employer only by undertaking, by arrangement with the -struck employer, to perform work which would, but for the strike, have been performed by the striking em- ployees themselves. To say, then, as our colleagues do, that the clause in -question embodies nothing more than the "sanctioned `ally' doc- trine," is to say something which is highly inaccurate. As to the chain shop clause, we cannot find, as the majority has, that this clause is-so worded as to apply only to "single. employer" situa- tions. Common ownership and control-the descriptive - language used in the clause-are not by themselves` sufficient factors' warranting a.finding, of a single-employer, status,. particularly -where, as here,.,no AMALGAMATED LITHOGRAPHERS OF AMERICA,'ETC.. 983 minimum extent, of 'common 'ownership' and control is, specified. 'A' number of other factors must' be taken into account. For 'example, in Alexandria Warehouse d Sales Company, 128 NLRB 916, a case relied upon by the majority, the Board emphasized the common gen- eral supervision, the centralized. purchasing of supplies, and the in- tegration of operations, and there, unlike what_is within the contem- plation of the chain shop clause, all the plants involved were part of the same business entity.18 Our colleagues apparently recognize the deficiencies in the chain shop clause; or they would have no need to -engraft upon the clause their definition of a "single: employer." That our colleagues have oversimplified and vastly overstated the rule for determining whether another person, employer, or plant. may together with a 'signatory to the. proposed agreement constitute a "single employer" within the meaning of Board decisions relating to Section 8(b) (4), is graphi- cally demonstrated by the Roy and Bachman Machine cases.19 In these cases, in which Member Rodgers dissented and Member Jenkins did not participate; a majority of the Board found that apparently separate . employing entities were a single employer, relying on "common ownership and control." In each case the Board was reversed by the circuit court of appeals, in opinions, which emphat- ically rejected the doctrine here advanced by ' our colleagues a9 We would not rewrite the Respondents' chain shop clause` for them so as to make it legal, . but would. construe. it to mean' what it says- that it would apply to 'all situations ' where common ownership and control exist irrespective of whether the involved entities constitute a single employer. As the clause thus seeks to permit activity pro- scribed by the Act, we would find it unlawful. It follows' that to the extent that the' proposed refusal to handle clause applies to the struck work and chain shop clauses, it, too, runs afoul of Section 8.(e).. The same is true, of course, with respect to the, proposed right to terminate clause. In the latter connection, we note, parenthetically, that the right to terminate clause' is_ applicable where the "Company. requests any employee to handle any work described in Section 19 above [the struck work clause]." [Emphasis supplied.] This clearly makes the clause applicable not only,-as our colleagues construe it, where struck work, is concerned, but, also in 78 Contrary to the manner in which . our colleagues now. emphasize the' geographical, separation of the several plants in Alexandria Warehouse, supra, the decision in that case emphasized their "proximity to and integration with" the warehouse at which the dispute arose. 19J. G. Roy and Sons Company, 118 NLRB 286; Bachman Machine Company, 121 NLRB 1229. 40 J. C. Roy and Sons Company v. N.L.R.B., 251 F. 2d 771 (C.A. 1) ; Bachman Machine Company, a corporation v. N.L.R.B., 266 F. 2d 599 (C.A. 8). 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all the other situations referred to in the struck work clause itself including the case of work that is "customarily" performed. APPENDIX A NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF EMPLOYER- MEMBERS OF EMPLOYING LITHOGRAPHERS OF GREATER MIAMI, FLOR- IDA, AND OF MIAMI POST COMPANY Pursuant to a'Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that : WE WILL NOT refuse to bargain collectively with Employing Lithographers of Greater Miami, Florida, and with Miami Post Company, as the bargaining representative of employees in the respective appropriate units, by refusing to work overtime and by striking for the purpose of forcing inclusion of the "trade shop" and "refusal to handle" .clauses in any collective- bargaining agreement. WE WILL NOT engage in, or induce or encourage employees of employer-members of Employing Lithographers of Greater Mi- ami, Florida, and of Miami Post Company to engage in, a strike or refusal to work overtime, or threaten, coerce, or restrain the- aforesaid employer-association and company by a strike, refusal to work overtime, and by picketing, where in either case an object thereof is'to force'or require the aforesaid employer-association and company to enter into any agreement which is prohibited by Section 8 (e) of the Act. AMALGAMATED LITHOGRAPHERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------ (Representative ) (Title) LOCAL 78, AMALGAMATED LITHOGRAPHERS OF AMERICA, Labor Organization. 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-