T. O. Metcalf Co.

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first bargaining collectively with the Union as the exclusive representative of its truckdriver employees, the Respondent has committed unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7 The General Counsel has not proved by a preponderance of the evidence that the Respondent (1) violated Section 8(a) (3) of the Act by discharging the employees named in the complaint, or (2) interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed by the Act, except by the acts and conduct found herein to have been violative. [Recommendations omitted from publication.] T. O. Metcalf Company i and Local 3, Amalgamated Lithogra- phers of America, Petitioner. Case No. 1-RC-6884. November 8, 1962 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Murray S. Freeman, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Leedom and Brown]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. The Petitioner seeks to represent a unit of all lithographic em- ployees formerly employed by Williamson Offset Company and cov- ered by a collective-bargaining contract with the Petitioner dated May 19, 1960, with the usual exclusions. The Intervenor and Metcalf contend that the petition is barred by two contracts covering the em- ployees Petitioner seeks to represent. Of these two contracts one is between the Intervenor and Contract Employers-which includes Metcalf-of the Graphic Arts Institute of New England, Inc., and covers a unit of pressmen on a multiemployer basis including Metcalf's pressmen. This agreement was effective July 1961 and runs until December 1963. The other contract is between Intervenor's sister 1 The Employer's name appears as amended at the hearing. 2 Boston Printing Pressmen 's Union No. 67, International Printing Pressmen and Assistants' Union of North America , AFL-CIO, hereinafter called the Intervenor, was permitted to intervene at the hearing on the basis of a contractual interest. 139 NLRB No. 59. T. 0. METCALF COMPANY 839 Local No. 18 3 and the Contract Employers and covers, infer ilia, press assistants. This contract, effective July 1961, runs until August 1964. The Pressmen and Metcalf contend that their agreements cover the em- ployees the Petitioner seeks' and, thus, that the petition filed on March 27, 1962, was untimely filed. The Petitioner maintains that the contracts are not a bar because they do not in fact cover these em- ployees. It does not question on other grounds the effectiveness of the contracts for bar purposes. At the time the Pressmen contracts were negotiated, the requested lithographic production employees were already represented by the Petitioner 5 and covered by a contract of 2 years' term beginning April 1960 between the Petitioner and the Contract Employers (Litho- graphic Division) which included Williamson Offset Company the then-corporate employer of the requested employees. