Portland Stereotypers', etc., Union No. 48

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were terminated. Also, as previously noted, when McKnight was reinstated Respondent indicated a lack of resentment against union activity so long as it was carried on properly. Under these circumstances, it is believed that the Rubin Bros. doctrine is not applicable . Accordingly, I reject the General Counsel's contention. CONCLUSIONS OF LAW 1. Burnup and Sims, Inc., is engaged in, and during all times material was engaged in, commerce or in a business affecting commerce within the meaning of Section 2(6) and (7 ) of the Act. 2. Local Union No. 172 , Airline Supply Technicians, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent did not discriminate against Robert J. Davis, Joseph H . Harmon, and John P. McKnight in violation of Section 8(a) (1) and ( 3) of the Act, as alleged in the complaint herein. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case , I recommend that the complaint in this matter be dismissed in its entirety. Portland Stereotypers' and Electrotypers' Union No. 48 and International Stereotypers' and Electrotypers' Union of North America, AFL-CIO and Journal Publishing Co. and Oregonian Publishing Co. Case No. 36-CB-244. June 25, 1962 DECISION AND ORDER On October 18, 1960, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the Inter- mediate Report attached hereto. Thereafter, the Respondents, the Charging Parties, and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. On April 17, 1961, the Supreme Court of the United States issued its decisions' in N.L.R.B. v. News Syndicate Company, Inc., and other cases involving matters possibly relevant to this case,' and thereafter the Respondents and the Charging Parties filed supplemental briefs in the light of those decisions 2 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 Inter- 1 N.L.R.B. v. News Syndicate Company, Inc. and New York Mailers' Union No. 6, Inter- national Typographical Union, AFL-CIO, 365 U.S. 695 ; Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at. (Mechanical Handling Systems) v. N.L.R.B., 365 U. S. 651 ; Local 357, International Brotherhood ,of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express ) v.'N:L.R.B., 365 U.S. 667 ;- International Typographical Union, AFL-CIO (Haverhill Gazette) v. N.L.R.B., 365 U.S. 705. , 2 The Respondents' request for. oral argument is denied as, in the opinion of the Board, the. record, including the exceptions and briefs, adequately presents the contentions and the positions of the parties. 137 NLRB No. 97. PORTLAND STEREOTYPERS', ETC., UNION NO. 48 783 mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent they are consistent with the decision herein. 1. The complaint alleged, and the Trial Examiner found, that the Respondents had violated Section 8(b) (1) (B), (2), and (3) of the Act by adamantly insisting upon, during bargaining negotiations, and then striking for, certain terms and conditions in a new collective- bargaining agreement. More specifically, the Respondents were alleged to have violated Section 8(b) (1) (B) by insisting that the foremen of the stereotype departments, who represented the employers at early stages of the grievance procedure, be union members, to have violated Section 8(b) (2) by insisting upon four conditions, which, taken together, constituted an illegal closed shop and thus an attempt to cause, or causation of, discrimination within the meaning of Section 8(a) (3) ; to have violated Section 8(b) (3) by insisting upon all the above, plus further insistence, after the strike began, upon provisions that all employees who respected the Respondents' picket line be rehired, and that all contracts signed by the employers with all employee represent- atives have the same expiration date. The Respondent Local 3 has represented the employees of the stereo- type departments at both of the newspapers involved herein in a single unit for many years. A contract between the local and the employers was to expire on September 14, 1959. From August 24, 1959, until January 1960 the Respondents and the employers engaged in prolonged negotiations that continued during a strike that began on November 10, 1959, and was still current at the time of the hearing in this case in June 1960. Starting points for the negotiations were the Respondents' proposed new contract and the employers' counterproposal. From the Respond- ents' point of view the principal issues were economic; they sought higher wages and certain other additional benefits. The employers were concerned with economic issues too, from the point of view of cutting expenses and of more efficient utilization of manpower. They were also seriously concerned with possible liability under the then current Brown-Olds 4 doctrine of the Board, and therefore sought to achieve complete legality in employment arrangements. Negotiations dealt mainly with the matters that concerned the pub- lishers. It rapidly developed that the principal issues between the 8 The Trial Examiner treats both Respondents together . We agree with his ultimate conclusion that whatever liability attaches here attaches to both Respondents because of the extent of the Respondent International 's participation in the negotiations here. However, we note that it is the Respondent Local which has represented these employees. and which was the signatory to the last contract with the publishers. 4J. S. Brown-E. F. Olds Plumbing & Heating Corporation, 115 NLRB 594. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties were: (1) whether the foreman of the stereotype department could be required to be a union member; (2) the extent to which the bylaws and constitutions of the Respondents were to be incorporated in any new contract; ( 3) the manning of equipment; and (4) the right to substitute. Central to the complaint, in our view, is the contention that the position of the Respondents on these four issues was, basically, an insistence on closed-shop conditions in violation of the Act. We do not agree that such insistence has been shown, but before considering in detail the reasons for our conclusions in this respect, we deem it appropriate to eliminate certain factors from the case. The most important of these is reliance upon the alleged illegality of the Respondents' bylaws. The decision of the Supreme Court in News Syndicate 5 indicates that savings clauses are to be given their face value. Here the Respondents originally proposed the incorpora- tion of their constitutions and bylaws to the extent they did not con- flict with the Act. When the publishers sought a more specific listing of laws, the Respondents submitted such a listing, again adding that these laws were not to be changed other than to bring them into con- formity with the Act. These two positions were the only ones the Respondents took on this issue, and we are satisfied that there was, thus, no insistence on incorporation of illegal provisions. We there- fore reject the Trial Examiner's contrary finding, based on the law as he interpreted it before the decision in News Syndicate. Nor do we believe, in view of the above, that any improper implica- tions exist in the Respondents' position on manning. What was in- volved here was the question of the number of employees required to operate the publishers' machinery, and most particularly the number that would be required to operate a new machine, known as the M.A.N., that one of the publishers was planning to buy. The Respondents would not, for the greater part of the negotiations, agree that this could be operated by less than four men. Although this is the number that is required by the bylaws, the dispute between the parties, in this respect, was an economic one in that the basic concern of the Respond- ents was not connected with union membership but solely with the number of jobs that would exist. This was clearly an entirely proper subject of their concern. We therefore do not believe that the posi- tion of the Respondents on this issue tends to establish a demand for illegal conditions of employment. We turn then to the foreman and substitute issues. The Respond- ents sought to require union membership for foremen, but were agree- able to clauses that provided they would not be subject to union disci- pline for carrying out the instructions of the publishers in accordance with the contract. The publishers had no objection to the foremen's 8 N.L.R.B. v. Newa Syndicate Company, Inc., et at., 365 U.S. 695. PORTLAND STEREOTYPERS', ETC., UNION NO. 48 785 union membership as such ; their concern was with having it com- pulsory. As it is clear that the Respondents had conceded during negotiations that the foremen would not be subject to union discipline for the hiring of nonmembers, it would appear that a contract pro- vision requiring union membership for the foremen would not, under the decision of the Supreme Court in News Syndicate, be violative of Section 8(b) (2). We come, then, to the last element of the closed shop allegations-the Respondents' position on the substitute issue. The Trial Examiner, viewing this issue in connection with the other points on which he had found against the union, found here too that the Respondents were seeking conditions violative of the Act. For the reasons set forth below we do not agree. As set forth in the Intermediate Report, the substitute issue had two facets. The more important, as between the parties, was the question of who had first call on substitutes; the lesser issue was how one be- came a substitute. First call on substitutes refers to the existing prac- tice, at the time of these negotiations, whereby a journeyman stereo- typer could take time off without the approval of the foreman, if he provided a substitute. And the employers maintained a roster of regu- lar substitutes. In practice, substitution by the employees meant that if the employer required the services of substitutes, it might find itself obligated to pay overtime rates because all substitutes had been pre- empted, and men who had already worked five shifts would have to be used. To reduce costs in this respect, the publishers did not want to continue the unrestricted right to substitute, but instead would have required the employee to get the foreman's permission. The Respond- ents would not agree. The other aspect of this question turns on hire of new employees who would first be substitutes, before they could become regular em- ployees, or situation holders as they are called. It seems clear that prior to the events involved here, there had been no nonunion members working for the publishers in these departments. The question is whether the Respondents were insisting on a continuation of such conditions. We do not agree with the Trial Examiner that they were. The Respondents' original proposal included a valid union-security clause and another clause providing that when any employee was off duty for any reason his situation would be covered by a union mem- ber. The publishers were not entirely satisfied with this and further negotiations ensued. The record indicates, and the Trial Examiner found, that at least as of October 12, there was acceptance of an agree- ment that hiring would be on a nondiscriminatory basis. However, the strike adverted to above occurred on November 10, when this agree- 649856-63-vol. 13T-51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment still existed. Therefore it is clear that illegal conditions of em- ployment were not a factor in causing the strike. In this connection we would note our belief that the Trial Examiner did not sufficiently consider what may have been the causes of the strike. As the Respondents argue, there were great differences be- tween the parties on purely economic issues. At the time of the strike the union could not report to its members any significant progress at all toward a new agreement after some 21/2 months of negotiations. We are not suggesting at this point that there was bad faith on either side. We do suggest, however, that the course of negotiations had not been very fruitful and that this is a factor to be considered in attempt- ing to assess cause of the strike and what in fact the union was insisting on. By failing to do this and weigh this factor, the Trial Examiner has, in our view, misplaced the emphasis by dealing with only part of the situation. However, as noted above, the strike began on November 10. The first bargaining session thereafter occurred on November 17. The publishers then stated they were withdrawing all agreements reached to that point and reverting to their original proposal. The Respond- ents replied in kind, and negotiations resumed with the publishers now offering considerably more onerous terms. As the strike con- tinued the publishers obtained replacements for the strikers and be- came reluctant to agree to any form of union security, and the Respondents were concerned to get all the strikers back to work, in preference to the replacements.' Despite this, after the strike began, as well as before, the Respond- ents indicated their willingness to alter previous positions. Thus, for example, on January 15, 1960, the Respondents proposed hiring with- out regard to union membership and with the further proviso that the provision was to be construed in accordance with the Act. While it is true that an earlier union proposal of December 11, 1959, is per- haps susceptible of the construction that union members were to be preferred in hiring, the very fact that Respondents did change their position to this extent persuades us that there was not in fact insistence on illegal conditions of employment. Especially would we so hold where, as here, there has not been any contract signed, the parties did not reach final agreement on any clause in this matter, and the strike situation had become embittered because of the publishers' more rigorous position as the strike continued. We therefore find that the Respondents did not violate 8 (b) (2).' 6 Clearly a legitimate bargaining demand . See Swarco, Inc. (Swan Rubber Company Division of Ameiace Corp ) v. N.L R BN°303 F. 2d 668 (C.A. 6). 'We note that the complaint, with respect to the Section 8(b)(2) violation, can be construed as pieinising the violation on the combination of the four elements discussed above The Trial Examiner's understanding of the complaint and his finding can be simi- larly construed See Intermediate Report, section III, C, particularly the first paragraph and also the last para graph of the last subsection thereof, entitled "Analysis and Con- PORTLAND STEREOTI PERS', ETC., UNION NO. 48 787 2. The allegation of 8(b) (1) (B) rests on coercion of the publishers in their choice of a bargaining representative because of the Respond- ents' insistence that the foremen, who concededly handled grievances, be a member of the union. In Haverhill Gazette,' the Supreme Court was equally divided on whether a strike for such an object was vio- lative of 8(b) (1) (B), thus leaving in effect the decision of the court of appeals 9 that it was, with which the Board agrees. An employer must be free of pressure in choosing his representatives for collective bargaining.10 We therefore find that by insisting upon and striking for this clause the Respondents violated Section 8(b) (1) (B). 3. The complaint alleged, and the Trial Examiner found, that the Respondents had refused to bargain within the meaning of 8(b) (3) by all the conduct considered above, plus two additional demands made after the strike, that all collective bargaining agreements in the plants have the same expiration date and that all employees who had refused to cross picket lines be rehired. The Trial Examiner conceded that the evidence with respect to these latter points was sketchy. We agree. We therefore agree with the Trial Examiner's ultimate con- clusion herein that the Respondents refused to bargain but unlike him base our finding solely on the Respondents' violation of 8(b) (1) (B) as noted above, by their coercion of the publishers in the choice of a bargaining representative. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor elusions." That the Trial Examiner did not consider himself to be passing upon any purely economic demands, or upon the propriety or necessity of the practice of substitu- tion appears most clearly at footnote 12 of the Intermediate Report . The Trial Examiner there states that his cease-and-desist recommendations are not applicable to any demands with respect to either manning or substitutes that do not involve the incorporation of the constitutions and bylaws of the Respondents . We agree that the practice of substitu- tion, as such , standing alone, is not before us s International Typographical Union, AFL-CIO (Haverhill Gazette ) v. N.L.R.B., 365 U.S. 705. 8278 F. 2d 6 (C.A. 1). We do not agree with our dissenting colleague, Member Rodgers, that there is any in- consistency in accepting the reasoning of the Court of Appeals for the First Circuit with respect to the violation of Section 8(b)(1)(B ) but not as to Section 8(b)(2). It seems to us that the consequence of the News Syndicate opinion of the Supreme Court is that the foreman clause is not necessarily a violation of 8(b)( 2), and that therefore , despite some ambiguity in the court's opinion in Haverhill Gazette, we are justified in relying on the specific consideration given to this problem in News Syndicate The 8( b) (1) (B) issue, on the other hand, rests upon other considerations , and as to them we find the reasoning of the court of appeals persuasive. "We are aware that it is not a necessary part of the foreman's job to participate in grievance adjustments , and that the effect of the Respondents ' position that he be a member could easily have been negated by removing that part of his functions No such proposal seems to have been made We find this distinguishable from the situation with respect to the foreman's hiring duties, where the Respondents did canvass the other possibilities The Respondents were not interested in limiting the scope of the foreman's duties in this respect. In fact the record indicates that the Respondents were reluctant to agree to any change in the duties of the foremen , whether to narrow or broaden his responsibilities 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the Respondents, Portland Stereo- typers' and Electrotypers' Union No. 48 and International Stereo- typers' and Electrotypers' Union of North America, AFL-CIO, their officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with Ore- gonian Publishing Co. and Journal Publishing Co. in behalf of the employees in the appropriate unit by demanding and striking for a contract clause requiring a foreman to be a union member covered by the contract, thereby restraining or coercing Oregonian Publishing Co. or Journal Publishing Co. in the selection of their representative for the purpose of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Oregonian Publishing Co. and Journal Publishing Co. as the representative of the employees in the appropriate unit. (b) Post in conspicuous places at the business offices of Portland Stereotypers' and Electrotypers' Union No. 49 and International Stereotypers' and Electrotypers' Union of North America, AFL-CIO, and at all other places where notices to members of Respondent Local No. 48 are customarily posted, including the stereotype departments of Oregonian Publishing Co. and Journal Publishing Co., the publishers willing, copies of the notice attached hereto marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being signed by duly authorized offi- cers of Respondent International and Respondent Local, be posted by them immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps have been taken by Respondents to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleged violations of the Act not found herein. MEMBER RODGERS, dissenting in part : I disagree with my colleagues' holding that the Respondents in striking for a contract provision making union membership of fore- men compulsory 12 did not violate Section 8(b) (2) and (3) of the Act. u 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." 12 While the matter is not entirely free from doubt, I accept my colleagues' finding that during the course of the negotiations Respondent indicated its willingness to provide in the contract that foremen were not to be subject to union discipline. PORTLAND STEREOTYPERS', ETC., UNION NO. 48 789 In resting their holding here upon the Supreme Court's decision in News Syndicate, the majority has overlooked the fact that the same day it handed down its News Syndicate decision, the Supreme Court, being equally divided, affirmed the judgment of the Court of Appeals for the First Circuit that a strike to obtain such a foremen clause violated Section 8(b) (2) and (3). International Typographical Un- ion, AFL-CIO (Haverhill Gazette) v. N.L.R.B., 365 U.S. 705. So far as is material here, the First Circuit in its opinion (278 F. 2d 6 at 12) had stated : There can be no doubt that the foreman's duties necessarily in- cluded participation in the adjustment of employee grievances. Hence, by insisting that the foremen must be union members, the unions were restraining and coercing the employers in the selec- tion of their representatives for grievance adjustment purposes. Not only would the clause as proposed by the unions limit the em- ployers' choice of foremen to union members, but it would also give the unions power to force the discharge or demotion of a foreman by expelling him from the union. It seems to us equally clear, however, that by insisting on the foreman clause as they wanted it, the unions violated § 8 (b) (2) of the Act . . . . for the effect of the clause would be to cause the employers to discriminate in favor of union men in appointing their foremen thereby encouraging aspirants for that position to join the union. And § 8(b) (2) covers all situations in which the union seeks to cause the employer to accept conditions under which any non-union employee or job applicant will be unlawfully dis- criminated against. N.L.R.B. v. National Maritime Union, 2 Cir., 1949, 175 F. 2d 686, 689. Thus we believe that by striking for the foreman clause the unions violated § 8 (b) (2) of the Act as well as § 8(b) (1) (B). I note that elsewhere in their opinion my colleagues rely upon the First Circuit's decision to find the Section 8 (b) (1) (B) violation based on the fact that the foremen here "concededly handled grievances," but have made no reference to that court's 8(b) (2) finding. I do not think that my colleagues can do this plausibly, i.e., rest upon Haver- hill Gazette to find the 8 (b) (1) (B) violation, but ignore that decision when considering the 8 (b) (2) allegation. If my colleagues are of the opinion that the First Circuit's finding here was erroneous, I think they should so state. In my view, the opinion of the First Circuit is sound, and I would find the Section 8 (b) (2) and (3) violations. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL MEMBERS OF PORTLAND STEREOTYPERS ' AND ELECTRO- TYPERS' UNION No. 48 AND INTERNATIONAL STEREOTYPERS' AND ELEC- TROTYPERS' UNION OF NORTH AMERICA, AFL-CIO AND TO ALL EMPLOYEES OF OREGONIAN PUBLISHING CO. AND JOURNAL PUB- LISHING CO. 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, as amended, we hereby notify you that : WE WILL, upon request, in our capacity as bargaining repre- sentative of all employees of the stereotype departments of Oregonian Publishing Co. and Journal Publishing Co., excluding foremen and supervisors, bargain collectively in good faith. WE WILL NOT refuse to bargain collectively with the above employers by insisting upon and striking for a contract clause requiring foremen to be members of the union covered by the contract, thereby coercing and restraining Oregonian Publishing Co. and Journal Publishing Co. in the selection of their repre- sentatives for the purposes of collective bargaining or the adjust- ment of grievances. PORTLAND STEREOTYPERS ' AND ELECTRO- TYPERS' UNION No. 48, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) INTERNATIONAL STEREOTYPERS' AND ELEC- TROTYPERS' UNION OF NORTH AMERICA, AFL-CIO, Labor Organisation. 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. Employees may communicate directly with the Board's Subregional Office, 612 Lincoln Building, 208 SW. Fifth Avenue, Portland, Ore- gon, Telephone Number, Capitol 2-1607, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard at Portland , Oregon, on June 1, 2, and 3 , 1960. The complaint alleges that Portland Stereotypers ' and Electrotypers' Union No. 48 and International Stereotypers' and Electrotypers' Union of North America, AFL-CIO, herein called Respondent Local and Respondent International , respectively, have PORTLAND STEREOTYPERS', ETC., UNION NO. 48 791 engaged in unfair labor practices within the meaning of Section 8(b)(1)(B), (2), and (3) of the Act. The alleged violations are premised upon insistence by Re- spondents in collective-bargaining negotiations with the two Portland, Oregon, newspapers of general circulation, the Oregon Daily Journal and The Oregonian, on illegal clauses or conditions; by striking to obtain them; and by insistence after the commencement of the strike upon additional illegal conditions. Briefs have been submitted by counsel for all parties. Respondents' motion to dismiss is hereby denied. