Gaylord Printing Co., Inc.

510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described in section III, 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 thereof. V. THE REMEDY Having found that the Union violated Section 8(b)'(4)^(i) and (ii) (B ) of the Act, it will be recommended that the Union cease and desist therefrom and take certain affirmative action designed Ito effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent, International Brotherhood of Electrical Workers, Local No. 59, is a labor organization within the meaning of Section 2 ( 5) of the Act. 2. Caliber Construction, Home Plumbing, Kobey Luck , Carrier-Boch, Texas Auto- matic Sprinkler, and Corisp and Vaughn are persons engaged in an industry affecting commerce within the meaning of Section 8(b)(4) of the Act; and Carrier-Boch and Texas Automatic are also engaged in commerce within the purview of the Board's jurisdictional standards. 3. By picketing the Spartan job, the Respondent has induced and encouraged employees of subcontractors, Home Plumbing, Kobey-Luck, Carrier-Boch, Texas Automatic, and Corisp and Vaughn to engage in a strike or a refusal in the course of their employment to perform services, and has restrained and coerced Caliber Construction with an object of forcing or requiring Caliber Construction to cease doing business with Andersen , and has thereby violated Section 8(b) (4) (i) and (ii)(B) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Gaylord Printing Co., Inc. and Detroit Printing Pressmen and Assistants' Union No. 2, International Printing Pressmen and Assistants' Union of North America, AFL-CIO and Local 9, Amalgamated Lithographers of America , Party to the Con- tract. Case No. 7-CA-3085. January 24, 1962 DECISION AND ORDER On October 16, 1961, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. He also recommended dismissal of the com- plaint concerning an alleged 8(a) (3) violation.' Thereafter the Gen- eral Counsel and Local 9, Amalgamated Lithographers of America, the Party to the Contract, each filed exceptions to the Intermediate Report and supporting briefs. 1 The Trial Examiner found no 8(a ) ( 3) violation for lack of evidence that the union- security provisions of the contract , which he had found to be unlawful , had been applied to any individual employee. We do not reach that question In view of our dismissal of the complaint in its entirety. 135 NLRB No. 58. GAYLORD PRINTING, CO.,•INC, 511 Pursuant to the provisions -of Section 3 ('b) of the Act, the Board has delegated its powers in connection with this case to.a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and, for the reasons set forth below, concludes that the complaint should be dismissed in its entirety, contrary to the recommendations of the Trial Examiner as to the 8(a) (1) and (2) allegations. 1. The complaint does not allege the appropriate unit for bargain- ing and the Trial Examiner made no finding, stating that the facts disclosed were inadequate. We disagree. The record amply sup- ports a finding that the Employer's lithographic preparatory depart- ment consists of the only, unrepresented production employees in its plant, hence constitutes a residual unit appropriate for bargaining. We so find. 2. We find merit in the exception of the Lithographers, the Party to the Contract, that the Midwest Piping doctrine 2 is inapplicable to the facts of -this case. So far as this record shows, the claim made in September 1959 by the Pressmen, the Charging Party herein, to rep- resent- the employees of the Employer's new lithographic preparatory department appears to have been jurisdictional in character rather than a claim of then majority representation among the employees. Assuming .the latter, however, the claim was a stale one as it was made approximately 16 months before the Employer recognized the Lithog- raphers and was not renewed thereafter. Where there are rival unions and no representation petition on file, as there was none here, the Board has -recognized the necessity of an "active and continuing claim" as a bas is for holding that a real question of representation exists in the face of which an employer may not recognize another union.' We see no basis in this record for finding that the Pressmen's claim was an active and continuing one at the time of the February 3, 1961, contract with the Lithographers. 3. There remains the question whether the Employer nevertheless violated Section 8(a) (3), (2), and (1) of the Act by signing a union- security contract with the Lithographers because, as contended by the General Counsel, that Union no longer represented a majority of the employees in the lithographic preparatory department on February 3, 1961. The Trial Examiner found, and .we agree,.that the department was made up of Wierzbicki, Mooney, and Cook on January 26, 1961, the date on which Wierzbicki and•Mooney struck because of the Employ- 2 Midwest Piping A Supply Co , Ino , 63 NLRB 1060. 3 See Novak Logging Company, 119 NLRB 1573, 1574. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er's continued refusal to recognize their representative. Thus the Lithographers represented a majority of the employees in an appro- priate unit on that date. One week later, when the contract here in question was signed, the department still consisted of three employees, Hagenjos and Wood having been hired "temporarily to fill" the vacancies of Wierzbicki and Mooney .4 The Employer's president testified that he signed the contract because the Union represented a majority and his "depart- ment ground to an effective halt" when the Union "pulled the men away." After signing, he asked the union representative when he could have his men back, and was told that Mooney would beback in a day or so, but that Wierzbicki had been "reassigned" and the Union would "find another man." Thus the Union's demonstrated majority of two out of three on January 26 had become one out of three 1 week later, on February 3 when the contract was signed, unless it can be said that the Union had a constructive majority although not an actual majority on the later date. We think the Union had such a majority and so find on this record. The record shows that the Employer denied recognition requests by the Lithographers for more than a year,' culminating in the final such request as exemplified by the strike of the two members constituting the majority on January 26, 1961. In these circum- stances we conclude that the Employer in effect refused to bargain with the Lithographers on the January 26 date, thus the postrefusal loss of majority was directly attributable to the Employer and the Union was entitled to claim a constructive majority on February 3 when the Employer called it in and signed a contract in order to get the majority in the unit to return to work.' We find, therefore, on this record that the Lithographers, which clearly had an actual majority in an appropriate unit on January 26 when Wierzbicki and Mooney struck because of the Employer's effec- tual refusal to bargain with their Union, retained that majority con- structively on February 3,1961. Thus, when the contract was signed, the Union was a majority representative in an appropriate unit within the meaning of Section 9(a) of the Act, and it follows that the Em- ployer in signing the contract in the circumstances here present not only did not violate Section 8 (a) (3) but also did not assist the Union 4 The Trial Examiner implies that Gerchow, an offset pressman , had also been added to the department, but his assignment to work there was clearly on a temporary basis by his own testimony. s The first request was made on November 15, 1959 , when the Lithographers left a copy of a proposed contract. 6 Compare Local 908, International Brotherhood of Teamster8, etc. (Sierra Furniture Co.), 125 NLRB 159, 161 , where the Board came to a contrary conclusion in dealing with the defense to an 8(b) (1) (A ) allegation because, unlike the situation here, there was no actual majority on the earlier date. GAYLORD PRINTING CO., INC. 513 in violation of Section 8(a) (2) or interfere with the rights of its em- ployees in violation of Section 8 (a) (1). Accordingly we shall dismiss the complaint. [The Board dismissed the complaint.] MEMBER RODGERS concurring : I concur in the result. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10 (b) of the National Labor Relations Act, as amended, 29 U.S.C. Section 151 , et seq., herein called the Act. Detroit Printing Pressmen and Assistants' Union No. 2, International Printing Pressmen and Assistants ' Union of North America, AFL-CIO, having filed an original and amended charge against Gaylord Printing Co., Inc ., herein called the Respondent or the Company, the General Counsel of the National Labor Relations Board, on behalf of the Board , by the Regional Director for the Seventh Region, on July 18, 1961 , issued a complaint together with notice of hearing, the complaint charging that Gaylord Printing Co., Inc ., has engaged in and is engaging in unfair labor practices affecting commerce in contravention of Section 8(a)(1),(2), and (3) of the Act. Local 9, Amalgamated Lithographers of America is named in the complaint as Party to the Contract, hereinafter discussed.I The Respondent filed a timely answer to the complaint, effectively denying the violations alleged therein and setting up an affirmative defense , discussed below. Local 9 did not appear as such , although its president, Frank B. Kelly, appeared as an individual, represented by counsel, and testified as a witness. On the issues framed by the complaint and the answer , this case was heard by Arthur E. Reyman, the duly designated Trial Examiner , at Detroit, Michigan, on September 5, 1961 . At the hearing, each party was afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues, and each wasafforded full opportunity to argue orally upon the record, to file proposed findings of fact and conclusions , or both, and to file briefs. Briefs filed on behalf of the Respondent and the General Counsel have been carefully con- sidered. Upon the entire record in the case, from my observation of the witnesses, and after careful consideration, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF GAYLORD PRINTING CO., INC. The Respondent, Gaylord Printing Co., Inc., is, and has at all times material herein been, a corporation duly organized under and existing by virtue of the laws of the State of Michigan, during which times the Respondent has maintained its principal office and place of business at 14603 Wyoming Avenue, in the city of Detroit, State of Michigan , having during all these times continuously engaged at its said place of business in providing and performing printing, lithographic, and related services . During the year immediately preceding the issuance of the com- plaint herein, which period is representative of all times material hereto, the Re- spondent in the course and conduct of its business operations , purchased, trans- ferred, and delivered to its Detroit, Michigan, place of business, paper, ink, plates, film, and other goods and materials , valued in excess of $90 ,000, of which goods and materials valued in excess of $78 ,000 were transported to said place of business directly from suppliers and distributors located in States of the United States other than the State of Michigan. During the same year the Respondent in the course and conduct of its business operations, printed, sold and distributed from its Detroit, 1 Detroit Printing Pressmen and Assistants' Union No. 2, International Printing Press- men and Assistants' Union of North America, AFL-CIO, may hereinafter be called Local 2 or the 'Charging Party ; and Local 9, Amalgamated Lithographers of America, may be hereinafter referred to as Local 9 or Party to the Contract. 634449-62-vol. 135--34 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michigan , place of business, printed matter valued in excess of $378,000, of which printed matter valued in excess of $93 ,000 was shipped from its place of business directly to customers located in States of the United States other than the State of Michigan. The Respondent is now, and at all times material hereto has been , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Detroit Printing Pressmen and Assistants ' Union No. 2, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, and Local 9, Amal- gamated Lithographers of America, each is, and has been at all times material hereto, a labor organization within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES The Respondent is engaged in the business of providing commercial printing services on special orders from customers . Its printing shop utilizes letterpresses and offset presses. It employs some 18 'to 20 persons other than supervisors and officers and presently deals with 4 different labor organizations as representatives of 4 separate units of employees. Four or five employees in the bindery department are covered by a collective-bargaining agreement between the Respondent and De- troit Bindery Workers Union No. 20; the three or four employees in the composing room are presented by a -local of the International Typographical Union; five or six employees in the pressroom are represented by Detroit Printing Pressmen and Assistants' Union No. 2 .2 These agreements were in effect ' at the time of the issuance of the complaint herein and had been in effect for a considerable period of time prior thereto. As set forth in the complaint, the Respondent entered into an agreement with Local 9, Amalgamated Lithographers of America, covering conditions of employ- ment of certain of its employees engaged in work which has been described as lithographic preparation (litho prep). This agreement, executed -by representatives of the respective parties, was entered into on February 3, 1961. It provided that the employer recognize Local 9 as the "sole bargaining agent of the employees in its Lithographic Preparatory Department" and that ". . . all the terms and condi- tions of the current contract with the Employing Lithographers' Association of De- troit, Michigan, shall be forthwith applied to the employees covered by this agree- ment and shall be deemed a part of this agreement as set forth above ." The termina- tion date of the February 3 agreement was set for May 31, 1962 . This agreement is a one-page document wherein the Respondent recognizes the Union as the sole bargaining agent of the employees in its lithographic preparatory department, and the terms of the collective-bargaining agreement between Local 9 and the Employ- ing Lithographers' Association of Detroit , Michigan, are incorporated by reference. This master oollective,bargaining agreement incorporated 'by reference contains a union-security clause which requires the employees in the "litho prep " department as a condition of continued employment , to become and remain members in good standing of Local 9 after the 30th day following February 3 and that the Respondent may be required to terminate the employment of an employee if, after notice from Local 9, he refuses to apply for membership in Local 9 ; and that Respondent upon request of Local 9, may be required to discharge any employee if such employee becomes a member in bad standing of Local 9 by reason of nonpayment of dues or initiation fees. It is further asserted in the complaint that the agreement of February 3 was en- tered into at a time when Local 9 "did not represent a majority of the Respondent's employees in an appropriate bargaining unit. .. . The complaint does not set forth a description of what should be or should have been an appropriate bargaining unit at the time the agreement of February 3 was made, nor do the facts disclosed show what such an appropriate unit should have been or now should be. Within the pleadings the Respondent, by counsel, says ". the fact to be that at such time as Respondent recognized Amalgamated [Local 9] as bargaining rep- resentative of certain employees and executed an agreement with Amalgamated, it represented a majority of Respondent's employees in an appropriate bargaining unit and no question concerning representation of the employees in such unit then existed." 21t was testified without contradiction that Local 2 , the Charging Party, holds from 100 to 110 contracts with employers in the city of Detroit covering pressrom, lithographic, and other work covering printing pressmen , assistant printing pressmen , cameramen , plate- makers, and strippers , all within the Detroit area. GAYLORD PRINTING CO., INC. 515 Prior to the month of September 1959, the Company purchased its lithographic plates from outside shops. According to the testimony of Elery P. Worden, president of Gaylord, it was decided during that month that the Company set up, and it did set up, a lithographic preparatory department and began to make its own plates. These plates, used on Respondent's offset presses, are made by photographing the customers' artwork, developing the negative, laying out or stripping, opaquing, and the final burning of a presensitized plate. The department when first set up, and now, occupies space on the second floor ,of the Company's plant, separate and apart from the other operations performed in the plant. Neither the bindery employees nor the printers are involved in this dispute. Essen- tially, the questions to be resolved here are (a) whether or not Local 9 legally repre- sented a majority of the employees of the Respondent in an appropriate unit on February 3 and (b), whether or not there was a conflicting claim of representation between Local 2 and Local 9 at the time when the Company recognized Local 9 as the bargaining representative of its employees in the lithographic preparatory department. When the Company set up the lithographic preparatory department, there was no collective-bargaining agreement in existence which was intended- to or did cover the employees in this new department. Some weeks after the organization of this new department, Clarence G. Schroeder, business agent for Local 2 of the Pressmen's Union, telephoned President Worden to request a meeting with him together with a representative of the Photo Engravers Union. Such a meeting was held and present were President Worden and his at- torney, Mr. Tracy, William Krey, business agent for the Photo Engravers Union, Schroeder, and an International representative representing Pressmen's Local No. 2. The question discussed at that meeting was whether or not the Photo Engravers, who had an interest in the craft work or some of the craft work being done in that department, or the Pressmen who also had an interest in that Local 2's contract covered pressroom employees, some of which from time to time had been used in the new department, 'should- be accorded recognition as, having jurisdiction over the work in the new department. According to the testimony of Schroeder: We discussed the matter thoroughly; and Mr. Worden indicated that the department was not in complete operation as yet; there was a question raised by Mr. Connors, I believe, as to whether the Pressmen's Union could supply the necessary craftsmen for that department. - I believe the general feeling at the- when our meeting adjourned was that both sides would take a wait-and-see attitude as to whether we could service this organization. Schroeder went on to testify that Local 2 frequently was called upon for pressmen and the local also supplied some persons who worked in the preparatory department. He said he was not too concerned with pushing for a contract or a supplemental agree- ment to cover the preparatory department employees because he felt that with the advantage Mr. Worden would have. of being able to take a man' from his pressroom and employ him in his platemaking department, when the occasion required, was an advantage that he would not, overlook. At this meeting Schroeder for Local 2, ten- dered to Respondent a supplemental agreement seeking to extend the recognition of his union to the new department. The Respondent refused to execute this supple- mental agreement, and denied recognition to both Local 2 and the Photo Engravers. For the next year, approximately, the lithographic preparatory department was op- erated on a nonunion-contract basis. In the last quarter of the year 1959, when the Respondent decided to set up its own "litho prep" department, Bernard Wierzibiki was engaged to assume, with the assistance of James Mooney, a cameraman, and Betty Jane Cook, a lithographer, the responsibility for the work to be done in the new department. On November 14, 1959, and March 10, 19, and September 22, 1960, Frank B. Kelly, a representative of Local 9 requested recognition from the Respondent of his union as the representative of the employees in the lithographic preparatory depart- ment for purposes of collective bargaining. On each occasion, the Respondent refused such recognition. According to Kelly, a total of 11 members of Local 9 worked from time to time in that department and in January 1961, 2 of the 3 employees in the "litho prep" department, Wierzibiki and Mooney, were members of Local 9. On or about January 26, 1961, Local 9 through Kelly requested Mooney, and Wierzibiki to refuse work pending the recognition of Local 9 by the Respondent, Mooney advising the Respondent that the reason for their leaving was that the Respondent refused to sign a contract with Local 9. Alan Hagenjost, a member of Local 2, was hired for work in the "litho prep" department on or about January 27, 1961, to work as a stripper or layout man. About this time William C. Greshow, a member of Local 2, 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was assigned to the new department, where he engaged in platemaking. Previously, during the term of his employment, he did offset printing. Maurice Wood, who started to work in the "litho prep" department on February 2 or 3, 1961, worked for about a week as a cameraman and was discharged as incompetent. Wood was a member of Local 2. It appears, therefore, that on January 26, 1961, Wierzibiki and Mooney were employed, both members of Local 9, as was Betty Jane Cook who was not affiliated with either Local 9 or Local 2. It appears further from the testimony of the witnesses Worden, Hagenjost, Wood, and Gershow that on February 3, the date the Respondent entered into its agreement with Local 9, there were on the payroll Betty Jane Cook, Alan Hagenjost, William Gershow, and Maurice Wood.3 The circumstances surrounding the signing of the agreement between the Respond- ent and Local 9 on February 3, 1961, were these: President Worden telephoned Kelly of Local 9 and asked him to return Mooney and Wierzibiki to work, whereupon Kelly called on Worden, reminded the latter of the number of times recognition had been demanded, repeated that Mooney and Wierzibiki out of the three employees employed at the time Mooney and Wierzibiki went on strike were represented by his union, and again requested the signing of an agreement. Worden acquiesced and did sign that agreement, again asking if he could have his men returned. Kelly told him that Mooney would return to work but that Wierzibiki had found other work with the Ford Motor Company and would have to be replaced. Kelly did not claim to represent Hagenjost and Betty Cook, the other two employees at work on that day. Betty Cook applied for membership in Local 9 on February 6, 1961; Mooney returned to work on February 6? The General Counsel sets the date of February 3, 1961, as the significant date when the Respondent violated the Act by entering into the agreement of that day with Local 9. He contends that the record clearly shows that on that day Local 9 was a minority group within the lithographic preparation department and therefore the employer had no right to recognize Local 9 as the representative of the em- ployees employed therein on that day or thereafter. The Respondent disagrees and argues with force that the date on which the majority status of Local 9 within the lithographic preparation department (if the employees therein constituted an ap- propriate unit for the purposes of collective bargaining) must be January 26, 1961, on which day two of the three employees within that department concededly were members of Local 9. The Respondent argues that the date of demand for recognition was not February 3 but January 26, the- day on which Local 9 took its members in the lithographic preparatory department out on strike to enforce its previously made and continuing demand for recognition. This argument gains some support in the decision of the Court of Appeals for the Second Circuit in Scobell Chemical Company, Inc., v. N.L.R.B., 267 F. 2d 922, 925. This argument of the Respondent is strengthened by the fact that established practice between the Com- pany and three other unions is shown by prior contractual agreements covering the bindery employees, the printers, and the pressmen. No question seems to be raised here by the General Counsel as to the appropriateness of each one of these three units of employees for collective-bargaining purposes. The General Counsel says that the lithographic production unit is the traditional unit found to be appropriate in the industry; that the employees in Respondent's "litho prep" department performed the work requisite for the operation of the offset presses and engaged in this production (on February 3, 1961) where employees who were actually assigned to the department were assisted by offset pressmen who in the regular course of their employment at times also did lithographic preparation work.5 It is said that the work product of the "litho prep" department does not stand by itself but is used in the totality of the operation of Respondent. The General Counsel says further that even if Respondent's arguments are to be accepted and it 3 Hagenjost testified that he applied for membership in Local 9 in April 1961. One Otto Wetzel, employed as a cameraman in the "litho prep" department, quit during the month of January 1961. 4 The union-security clause referred to in the February 3, 1961, agreement has never been enforced in the sense that any employee has been discharged under any of its provi- sions nor has any employee ever been required to join Local 9 The agreement does not provide for checkoff of union dues. 5 As noted, the pressmen used in the "litho prep" department from time to time were members of and were represented by Local 2 under its agreement with the Respondent governing the employment of all pressmen. GAYLORD PRINTING CO., INC. 517 is granted that Wierzibiki and Mooney were employed in the lithographic prepara- tion department on February 3, it would not materially change the fact that Local 9 did not represent a majority of the employees in the department on February 3 when recognition was granted to Local 9 and a union-security contract was executed but, at best, Local 9 represented two of the four employees if it be assumed that "litho prep" department unit is the appropriate unit as is claimed by the Respondent-"the undersigned contends that the true and traditional unit is not a fragment of the litho- graphic production unit but the total one"-the conclusion therefore must be that the lithographic preparatory department without the offset pressman is not an appropriate unit for collective bargaining. After the meeting between representatives of the Company, the Photo Engravers Union, and Business Agent Schroeder for Local 2 late in the year 1959, the Photo Engravers seem to have bowed out of the picture, and, further, Local 2 seemed content to wait and see what would happen without renewing its demand for recognition-that is, until after the Company and Local 9 had entered into the agreement on February 3, 1961. Thus, during the interim period November 1959 to February 1961, the Company's employees in the "litho prep" department were not in fact represented by a collective-bargaining representative as such. In Midwest Piping & Supply Co., Inc., 63 NLRB 1060, the Board laid down the rule that upon presentation of a rival or conflicting claim raising a real question of representation an employer may not bargain collectively with an incumbent union or any other union until the question concerning representation has been settled by the Board. In the circumstances of this case, did a real question of representation exist