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Oregonian Publishing Co. is an Oregon corporation with its principal office and place of business at Portland, Oregon, where it publishes a daily newspaper called The Oregonian and a Sunday newspaper called The Sunday Oregonian. Journal Publishing Co. is an Oregon corporation having its principal office and place of business at Portland, Oregon, where it publishes a daily newspaper called Oregon Daily Journal and a Sunday newspaper called Oregon Sunday Journal. Each newspaper annually purchases newsprint and other materials from points outside the State of Oregon valued in excess of one-half million dollars; enjoys a gross volume of business in excess of $1,000,000; utilizes national and International news services; and realizes revenue in excess of $100,000 from the sale of newspapers and the publication of advertising for clients outside the State of Oregon. I find that the operations of the employers affect commerce. II. THE LABOR ORGANIZATIONS INVOLVED Portland Stereotypers' and Electrotypers' Union No. 48 and International Stereo- typers' and Electrotypers' Union of North America , AFL-CIO, are labor organiza- tions admitting to membership employees and individuals employed by the employers. III. THE UNFAIR LABOR PRACTICES A. Prefatory statement; the issues There is little conflict concerning the salient facts in this case. The newspapers involved, as is common knowledge, are the two principal papers published in Port- land, Oregon. Respondent Local has for many years been recognized by these two papers as the collective-bargaining representative of the employees of the stereotype departments of both papers in a single unit. This combined unit consists of ap- proximately 50 employees or individuals and the last contract between the two papers on the one hand, and Respondent Local on the other, ran from September 15, 1957, through its expiration date of September 14, 1959. Twenty-eight bargaining meetings concerning a new contract were held com- mencing August 24, 1959, and continuing into January 1960. The minutes of the first 25 meetings, those through December 29, 1959, have been introduced in evidence. Discussions at these meetings covered the union's original contract proposal sub- mitted to the publishers in July 1959, as well as the counterproposal submitted by the latter to Respondent Local 1 month later. Agreement not having been reached, Respondent Local, with the sanction of Respondent International, commenced a strike against both papers on November 10, 1959, and the strike is still being carried on with both papers, at least as of the date of the termination of this hearing, being published in substantially normal fashion after overcoming some major difficulties at the outset of the strike and for a period of time thereafter. The General Counsel attacks herein Respondents' I insistence upon various al- legedly illegal conditions prior to the strike, the strike to enforce such demands, and their insistence on other illegal conditions after the commencement of the strike. Respondents have contended that their strike was totally economic in character and was therefore protected under the Act. Indeed, it is claimed that the Charging Parties made no economic concessions in the period prior to the strike, except for one of a minor nature as to the beginning wage scale for apprentices. While the record discloses some support for this claim by Respondents, it also dis- closes that the publishers were expressly endeavoring during these meetings to change ' The International is joined herein as a Respondent and is so treated in the findings made below because of its participation in the bargaining negotiations , its restrictions upon local unions in contract negotiations , and the requirement of union laws that the International approve all local contracts 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or amend existing conditions of employment coupled with contract clauses which in their belief (1) imposed undue restrictions on their utilization of personnel and (2) might subject them to potential liability, within the meaning of the Brown-Olds decision of the Board because of the imposition of closed-shop conditions in excess of the limited union-security conditions permitted under the Act. B. Violation of Section 8(b)(1)(B) It is contended that Respondents insisted upon and struck for contract language which coerced the publishers in the selection of "representatives for the purposes of the adjustment of grievances ... ," within the meaning of Section 8(b) (1) (B) of the Act .2 The Oregonian has one foreman and the Journal one general foreman , each in charge of the respective stereotype departments. There is a conflict as to whether the two assistant foremen at The Oregonian and the three assistant foremen at the Journal are supervisors within the meaning of the Act and the extent to which they enjoy the powers and exercise the responsibilities of foremen .3 The record is amply clear, and I find, that the foremen in the stereotype depart- ments of both publishers had the responsibility at certain stages for the adjustment of grievances with unions and in fact did adjust such grievances. Therefore, they meet the definition of the statute and the issue is thus presented as to whether Re- spondents restrained or coerced the publishers in the selection of such representatives. Respondents' contract proposal, which was the only complete proposal submitted by them, states that Respondents shall be the collective bargaining agency for em- ployees of the stereotype departments. However, Section 7 of the same proposal treats specifically with foremen and states , "only Union foreman [sic] or assistants shall issue orders to members employed in the Stereotype department." (Emphasis supplied.) No contention is made herein that any employees of the stereotype de- partments were not members of Respondents. This clause along with others was rejected by the publishers. Their bargaining team, consisting of William Morrish of The Oregonian and D. S. Haines of the Journal, proposed that foremen be excluded from contract coverage. At one point in negotiations, early in October, International Representative Robinson, who was on the scene for 6 meetings during that month, tentatively agreed to exclude fore- men from contract coverage subject to a check of the applicable law. But, as Robin- son testified and I so find, he rescinded his agreement at the October 14 meeting because, after consulting with an undisclosed representative of the National Labor Relations staff in Portland, he ascertained or concluded that there was no illegality in the coverage of foremen by the contract. The minutes of the October 14 meet- ing are to the same effect. Morrish testified that Respondents' position on coverage of foremen by the con- tract remained unchanged up to the date of the strike. Theodore Cotner, an em- ployee of the Journal and a member of the negotiating committee, testified originally that Respondents did not strike for a clause in the contract that foremen must be union members. However, he admitted that the subject was discussed during a meeting of the membership at which the November 10 strike was authorized and that the membership was informed on this occasion that the publishers were insisting that it was illegal to cover foremen in the contract. And, on cross-examination, he was asked what the union demands were in relation to foremen on the date of the strike and replied, "I believe we asked that they belong to the Union and be covered by the contract." I find, in view of the foregoing that this was a contract demand by Respondents and that it was one of the contract demands for which Respondents struck on November 10, 1959.4 Indeed, in perusing the minutes of the meetings held during the strike, one notes that this was a very live issue at many of them. For example, at the December 1 z Tbere is some ambiguity in the complaint. as well as in the General Counsel's brief, as to whether this alleged conduct is also alleged to constitute a violation of Section 8(b) (2) of the Act I believe the complaint is broad enough to support such an allega- tion, it appears to have been so regarded by the parties, and this topic is treated hereinafter. 8 The General Counsel does not press herein for a determination as to the precise status of the assistant foremen, his view being that a decision by the Board as to foremen will be a guide to the parties and therefore will be dispositive of this issue in the future. * I deem it unnecessary to detail the changes of position during negotiations on the issue of coverage of foreman, because the testimony of Robinson and Morrish and the minutes all disclose and I have found that, as of October 14 and up to and during the strike, Respondents had reverted to their original position that foremen be covered. PORTLAND STEREOTYPERS, ETC., UNION NO. 48 793 meeting, a Federal conciliator referred to it as one of the "main issues of difference." It is contended that the publishers ' selection of a foreman under so restrictive a clause must perforce be limited only to those persons who are willing to join Respond- ents, accept and honor obligations as members , and pay initiation fees and dues. It is claimed that the employer has a right to select its bargaining representative for the adjustment of grievances free from such a restriction and that this is correlative to the right enjoyed by a labor organization to select its bargaining representatives free from ouside dictation . See Leo H. Hill et al. v. State of Florida, etc ., 325 U.S. 538. If I read the Act correctly, these employers are given the right to select their own management representatives for the purposes of collective bargaining or adjustment of grievances without limitations from any source . It perforce follows that conduct by Respondents, in support of a demand requiring union membership on the part of foremen, does tend to restrain or coerce the employers in the selection of their bargaining representatives within the meaning of Section 8(b)(1)(B ) of the Act. But the record demonstrates , as the General Counsel and the Charging Parties contend, that the efforts of Respondents went further. The contract which expired in September 1959 provided that "The laws of the International Stereotypers and Electrotypers Union in effect January 1, 1954 , not in conflict with this contract, shall not be subject to arbitration . The parties of the first part hereby agree to recognize the General Laws of the International Stereotypers and Electrotypers Union of North America in effect as of January 1, 1954 , in so far as said laws are not in conflict with the provisions of this contract." The new contract proposal submitted by Respondents similarly provided: UNION LAWS SEC. 34. The party of the first part agrees to respect and observe the condi- tions imposed by the local union Constitution & By-Laws and the constitution and General Laws of the International Stereotypers' & Electrotypers' Union, copies of which are attached hereto and made a part of this agreement, and which do not conflict with the contract, or the Labor-Management Relations Act. And it is further agreed that local union laws not affecting wages, hours or working conditions, and the laws of the International Steretoypers' & Electro- typers' Union shall not be subject to arbitration. Section 1 of the general laws of the International provides that every person ad- mitted as a member shall take an oath providing in part that he will "use every endeavor to procure employment for members of the International Stereotypers and Electrotypers Union in preference to others." Section 4 provides that all who become members "must obey the laws (union), journeymen and foremen alike." [Emphasis supplied.] Indeed, article XIII, section 1, of the International constitution decrees that both local and International representatives "shall not contract with any employer allowing a section of the contract to specify that the Union party to the con- tract cannot force the members, either foremen or journeymen, to live up to the Union laws." Demonstrating that the proposed contract language in the instant case is directed to existing rather than prospective union membership of foremen, section 17 of the International general law provides that any "foremen or assistant foremen having charge of or supervising the work of any Union Stereotypers or Electrotype depart- ment must be a member of good standing in this Union." [Emphasis supplied.] Manifestly, this is not stated in terms of an open union with 30 days to join, but rather in terms of preexisting union membership. In sum, the finding is inescapable that this complex of contract proposal and International constitution and laws would give Respondents control of the selection of a foreman from among a group of candidates restricted to union members only. It is, of course, entirely understandable that an established craft organization is desirous of retaining long-standing control over such conditions of employment. It is equally understandable that Congress saw fit to legislate in this area along lines, in part, contrary to Respondents' objectives and on a broader basis, recognizing in Section 1 of the Act that "It is the purpose and policy of this Act . . . to prescribe the legitimate rights of both employees and employers. . . To provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations...: ' In International Typographical Union Local 38 (Haverhill Gazette) v. N.L.R.B. 278 F. 2d 6, the Court of Appeals for the First Circuit stated, in a closely parallel situation, "There can be no doubt that the foreman's duties necessarily included 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD participation in the adjustment of employee grievances. Hence, by insisting that the foremen must be union members, the unions were restraining and coercing the employers in the selection of their representatives for grievance adjustment purposes. Not only would the clause as proposed by the unions limit the employers' choice of foremen to union members, but it would also give the unions power to force the discharge or demotion of a foreman by expelling him from the union." It is noteworthy in this context, as well as in the discussion of the alleged violations of Section 8(b)(2) and (3) hereinafter, that International Representative Robinson stated during the negotiations that the International constitution establishes manda- tory criteria for the conduct of locals and that "in negotiating a contract, we're not to deviate from our General Laws." He also testified and I so find that all local con- tracts must be approved by the International president and that any local contract which did not conform to the general laws would not be recognized. Actually, this precise issue was treated some 9 years ago by the Court of Appeals for the Seventh Circuit. American Newspaper Publishers Association v. N.L.R.B. et al., 193 F. 2d 782, cert. denied 344 U.S. 812. In a case involving very similar conduct, the recent amendments to the Act were receiving initial consideration in the printing trades and the court stated (at 805) : The respondents apparently thought that union foremen were important to their general scheme for maintaining closed shop conditions. The fact that their threat of strike action was directed to the enforcement of the entire scheme and that there was no special threat to secure this particular point is not important. ITU foremen were secured as a part of their general scheme. The general scheme was secured by threats of strike, by restraint and coercion. Consider- ing the record as a whole we find no basis for saying, contrary to the finding of the Trial Examiner and of the Board, that the respondents, the ITU and its agents did not restrain and coerce the employers in the selection of their rep- resentatives for the purposes of the adjustment of grievances in violation of § 8 (b)(1)(B) of the Act. It is true that on September 30 Respondent did submit a list of specified sections of the International constitution and general laws and the local laws for specific inser- tion in the contract in lieu of the blanket clause incorporating those documents in full. At no point, however, was it contended or has it been urged herein that other clauses in these documents, not referred to in the September 30 proposal, would not continue to be binding upon members of Respondents, journeymen and foremen alike. And the specified sections, as will appear, include most of the language chal- lenged by the publishers. Basically, this reduces itself to persistent efforts and strike action by Respondents to tie the foreman's loyalty and obligations to themselves rather than to his employer. The 1947 amendments to the Act, excluding supervisors from the definition of em- ployee, were designed to remove supervisors from the realm of compulsory collective bargaining as previously sanctioned under the Wagner Act. See Packard Motor Car Company v. N L.R.B., 330 U.S. 485. The potential of the contractual language concerning foremen is not difficult to ascertain. In N.L.R.B. v. Retail Clerks International Association, 211 F. 2d 759, cert. denied 348 U.S. 839, a case involving another issue, the Court of Appeals for the Ninth Circuit noted as follows: A primary objective of § 2(11) of the Act, . .. was to assure to the em- ployer his right to procure the loyalty and efficiency of his supervisors and man- agers. The reports which accompanied the legislative bill which Congress enacted into the Labor Management Relations Act of 1947, made this abun- dantly clear. . Much emphasis was laid upon the desirability of assuring their independence of unions of the rank-and-file.... The committees noted the tendency to subservience by the foremen and their associations to unions of the rank-and-file, and how as a practical matter the rank-and-file unions were dictating what the foremen might or might not do. The conduct of the unions here furnishes a fair illustration of the sort of thing Congress was trying to get away from when it made these amendments with respect to supervisors . It may fairly be said that an employer would be sharply restricted in his opportunity to obtain loyal and efficient supervisors if he is to be limited to selecting them from a rank-and-file union whose members, by habit and training, may have acquired an anti-employer bias. Here the union proposes to dictate. through its bargaining, what the supervisors may or may not do. . Congress obviously did not contemplate that a union should be able to exercise that much power. In view of the legislative history of the present Act we must construe .the consent decree as having been framed with a PORTLAND STEREOTYPERS', ETC., UNION NO. 48 795 view to avoiding just this sort of encroachment upon the rights of an employer to select and control his supervisors and to obtain their loyalty and cooperation. I find, in view of the foregoing considerations, that Respondents, as alleged in the complaint, have engaged in unfair labor practices within the meaning of Section 8(b)(I)(B) of theAct5 C. Violations of Section 8(b)(2) The complaint alleges that during the prestrike period Respondents adamantly in- sisted upon four conditions or clauses; that Respondents struck on November 10 to force the publishers to agree to these conditions which, taken together, constitute an illegal closed-shop arrangement; and that this consisted an attempt to cause or did cause the publishers to discriminate against employees within the meaning of Sec- tion 8(a)(3) of the Act, thereby violating Section 8(b)(2). The bargaining history is a lengthy one and the highlights thereof are set forth below. It is readily apparent that the publishers' concern was in part economic. That is, as to some of the clauses their concern was largely economic, although not entirely so, and as to other clauses it was almost entirely predicated upon concern over closed-shop conditions and possible liability under the Brown-Olds decision of the Board. It is also apparent that Respondents, in their bargaining demands, lumped together all these matters with its hiring plan and clearly, as reflected in the minutes, the purported illegality of the hiring arrangements was a direct and major issue before the parties at all times. The Dispute on the M.A.N. Machine This facet of the dispute on the M.A.N. machine involved The Oregonian which had under consideration the purchase and installation of a newly devised electrically automated plate casting machine and shaver known as the M A.N. machine; this machine was not actually purchased by The Oregonian until January 1960 and it was installed in April. The manufacturer of the machine had given the publisher assurances that it could be operated by one man. This posed an immediate major problem, because section 90 of the general laws of the International provides that "not less than four journeyman members shall be employed to operate" an automatic autoplate machine and shaver and this clause, together with the remaining laws as well as the constitution of Respondent International, had been incorporated into section 4 of the contract which expired in September 1959. In sum, The Oregonian because of technological changes believed that it could operate the new machine with one man and Respondents insisted that the section of the general laws providing for four men to operate machinery in this category should control. The issue is not reflected in Respondents' original contract proposal, except as contained in a December 9 proposal by Respondents described below. And the discussions, as Morrish testified, revolved around the number of men, though the publishers did call to the attention of Respondents before the strike, and I so find, that the general laws requirements that only members could operate this equipment had a definite bearing in this area. It is undisputed that the general laws of Respondent International provide that four men must operate this type of equipment. Initially, at the meetings, and it was the position of the publishers that the employers should determine the number of persons it hired and paid and the techniques utilized, the publishers submitted a full contract as a counterproposal to the union proposal. The counterproposal was silent on the topic of manning and contained nothing like section 34 of Re- spondents' proposal that conditions imposed by Respondents' constitution and laws would be observed. This technique was so recognized by all concerned. More- over, section 13 of the publishers' proposal specifically gave the foreman authority to determine the number of men in the stereotype department. Early in the negotiations, on or about the second meeting held on August 26, the publishers' representatives came forward with a concession. They offered to accept the manning provision of the International laws as to existing equipment, provided that Respondents would permit the publishers to decide, at least initially, how many men should be assigned to new equipment such as the M AN, machine, the latter being the only new equipment then under consideration. The publishers pointed out that the investment for the machine was substantial, in the neighbor- 6I shall treat hereinafter with the effect of the so-called savings clause on Respond- ents' contract proposals 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hood of $80,000, and that it would not be practical to invest this sum unless there was a saving in labor expense. By the third meeting, that of August 31, Cotner, in behalf of Respondents, stated that the number of men to be used on the M.A.N. machine was beyond the control of the local and that the publishers should contact President Sampson of the Inter- national. On September 2, Morrish telephoned Sampson at International headquar- ters. Morrish uncontrovertedly testified and I find that he suggested to Sampson that the problem might be solved if the International laws were so interpreted as to not apply to the M.A.N. machine. Sampson refused, stating that the four-man require- ment of the laws was binding in this situation. In ensuing meetings, Respondents did not alter their position . At the Novem- ber 3 meeting, the publishers proposed that they purchase and install the M.A.N. machine; that it be staffed as the department foreman deemed appropriate for optimum or efficient performance; and that if after such a test Respondents found the staffing not to their pleasure, the publishers would negotiate the staffing and even arbitrate the problem if desired. Respondents refused, stating that under International laws they were unable to arbitrate any outstanding issues; article XIII, section 7 (a), of the International constitution does so provide , stating, "It shall be mandatory that all local unions shall refuse to agree to any contract, con- taining any clause, providing for the arbitration of a new contract. The International Executive Board shall not underwrite any contract agreed to in violation of the above requirement." The publishers then offered to guarantee that no one with one year's experience at The Oregonian would lose his job. Cotner replied that he could only take this up with President Sampson. At the November 6 meeting, Cotner reported that he had spoken with Sampson and that the International would not agree to arbitrate the manning of a new machine not yet in production and further that the local was forbidden to negotiate in this area because it was a matter for determination by the International . It may be noted that at this very meeting Cotner also reported that he was instructed by Sampson to insist upon union membership for foremen and on the so-called right of substitution . The latter are discussed below, as well as the restrictions placed upon foremen in the selection of personnel. At the November 9 meeting, the day before the strike, Cotner reported that President Sampson had decreed that there was to be no negotiation on manning of the M.A.N. machine until it had been proven in production. At the same meet- ing, union representatives also stated that the International would not permit the local to establish the manning of the machine. The strike commenced on November 10 and thereafter both parties reverted to their original positions on this as well as other issues . At the next meeting, on November 17, the publishers proposed that the manning of all machinery, old or new, be decided by the foreman, conceding, however, that they would operate present equipment with the existing number of personnel. On December 1, Sampson arrived in Portland and participated in several meetings thereafter. He proposed that the M.A.N. machine be operated and that the manning be determined thereafter by negotiations. I find that this was a proposal to staff it with four men as provided under International laws and thereafter to negotiate the matter. On December 9, the publishers, still persisting in the view that as em- ployers it was their province to decide how many people they should place on their payroll, urged that foremen should designate the number of men to work. On this date, Respondents submitted the following proposal to the publishers: It has been mutually agreed that if anyone of the Publishers should order the M.A.N. Wood Ultra-Matic Plate Casting Machines or any other machine not covered by the present manning through this agreement would immedi- ately notify the union, thereby opening negotiations for the manning of new machines. The union further agrees that upon the installation of any new machinery that they will operate such new equipment with x number of men during the life of this agreement . The number of men necessary for the permanent manning of said equipment to be mutually determined by manage- ment and the union through negotiations. Although the topic was much discussed thereafter, there was never a precise clarification obtained as to what x meant . I find that, as of that date, it meant, in the posture most favorable to Respondents, precisely what it generally means in mathematics, viz, an unknown quantity. On December 29, Cotner told the participants at the meeting that Respondents had previously indicated that x meant whatever number the foreman designated. Much discussion ensued as to whether this meant four men or not . It is apparent PORTLAND STEREOTYPERS', ETC., UNION NO. 48 797 from the minutes that the publishers were expressly concerned here with the impact of the International laws on the hiring practices to be followed by foremen. The union representatives did propose that the publishers should determine the number of men, but when this was explored , much talk and disagreement ensued as to what had previously been agreed upon . One of the union