at the time of the execution of the contract of February 3, 1961, within the Midwest Piping doctrine? I think such a question did exist. It seems to me that after Kelly had called Mooney and Wierzibiki out on strike on January 26 that the Company should have communicated the fact to Local 2 and asked its representative whether or not that local still desired to become the collective-bargaining representative of the employees in the "litho prep" department. Had the answer of Local 2 been in the negative, no question would have been pre- sented. Had it been in the affirmative, then the question could readily have been resolved in accordance with regular Board procedure, as exemplified by the decision of the Board in Printing Industry of Delaware, 131 NLRB 1100. It will be remembered that the agreement proposed by Schroeder to President Worden in the latter part of 1959 constituted in effect a request that the employees in the new department be included in the already existing unit governed by contract between the Respondent and Local 2; and that there was a question at the time as to whether Local 2 could provide the help needed in this new department. The record is clear that thereafter Local 2 members employed at the plant as offset pressmen worked in the new department and also that Local 2 provided employees, Hagenjost and Gershow among others, who were given full-time work in the department. Because at the time of the strike on January 26 and the signing of the agreement of February 3, 1961, there was still the unsettled claim of Local 2 to represent the employees in the lithographic preparatory department, which Local 2 claims, should include offset pressmen, and because the unit question has never as yet been decided, I find that the Respondent violated the Act within the meaning of Section 8(a) (2) by the recognition of Local 9 as bargaining representative in the face of the con- tinuing claim of Local 2. I find a real question concerning representation existed at the time the Respondent recognized Local 9, within the meaning of the Midwest Piping doctrine. Having so found I also find that the Respondent violated Sec- tion 8(a)(1) of the Act, since a violation of Section 8(a)-(2) in itself tends to deprive employees of their free choice of a representative and interferes with their right to self-organization, to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. International Ladies' Garment Workers' Union, AFL-CIO v. N.L.R.B. and Bernhard-Altmann Texas Corp., 360 U.S. 731. The General Counsel asserts that a violation of Section 8(a)(3) of the Act occurred in the instant case by reason of the execution of the union-security clause referred to in the February 3, 1961, contract "with a minority union." There is no proof in the record herein that any individual employee was directly affected by the application of the union-security clause. I do not believe the mere reference in the February 3, 1961, agreement to the master contract containing the union-security clause constitutes a per se violation of Section 8(a)(3) and therefore make no findings in this respect. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR- PRACTICES UPON COMMERCE The activities of the Respondent set forth in section 'III, above, occurring in connection with the operation of Respondent described 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. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a) (2) and (1) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action. designed to effectuate the policies of the Act. Thus, having found that the Respondent has violated the provisions of Section 8(a) (2) and (1) of the Act by entering into the aforesaid agreement of February 3, 1961, with Local 9, Amalgamated Lithographers of America, the Trial Examiner will recommend that the Respondent cease recognizing Local 9 as the representative of its employees employed in its lithographic preparatory department unless and until such time as said Local 9 is certified as the representative of the employees of the Respondent in an appropriate unit. Upon the basis of the foregoing findings of fact, and on the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Detroit Printing Pressmen and Assistants' Union No. 2, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, and Local 9, Amal- gamated Lithographers of America , each is a labor organization within the meaning of Section 2(5) of the Act. 2. By entering into a written collective-bargaining agreement with Local 9, Amalgamated Lithographers of America, on February 3 , 1961 , covering the em- ployees of the Respondent in its lithographic preparatory department at a time when a real question of representation of such employees existed , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (2) and (1) of the Act. 3. 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.] Funkhouser Mills, Division of The Ruberoid Company and United Cement, Lime and Gypsum. Workers, Local Union 402. Case No. 10-CA-4275. January 24, 1962 DECISION AND ORDER On June 23, 1960,'Trial Examiner John H. Dorsey issued an Inter- mediate Report in the above-entitled case which affirmed his ruling made during the hearing at the close of the General Counsel's case dis- missing the complaint insofar, as it alleged that the. Respondent had violated Section 8(a) (3) and (1) of the Act by failing to recall, and by discharging, James E. Norrell. In his Intermediate Report, the Examiner found further that the Respondent had not engaged in and was not engaging in any of the other unfair labor practices alleged in the complaint, and recommended that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate 135 NLRB No. 56.