representatives, Flesvig, stated that "We will never agree to change manning on present machinery." And at a meeting held in January , attended by Vice President Feeney of the Inter- national, the latter noted that there was disagreement on the manning of the M.A.N. machine. Cotner, in behalf of Respondents , testified that all these discussions were based upon the number of men only , claiming that the parties had agreed upon a union- security clause whose validity is not challenged herein . However, this ostensibly legal union-security clause is contained on the first page of the union proposals under "EMPLOYMENT" and the matter that distressed the publishers was con- tained on the seventh page under "UNION LAWS." It is in the latter section that the parties agreed to observe the conditions imposed by the constitution and laws of both Respondents "copies of which are attached hereto and made a part of this agreement." (Emphasis supplied.) And the minutes of the meetings also reflect much controversy over the incorpora- tion of Respondents' constitution and laws and the more basic claim, stressed by the General Counsel, that these maintain control over foremen , jobs, and preference of employment , in sum , closed-shop conditions . Moreover, as International Rep- resentative Robinson testified, section 90 of the International laws provides for four men on this type of machinery. He further testified that this was controlling on the union negotiators and "we're not to deviate" therefrom . No contrary claim is made herein. The Substitute Laws The complaint further alleges that by the retention of their substitute laws, Re- spondents to the exclusion of management have been delegated exclusive control over the hiring of substitutes . This too is lumped together with the requirement of the laws that members in securing substitutes as replacements shall give preference to the journeymen members of Respondents . See, for example , local constitution , section 67. These procedures, it may be noted, were not set forth in the contract which expired in 1959, but were recognized and applied by the parties pursuant to the blanket recognition of the laws of Respondents , as provided in the expired agree- ment and as proposed by Respondents in the 1959 contract. Here, as well, the publishers' concern had two facets . The first was economic in that they were being compelled to pay overtime rates in some instances for a sixth shift and they believed this could be avoided by a revision of the substitute plan. The second was their concern over Board decisions in similar cases where the hiring of a substitute or extra by the regular under circumstances where preference was given to members of labor organizations over nonmembers had been found unlaw- ful. This was coupled with the fact that they were expressly concerned over the financial penalties levied under the Brown-Olds line of cases. The use of substitutes who are not regular employees or 5-day situation holders comes about under several circumstances . One example is where a substantial in- crease in the size of the paper requires additional stereotype department employees. Another, and perhaps more common , is the use of this class of personnel to cover absences caused by sickness, vacation, or a desire to have a day off. While there is a technical difference between the term of extra and that of sub- stitute, it appears that they are used interchangeably . It would seem that each local endeavors to have a pool of substitutes or extras available for these situations and efforts are made to keep them stable and content and at a number calculated to furnish 5 days of work or more weekly per man on a yearly average. This pool of manpower was the same source from which all substitutes or extras were drawn, ir- respective of the cause for their use. It also appears that the pool was a fixed group, although from time to time , as journeymen left or came to the area, the composition of the group would change . The meetings between the parties did touch upon other facets of the regular or situation holder versus the extra or substitute , as is reflected for example in a union presentation on September 30, 1959, but these do not bear directly upon the instant issue. During the negotiations , the publishers did express concern over the fact that regu- lars were permitted to arrange for their own substitutes resulting in possible viola- tions of the Act. The situation was complicated by the fact that although the com- position of the labor pool of substitutes might change as journeymen came to town or left, this labor pool was fixed and the regulars were bound by the laws of Re- spondents. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As Morrish of The Oregonian uncontrovertedly testified , the publishers wanted to preserve the foreman's right to reject a substitute, consistent with the Mountain- Pacific line of cases, and he knew of no case where a foreman had rejected a sub- stitute coming from a group of men which had never been passed upon or approved by the publishers. Indeed, according to Morrish, his foreman had complained that there were people in the pool whom he did not want to accept because of their lack of ability to handle certain jobs but, under the existing practice, if the sub- stitute had a journeyman's card, the foreman was required to accept him, although it appears that the foreman could lay him off thereafter if the substitute demonstrated that the foreman's fears concerning his ability were well founded. However, Respondents' new contract proposal provided in section 1 that "It is agreed and understood that when an employee covered by this contract is off duty for any reason , including vacation or sick leave, his situation shall be covered by a member of the party of the second part [Respondent Local]." And at a December meeting, when Haines of the Journal asked International Representative Badgley if he would hire only union men as substitutes the latter replied, "We're not going out to get scabs," a reference to the fact that during the strike some nonunion men had gone to work for the publishers. According to Haines, there were three substitutes available to the Journal "on the Board" as extras . His testimony discloses that the Journal had been affected ad- versely by the necessity to pay overtime rates for a sixth shift. He claimed that when a regular laid off, the regular would receive permission from the chapel chair- man to get one of the substitutes . His testimony also discloses that if a foreman needed a replacement when a regular or situation holder was ill, the foreman would tell the chapel chairman and the latter would make the selection , ostensibly accord- ing to seniority on the Boards If none of the three substitutes were available, the chapel chairman would procure a man from other union sources. During the strike , on December 11, the Union submitted the following proposal: Portland Stereotypers and Electrotyper's Union No. 48 agrees to furnish , as many competent stereotypers as are required to perform the stereotyping work in the office signatory hereto, at straight time rates , except as herein otherwise provided. If such help is not furnished by the union within a reasonable time, the employer shall be privileged to secure such help regardless of Union affiliations and to retain such help until such time as the Union shall furnish the required help: provided, when outside help is employed on any day or night shift , the foreman shall not be required to replace such outside help with Union stereotypers during said day or night. [Emphasis supplied.] Noting the rights given to union members thereby, Haines commented to Inter- national Representative Badgley at a meeting at or about this time that this looked like a closed-shop arrangement to him. Badgley replied, according to Haines, "We've always had a closed-shop. What's wrong with it?" As is apparent, this clause required replacement of the "outside help" by a member of Local 48 no later than the following shift. According to the testimony of Cotner of the union negotiating committee, he had never known of a nonunion man being selected as a substitute and he once heard Chapel Chairman Thompson of The Journal comment about running off a nonunion applicant; Thompson did not recall the incident. Chapel Chairman Danforth of the Oregonian , where there were four substitutes on the Board , admitted that he put the names on the Board and that he introduced substitutes to the foreman only after the job applicant had contacted him, Danforth, for the job. He further admitted that he asked applicants for work if they were members, full or probationary, of Respondents . When asked if he had ever put a nonunion man to work, he recalled only that many years ago he had put a probation- ary member to work. And, if more extras were needed he, the chapel chairman, would locate them. He admitted that his first efforts were to locate a man "within the Union" who had not put in his five shifts. The publishers' position was basically the same throughout negotiations . In their contract proposal, they proposed that the foreman should decide whether to hire an extra in lieu of a laid -off man, and that seniority of substitutes should date from the time that they applied to the foreman for work. As Morrish put it, the publishers stated at the December 1 meeting that they inserted this clause about seniority be- cause they were concerned over "potential legal problems ." The only legal prob- e At one point , Haines claimed that the foreman would designate the man, but his later testimony discloses and I find that the chapel chairman made the choice . It may be that when a particular skill is needed the foreman is permitted to designate the particular man, but this is not clear PORTLAND STEREOTYPERS ', ETC., UNION NO. 48 799 lems of concern at that time were those under the Act and, particularly, the fear of the widely publicized Brown-Olds remedy in hiring hall and similar cases. At the December 2 meeting, International President Sampson flatly rejected the employer proposal that a foreman approve the layoff of a situation holder. At the December 11 meeting, Haines asked if only union members would get the jobs and Badgley replied, according to the minutes, "We are not going out to get rats." Haines pointed out that by allowing employees to take the place of management in hiring substitutes, the publishers might be open to charges "of unlawful discrimination." In sum, I find that the concern of the publishers over this issue was in large measure an economic one. I further find, in view of the foregoing, that the publishers did have a specific concern, and so expressed it, over their liability for the com- mission of unfair labor practices by acceding to the union proposals and thereby granting to Respondents a degree of union security in excess of that permitted under the Act. Compulsory Union Membership for Foremen and Incorporation of Union Laws and Constitution The two remaining facets of this allegation are actually intertwined and lend themselves to joint treatment. The complaint here attacks conduct directed to obtaining compulsory membership for foremen coupled with union laws restricting management powers and obligating the employers to discriminate in favor of members of Respondent in regard to hire, tenure, and conditions of employment; much of this has been set forth in the discussion above concerning the violation of Section 8(b)(1)(B). Also attacked is the demand for incorporation into the contract of various union laws establishing hiring conditions which allegedly discriminate against nonmembers of Respondents and in favor of members. This scheme is alleged to be part of a closed-shop system. I have previously set forth how Respondents submitted a contract proposal pro- viding that "Union foremen" would issue orders to members employed in the stereo- type departments; that the publishers rejected the proposal; that in October Interna- tional Representative Robinson tentatively agreed to exclude foremen from contract coverage; that on October 14, Robinson withdrew his agreement to the exclusion; and that this was one of the contract demands for which Respondents struck on November 10, 1959. The contract which expired in September 1959 provided that "The Laws of the International Stereotypers' and Electrotypers' Union in effect January 1, 1954, not in conflict with this contract, shall not be subject to arbitration. The parties of the first part hereby agree to recognize the General Laws of the International Stereo- typers' and Electrotypers' Union of North America in effect as of January 1, 1954, insofar as said laws are not in conflict with the provisions of this contract." The new contract proposal in the 1959 negotiations similarly provided: UNION LAWS SEC. 34. The Party of the first part agrees to respect and observe the condi- tions imposed by the local union Constitution & By-Laws and the constitution and General Laws of the International Stereotypers' & Electrotypers' Union, copies of which are attached hereto and made a part of this agreement, and which do not conflict with the contract, or the Labor-Management Relations Act. And it is further agreed that local union laws not affecting wages, hours or working conditions, and the laws of the International Stereotypers' & Electro- typers' Union shall not be subject to arbitration. Both contracts provide that the foreman shall employ all personnel and direct the work of all employees in the department. It should be noted that the publishers expressly informed Respondents during the negotiations that they had no objection to foremen belonging voluntarily to a labor organization. Their objection was directed to language under which union member- ship of foremen was compulsory and under which his discharge could be compelled Here, as well, the publishers expressed serious concern over possible penalties under the Brown-Olds remedy. I. S. Brown-E. F. Olds Plumbing & Heating Corporation, 115 NLRB 594. And, in view of Board policy permitting the assessment of such penalties in full against only one of the contracting parties, needless to say, the fear was manifestly a genuine one.7 7 See , e g, Gay Enginee7ing Corporation, 124 NLRB 451, where, in a CA, CB proceed- ing, the General Counsel accepted a settlement from a labor organization n-hich did not 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Earlier in the negotiations, the publishers suggested that if Respondents were desirous of having only some clauses of the laws and constitution in the contract a desirable procedure might be to submit such a list for consideration and for in- clusion in the contract, rather than to have an all-inclusive incorporation by ref- erence of these documents . As a result, on September 30, Respondents submitted to the publishers a document which stated as follows: Ninth meeting between the Oregon Journal and Oregonian Publishing Com- panies and the Portland Stereotypes and Electrotypers Union, Local 48. In lieu of acceptance of the International Stereotypers and Electrotypers Union of North America Constitution and General Laws Book as part of the agreement, the following sections shall be inserted into the agreement under their proper headings. Constitution: Art. I, Sec. 2; Art. XIII, Sec. 1, Page 52 beginning with the sentence in line nine through fourteen and including the words "Union Laws" in line fifteen on page 53. General Laws- Page 60, sec. 4, sec. 5; Page 61, sec. 6a; Page 64, sec. 17, sec. 19, sec. 20, sec. 21; Page 65, sec. 22, sec. 23; sec. 24; sec. 25; Page 66, sec. 25a, sec. 26; Page 67, sec. 26a, sec. 27, sec. 27a; Page 68, sec. 29, sec. 30, sec. 31, sec. 32, sec. 33, sec. 34; Page 70, sec. 39B sec. 39C, see. 39D, sec. 39E, sec. 39F; Page 71, sec. 39G, sec. 39H; Page 73, sec. 43; Page 83, sec. 80, sec. 81, sec. 83; Page 84, sec. 84, sec. 85, sec. 86; Page 85, sec. 87, sec. 88, sec. 89, sec. 90, sec. 91; Page 86, sec. 92, sec. 93, sec. 94, sec. 94a, sec. 95, sec. 96; Page 87, sec. 97; Page 89, sec. 109; Page 90, sec. 111; Page 79, sec. 70. Local Laws: Page 7, sec. 9, sec. 10, see. 11; Page 19, sec. 49; Page 21, sec. 56, sec. 59; Page 23, sec. 65; Page 26, sec. 74, sec 75, sec. 76, sec. 77, sec. 78; Page 27, sec. 81, sec. 82; Page 35, sec. 110, sec. 111, sec. 112; Page 36, sec. 113; Page 37, sec. 117, sec. 118, sec. 120, sec. 121; Page 38, sec. 124. The language and meaning of these sections are not to be changed in any way other than to bring them into conformity with the intent of the Labor Laws of the United States of America [Emphasis supplied.] I find at this point that this was not a proposal to incorporate by reference the various clauses of the laws. This rather called for the specific inclusion of the language of the specified clauses in the body of the contract. As late as November 6, Cotner reported to the publishers' representatives that International President Sampson had decreed that the local was to insist upon union membership for foremen. It is clear and I find that as of the date of the strike on November 10, 1959, Respondents were striking for inclusion in a contract of the clauses specified above, as well as for a provision requiring union membership for foremen After the commencement of the strike, both parties reverted to their original con- tract proposals. I find that the strike action after November 10 constituted a demand for Respondents for inclusion in the contract of all the language and conditions contained in the constitution and general laws of Respondent International and the constitution and bylaws of Respondent Local. The effect of the so-called savings clause upon the situation is discussed below. Turning to a consideration of most of the specified clauses in the September 30 union proposal, the record discloses the following. Article I, section 2, of the Inter- national constitution provides that all specified work, ostensibly that of the stereotype department, "shall be done by members of the International Union." Article XIII, section 1, as specified, provides that a local or the International "shall not contract with any employer allowing a section of the contract to specify that the Union party to the contract cannot force the members, either foremen or journeymen , to live up to the Union Laws." 8 The general laws of the International provide in section 4 that "When applicants to local unions have been favorably acted upon and become members . . . they must obey the laws, journeymen and foremen alike." [Emphasis supplied.] Section 17 provides that a "foreman or assistant foreman having charge of or supervising the work of any Union stereotype or electrotype department must be a member in good standing of this Union." Section 19 provides that foremen may not designate "any particular day or how many days a man shall work in one week." provide for the Brown-Olds remedy and thereafter, rejecting a contrary recommendation by the Trial Examiner, the Board held that the full Brown-Olds remedy was appropriate and applied it against the employer alone s This, of cour,e, would be applicable on its face to all union laws, not merely those specified in the September 30 proposal PORTLAND STEREOTYPERS', ETC., UNION NO. 48 801 Section 20 provides that "No foreman shall have the rights to discharge or disci- pline a regular [situation holder] for putting on an incompetent `sub,' provided the foreman has not notified the regular of the `subs' incompetency." Section 21 provides that no foreman may prevent a paid-up journeyman "member" from employment in any office except by consent of his local union unless the member is "delinquent in his habits." Section 24 provides that a foreman may not transfer a member of any local from one shift to another "unless agreed to by the members affected, and with the consent of the local union." Section 25 states in part that "No foreman shall discharge any journeyman for the express purpose of reorganizing his force." Section 39 (and alphabetical subsections thereafter) is a comprehensive plan cov- ering apprentices whereby local unions admit to membership only one-sixth of the apprentices registered in any 1 year; locals are forbidden to admit into membership any apprentice who has not served 6 years of apprenticeship "under the control of a local union"; apprentices are required to apply for membership in the local in whose jurisdiction the apprenticeship is completed; and chapel chairman are instructed to "report for registration" with the secretary of the local within 30 days of employ- ment all apprentices working in the chapel. In addition, the local secretary is re- quired to register the apprentices with the secretary-treasurer of the International. It is to be noted, as appears below, that the constitution of Respondent Local requires that applicants for journeyman membership must have served an apprenticeship as required by the foregoing sections. Section 84 of the general laws of the International provides that "None but journeymen members of this International Union shall be employed to operate" various specified types of equipment found in the stereotype department. Section 85 provides that "not less than three journeymen members of this International Union shall be employed to operate" a specified machine and Section 90 provides that "not less than four journeymen members" shall operate an automatic auto plate and shaver; the latter was the equipment classification within which the M.A.N. machine fell. Section 91 similarly restricts the operation of a double automatic and shaver to "not less than eight journeymen members." Section 92 provides that "Members of this International Union" shall handle and deliver all plates produced on the varied specified types of equipment. Section 93 and 94 provides that: "None but journeymen members of this International Union shall be employed" to operate other specified machines. Section 94a provides that "Members of this International Union" shall handle certain products. Section 96, after urging "the entire membership" to become familiar with all machinery, provides that "foremen and the membership in general are expected to cooperate. It is particularly enjoined that no member shall be discriminated against." Section 109 provides that "Members of local unions may be disciplined for violation of International and local union laws." [Emphasis supplied.] Turning to the constitution and bylaws of Respondent Local, the September 30 list contains, in part, the following sections for specific inclusion in the contract. In the constitution, article 2, section 9, provides that candidates for journeymen membership must have served an apprenticeship as required by the general laws of the Interna- tional Article 10, section 65, provides that there shall be a foreman in each stereo- type office under the jurisdiction of Respondent Local, and section 74 of this article provides that any foreman who disciplines, discharges or harasses "in any manner a member of this Union" for action taken in Union matters shall be fined or expelled. [Emphasis supplied.] Article XV, section 120, of the bylaws provides that all work of specified types shall be done by "members of this Union." Section 121 provides that the discharging of a chapel chairman shall be punishable. Although this also refers to the chairman being discharged for "enforcing the laws," this is presumably and inevitably a reference to discipline or punishment of the member foreman who carries out the discipline. Of course, after the commencement of the strike, the parties reverted to their original demands which consisted of a demand by Respondents for an inclusion by reference of all these documents in full. There were other clauses in all these documents which also reveal the precise nature of the contractual hiring arrange- ments sought by Respondents. Only some are set forth, as these adequately give the true picture. Thus, article I of the International constitution provides that all work of certain described types shall be done by "members of the International Union." Article XIII, section 1, forbids a local union to sign a contract "unless such contract is in accord- ance with International Law and has been approved by the International President." And section 5 of the same article directs International officers not to underwrite any contract if any portion thereof is in conflict with International law. 649856-63-vol. 137-52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The general laws of the International provide that every member upon admission shall swear to "use every endeavor to procure employment for members" of the International "in preference to others" and section 18 states that any member who employs a nonunion man in preference to a unionman shall be fined, suspended or expelled. [Emphasis supplied.] Turning to the constitution of the local,9 article I, section 6, provides for the pun- ishment of any members who do not comply with International law. Article III, section 13, requires every member, upon admission, to promise to procure employ- ment for members of the International in preference to others. Article IX, section 60, provides that the chapel chairman "shall require a permit or working card to be held by every journeyman before commencing work in the chapel." Article X, section 66, provides that any foreman or assistant foreman "must be a member in good standing of this Union." Section 67 states that any member who employs a nonunion man in preference to a unionman shall be fined, suspended, or expelled. And Article XI of the general laws, section 94, provides that "only journeymen members and apprentices shall work in any way" on stereotyping or similar processes. [Emphasis supplied.] In addition to the foregoing provisions from the union documents, on the very face of Respondents' proposed contract, section 1 provides that "a member of Respondent Local shall be appointed as a substitute when a situation-holder is off duty." And section 7 provides that "only Union foreman [sic] or assistants" shall give orders to members employed in the stereotype department. In addition, section 27 states that all autoplate machines shall be operated strictly in accordance with the machine laws of Respondent International. (See general laws, section 84, 85, 90, and 91, supra.) As is readily apparent, the local and International laws contain a flat fiat that the local could not change or modify any "International Laws" and the minutes of the negotiating meetings contain many references to this restriction by negotiators for Respondents. Consistent with the cited sections providing for preference for union members, the record in the instant case discloses that under the past practices between the parties, no nonunion persons were hired, and, as late as December 11, 1959, when Respond- ents proposed that the publishers might hire stereotypers, "regardless of Union affiliation" should Respondents not furnish them upon request, the same paragraph further provided that the "foremen shall not be required to replace such outside help with Union stereotypers during said day or night." Stated more realistically, this provides that the outside or nonunionman would have to be replaced on the following shift by a member of Respondent Local. In- deed. the controlling role of the International laws is shown by the fact that during the October meetings an issue arose concerning the use of apprentices in the last year of their apprenticeship. International Representative Robinson proceeded to visit the stereotype department of The Oregonian to ascertain the existing practice. He returned to the meeting and announced that the men were being used contrary to International laws and that this practice had to cease. These were the laws in- corporated by reference in the previous expired contract. Analysis and Conclusions One can hardly doubt from the foregoing pattern of events that Respondents were adamantly insisting that the publishers comply with International and local laws. After much talk, Respondents came up with a proposal on September 30 consisting of a list of laws to be included in the body of the contract. Theoretically this list had been arrived at by eliminating any possible unlawful language. Yet it contains, as noted, most of the provisions of the International and local laws as well as refer- ences to the International constitution, all of which establish an elaborate closed-shop hiring system. Even its purported saving clause notes only that "The language and meaning of these sections are not to be changed in any other way than to bring them into con- formity with the intent of the Labor Laws of the United States of America." The simple fact is that the laws referred to theiein were not to be changed; indeed, they could not be changed because the local representatives well knew and the pub- lishers were on notice that the International constitution which was binding upon the local did not permit it to change or modify any International laws. In fact, the local was enjoined from engaging in arbitration concerning these laws Any 9 As is apparent, many of these clauses are identical with those in the International constitution and laws PORTLAND STEREOTYPERS', ETC., UNION NO. 48 803 agreement by the local purporting to do so would have had no standing because the International was forbidden to approve it As noted, there is not an iota of evidence that any one other than a member or a probationary member of Respondents ever worked in the stereotype departments of the publishers . And when the various laws are considered in the light of actual prac- tice, one can only conclude that Respondents were determined to exert control over the hiring practices of the publishers and to maintain this system under which un- lawful preferential treatment was guaranteed to their members . This is reflected precisely in the statement by International Representative Badgeley during the negoti- ations that "You've had the closed shop for years . what's wrong with it?"; the publishers had been under contract with Respondents for many years 10 The insistence of Respondents upon these provisions warrants a finding that the Board's long-standing view on savings clauses has been a sound one. A contrary view would ignore the fact that the so-called expurgated list for which Respondents struck contained article XIII of the International constitution forbidding local unions to sign any contract providing that the Union could not force journeymen or foremen members to live up to union laws. The Board has regularly held in closely similar cases that contract demands such as those found herein are violative of Section 8(b) (2) of the Act. International Typographical Union, et al. (Haverhill Gazette), 123 NLRB 806, enfd. 278 F. 2d 6 (C.A. 1); International Typographical Union, 86 NLRB 1041 and 87 NLRB 1418, enfd. in part American Newspaper Publishers Association v. N.L.R.B., et al., 193 F. 2d 782 (C.A. 7); and Hillbro Newspaper Printing Company , Division of Hearst Publishing Company, Inc., 127 NLRB 591. In these cases, the Board has consistently held that a general savings clause did not purge a contract from otherwise unlawful provisions . It perforce follows that strike activity for such clauses is equally unlawful. This, of course, ties in with the rule of long standing in related cases that the Board will not honor a savings clause which does not specify precisely which provisions in a contract are not to be opera- tive. Red Star Express Lines of Auburn , Inc., v. N.L.R .B. 196 F. 2d 78 (C.A. 2). N.L.R.B. v. Gottfried Baking Co., Inc., et al., 210 F. 2d 772 (C.A. 2); N.L.R.B. v. Gaynor News Company, Inc., 197 F. 2d 719 (C.A. 2) affd. 347 U.S. 17; N.L.R.B v. F. H. McGraw and Company, 99 NLRB 695, enfd. 206 F. 2d 635 (C.A. 6); N L R.B. v. Broderick Wood Products Company, 261 F. 2d 548 (C.A. 10); and International Typographical Union , AFL-CIO (Haverhill Gazette ) v. N.L.R.B. 278 F. 2d 6 (C A. 1). I am aware that there are two expressions from courts of appeals to the contrary, in Honolulu Star-Bulletin Ltd. (Honolulu Typographical Union #37, Intervenor) v. N.L.R.B. 274 F. 2d 567 (C.A.D.C.), and N.L.R.B. v. News Syndicate Company, Inc. and New York Mailers' Union No. 6, International Typographical Union, AFL- CIO, 279 F. 2d 323 (C.A. 2 ). Of course, Board policy is binding upon me and will be followed herein . Moreover, it can be readily demonstrated that the facts in the instant case are distinguishable from and indeed stronger than those in the last cited cases. (1) The view of the two contrary decisions is that the savings clause purges the illegality of the union laws incorporated by reference and is to be distinguished from a situation where an identical savings clause purports to purge the illegality from a ,contract in which the illegal provisions are included on the face of the contract. In the latter situation, it is recognized that the savings clause accomplishes what it purports to do. In terms of contract law, this is a distinction without a difference, because no meaningful distinction can be made between the two situations . I believe it to be a "It is true that Respondents did agree to a clause proposed by the publishers on October 12 that membership in a labor oganization would not be a condition of employ- ment. However , on November 3, prior to the strike , Respondents still adamantly In- sisted upon physical inclusion in the contract of the unlawful provisions of the con- stitution and laws. Furthermore, Respondents were insisting throughout the negotiations upon section 1 of the proposed contract providing that situations of absent employees were to be covered only by "a member" of Respondent local. Bearing in mind that upon the commencement of the strike both parties reverted to their original proposals , on the posture most favor- able to Respondents , it appears only that for a limited period respondents were willing to accept a clause that membership in it labor organization would not be a condition of employment. This was a period from October 12 through November 17, the first meeting after the strike. I find , therefore , that in any event Respondents did not accept this provision prior to October 12 and that the strike objectives subsequent to November 17 .consisted of all four objectives treated herein. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fair statement that it is elementary contract law that incorporation by reference of clauses which are in existence and properly identified has precisely the same legal effect as if the clauses were set forth explicitly in the body of the contract. All authorities seem to agree that the test in the present situation is whether a natural and foreseeable consequence of the contract language is to encourage union membership. One court has stated, "An employee cannot be expected to predict the validity or invalidity of particular clauses in the contract, and will feel compelled to join the Union where a Union-Security clause of questionable validity exists, if only as a hedging device against a possible future upholding of the clause." N.L.R.B. v. Gaynor News Company, supra. The Court of Appeals for the First Circuit has recognized that employees reading the limitation in the incorporating clause would have equal reason in either situation to believe that they could refrain from union membership only at the risk of their jobs. It stated, "We perceive no reason why the coercive effect of the illegal clauses would be lessened if, as in this case, they are incorporated into the contract, rather than written into the contract itself." International Typographical Union v. N.L.R.B., supra. It seems to me that the predicament of the employee or applicant who is presum- ably a layman untutored in labor relations is highlighted by the very divergencies of these opinions. He is called upon to evaluate the phrase, "which do not conflict with the contract" or the Labor Management Relations Act. Firstly, this presupposes that he is qualified, in his own opinion if not by a State board of bar examiners, to give himself a legal interpretation of contract law in an area where the courts are in conflict. Secondly and more significantly, assuming the hurdle of legal qualifica- tions can be cleared, which interpretation of the Act is he to follow? Is it to be that of the Board; that of the Court of Appeals for the First Circuit and other circuits as expressed in the International Typographical Union case, supra; or that of the Court of Appeals for the District of Columbia in the Honolulu Star Bulletin decision? (2) Even if the last view were followed, the instant case is distinguishable because that court recognized that illegal provisions on the face of the contract are not purged of illegality by a general savings clause. And here Respondents on September 30 asked to include vebatim within the four corners of the contract the unlawful con- stitution and laws clauses enumerated in their proposal. Moreover, aside from the constitution and laws, the contract proposal itself contains on its face several unlawful clauses in relation to the procurement of substitutes and the issuance of orders by union foremen. I do not believe that the rationale of Honolulu goes so far as to ac- cept this; nor do I see how it could in logic (3) The instant facts are further distinguishable because in both contrary cases the courts relied on the fact that a number of nonunion men were on the payroll of the employers. Here such is not the case. Bearing in mind the role played by the chapel chairman in hiring personnel; the statements that the union negotiators could not depart from International laws; and the union proposal as late as December 11 that any nonunion employees hired had to be replaced by union members no later than the next shift, the conclusion is inescapable that Respondents intended the con- tinuation of the discriminatory practices required by the laws and their explicit in- clusion in the contract proper. (4) As noted, it is manifest that the savings clause was not intended to affect other clauses already on the face of the contract. The Court of Appeals for the Fifth Circuit has recently .pointed out that "when the Constitution or By-Laws of the Inter- national union requires Member-foremen to hire only Union men, this is evidence in itself of a discriminatory hiring practice. Here, in addition, there was testimony that the Union made it impossible for the Company to hire non-Unon members. Such conduct on.the part of the Union violated Section 8(b) (2) and (1) (a) of the Act." N.L.R.B. v. Local Union No. 450, International Union of Operating Engineers, AFL-CIO (Tellepsen Const. Co.), 281 F. 2d 313 (C.A. 5). I also believe that the language of the Supreme Court in The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Com- pany) v. N.L.R.B., 347 U.S. 17, 40-42 is applicable here. The Court stated: "Thus Sections 8(a)(3) and 8(b)(2) were designed to allow employees to freely exercise their right to join unions, be good, bad or indifferent members, or abstain from join- ing any union without imperiling their livelihood . . . This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payments of union dues and fees ... No other discrimination aimed at encouraging employees to join, retain membership, or stay in good standing in a union is condoned." [Emphasis supplied.] It logically follows that an agreement which conditions employment upon com- pliance with unlawful union rules and regulations runs contrary to the Supreme PORTLAND STEREOTYPERS, ETC., UNION NO. 48 805 Court's summary of congressional purpose. As stated by the Court of Appeals for the Tenth Circuit, "The rule is clear: When the insulation of the Act between the rights of employment and organization is pierced by the employer or union for the enforcement of union rules, valid union provisos excepted, no direct evidence of specific intent to encourage membership in a labor organization is required. The natural consequence of such on-the-job discrimination is to strengthen the union control. Although .the union may prescribe reasonable rules for membership and its reten- tion, the Act prohibits the enforcement of such rules by the use of employment as a tool of discrimination.. . " N.L.R.B. v. Brotherhood of Painters, Decorators & Paperhangers of America, etc. (Spoon Tile Co.), 242 F. 2d 477 (C.A. 10). I find, in view of all the foregoing circumstances, that by insisting upon and striking for contract provisions giving them control over the manning of machines and the hiring of substitute employees when coupled with compulsory union membership for foremen and the incorporation into the contract of the constitution and bylaws of Respondent local and the constitution and the general laws of Respondent Interna- tional containing the various discriminatory features set forth herein, Respondents have caused or attempted to cause the publishers to discriminate against employees in violation of Section 8(a)(3) of the Act and have thereby engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. See The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v. N.L.R.B., supra; N.L.R.B. v. Puerto Rico Steamship Association, Bull Insular Line, et al. v. N.L.R.B., 281 F. 2d 615 (C.A.D.C.); and N.L.R.B. v. National Maritime Union of America, et al. (The Texas Company), 175 F. 2d 686 (C.A. 2). D. Violations of Section 8(b)(3) Appropriate Unit and Majority Representation Therein The complaint alleges, Respondents' answer admits, and I find that all employees of the stereotype departments of the Oregon Daily Journal and The Oregonian in Portland, Oregon, excluding foremen 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. The complaint further alleges, Respondents' answer admits, and I find that at all times material herein Respondent Local has been the exclusive representative of the aforesaid employees for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. The Issue; Analysis The complaint alleges that by insisting upon and striking for the four conditions or proposals treated hereinabove, Respondents have engaged in unfair labor practices within the meaning of Section 8(b) (3) of the Act. It also alleges a similar violation in that Respondents, after the commencement of the strike, allegedly insisted upon additional provisions as a condition to the execu- tion of a contract, viz (4) all employees (stereotypers and others) who had respected Respondents' picket line were to be rehired and (2) contracts signed by all other labor organizations with the publishers were to be given the same expiration date as any that might be agreed upon by the parties. The facts as to the four prestrike and strike conditions are already substantially reflected hereinabove. As to the two added ones, the record discloses as follows. The first meeting after the commencement of the strike took place on November 17, 1959. Various other crafts had observed the picket lines and although the record is vague in this respect, there had been some replacements of striking stereotypers as well as members of other crafts. The employer representative announced at this meeting that they were reverting to their original proposals. Cotner, in behalf of Respondents, then announced that they were doing likewise. According to Morrish, and I so find, Cotner stated that because of the strike, Respondents were adding some new proposals, viz, that as a condition of settling the strike by Respondents, all employees on strike or who had been fired were to be restored to their jobs. Another union representative disclosed that this had reference to certain drivers represented by the Teamsters who had been terminated at one of the papers. Cotner stated that the publishers had to "re-hire all the strikers to their original jobs as a condition of settlement for the Stereotypers" and that the publishers "have to arrive at a settlement with everyone whose contracts have expired or are about to expire, so that when we come back to work, it will be on the basis . . . of all 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crafts or none." The union representatives also proposed that there be common expiration dates for all these contracts." The testimony of Haines was in substantial agreement. As he put it, the publishers were told that they "would have to settle or otherwise agree on the terms under which all the other crafts would return to work, or none of them would . . . anyone who had been fired . would have to be reinstated." The minutes of the November 17 meeting are in substantial agreement as they attribute to Cotner a statement that "as you know, all the other crafts are out at this time . the other crafts are quite involved in this thing. We will not return to work until all these contracts are signed." At the November 24 meeting Union Representa- tive McDonald, according to the minutes, proposed, "Let's have all contracts expire at once." Haines protested, pointing out that this was well nigh impossible as there were seventeen crafts in the plants. I have heretofore found that Respondents were insisting upon and striking for their proposals on manning and the use of substitutes and that these proposals were intertwined not only with their conduct directed to union membership for foremen but also to the incorporation of the various clauses in the International constitution and general laws and in the local constitution and bylaws. It appears to me that the language used by the Court of Appeals for the First Circuit in International Typographical Union v. N.L.R.B., supra, is appropriate here. The Court stated: "And we think that in holding out for the [foreman] clause the unions also refused to bargain collectively in violation of Section 8(b)(3) . . . to hold that good faith is a defense to the charge of refusal to bargain when the contract provision insisted upon is illegal per se is to put a premium on . . blind in- transigency. Thus, as to this clause, the unions are not saved by the finding that they negotiated with the genuine desire to arrive at a contract. . . . bargaining demands for, and a strike aimed at forcing an employer to accede to, the inclusion of an obviously illegal provision in a collective bargaining contract justify enforcement of a cease and desist order . . In discussing the incorporation of the general laws of the I.T.U., the labor organiza- tion there involved, the Court stated: The question now arises whether a union is to be found guilty of unfair labor practices when it bargains for and strikes to coerce an employer to consent to the inclusion in a collective bargaining agreement of clauses of honestly dis- putable validity at the time of the union action. We think this question must be answered in the affirmative . . . this court pointed out in a comparable situa- tion in N.L.R B. v. Local 404, etc., 1 Cir., 1953, 205 F. 2d 99, . . . the unions were acting at their peril, that is to say, at the risk of an enforcement order, when they sought to compel the employers to submit to their demand for in- clusion of the ITU general laws in the collective bargaining contracts under negotiation. It is true that the objections by the publishers to Respondents' position on manning and the use of substitutes were in large part predicated upon economic grounds. However, these union demands were intertwined with simultaneous demands concern- ing foremen and the incorporation of the union laws, and the publishers specifically challenged all four demands on these grounds. I find, therefore, under the circum- stances of this case, that Respondents' conduct in all four areas must be considered together and so evaluated. As demonstrated, Respondents on November 17 and 24 did add demands upon the publishers concerning the reinstatement and tenure of employees in a unit or units other than that represented by Respondent Local. A demand was also made that the contracts with all other crafts be signed by the publishers and that they have a common expiration date before members of Respondents returned to work. Although the evidence is sketchy in this area, it does not disclose that Respondents withdrew the proposals. As the General Counsel contends, these two poststrike conditions involved demands for contract clauses on matters involving other units of employees and did not per- tain to the bargaining unit represented by Respondent Local. Hence, Respondents were demanding that the employers bargain over employees whom they did not represent and in respect to whom there was no statutory duty to bargain Charles T Douds, Reg Dir. v. International Longshoremen's Association, Independent, et al. (New York Shipping Assn.), 241 F. 2d 278 (C.A. 2). "The record does not disclose the precise contractual picture involving the other crafts. It appears that a substantial number of the other crafts did not cross the picket line PORTLAND STEREOTYPERS', ETC., UNION NO. 48 807 In Local 164, (International) Brotherhood of Painters et al. (A. D. Cheatham Painting Company), 126 NLRB 997, the Board pointed out that "a union unlawfully refused to bargain as a matter of law by insisting that any agreement reached cover employees in a unit different from that for which the union was the statutory repre- sentative. . In view of the fact that the subject matter of the proposed Section .. . relates to the conditions of employment of employees outside the unit repre- sented by Local 164 and is therefore not a mandatory subject of bargaining," this con- stituted conduct violative of Section 8(b) (3). It is true that N.L.R.B. v. Insurance Agents' International Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477, holds that the concurrent use of broad economic weapons, including unprotected concerted activities, to compel one party to accede to the otherwise lawful demands of the other party, does not per se constitute evidence of bad-faith collective bargaining. The Supreme Court made no reference therein to its line of refusal to bargain cases based upon insistence on illegal conditions. The instant case, therefore, falls within the line of cases holding that insistence upon illegal provisions as a condition to bargain constitutes a refusal to bargain in good faith. N L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342. Needless to say, Respondent Local and Respondent International were equally in- volved in the present case. International officers to the top level participated in the negotiations and indeed the International sanctioned the strike. And any contract obtained, as noted, required International approval. Under the circumstances pres- ent herein, the International as well as the local is chargeable wherever the unfair labor practices have been found. International Typographical Union v. N.L.R.B., supra; American Newspaper Publishers Association v. N.L.R.B., supra; Millwrights' Local 2232, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al. (Farnsworth & Chambers, Inc.), 122 NLRB 300; and International Brother- hood of Electrical Workers, et al. (Texlite, Inc.), 119 NLRB 1792, enfd. 266 F. 2d 349(C.A.5). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connec- tion with the operations of the publishers described in section 1, 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 Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and 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, I make the following: CONCLUSIONS OF LAW 1. Portland Stereotypers' and Electrotypers' Union No 48 and International Stereotypers' and Electrotypers' Union of North America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2. Oregonian Publishing Co . and Journal Publishing Co. are employers within the meaning of Section 2(2) of the Act. 3. All employees of the stereotype departments of Oregonian Publishing Co. and Journal Publishing Co., excluding foremen and supervisors , constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Portland Stereotypers' and Electrotypers ' Union No. 48 and International Stereotvpers' and Electrotypers' Union of North America. AFL-CIO, at all times material herein have been and now are the exclusive representatives of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain collectively with Oregonian Publishing Co. and Journal Publishing Co., Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (3) of the Act. 6. By demanding contract clauses and by engaging in a strike for same in order to cause or attempt to cause Oregonian Publishing Co. and Journal Publishing Co. to discriminate against employees in violation of Section 8(a)(3) of the Act, Respond- ents have engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. Sob DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. By demanding contract clauses and by engaging in a strike for same to force Oregonian Publishing Co. and Journal Publishing Co. to hire only foremen who are union members , Respondents have restrained and coerced the above-named em- ployers in the selection of representatives for the adjustment of grievances , thereby engaging in unfair labor practices within the meaning of Section 8(b) (1) (B) of the Act. 8. 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.] Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America [Valencia Baxt Express, Inc.] and Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, P.R. Divi- sion, AFL-CIO. Case No. 24-CC-76. June 05, 1962 DECISION AND ORDER On February 20, 1962, Trial Examiner Benjamin Lipton 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. Thereafter, the Respondent filed exceptions to the Intermediate Report, incorporating therein its brief to the Trial Examiner. 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 Fanning and Brown]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommended order of the Trial Examiner.' ORDER The Board hereby adopts the Recommended Order of the Trial Examiner. While approving the Trial Examiner's finding of the continued validity of the certifica- tion at the time of the picketing here, in reaching our decision we are not required to, and do not, rely on his more broadly stated principle that only changed conditions which are reflected by a later ruling of the Board may impair the continuing validity of a certification. 137 NLRB No. 95.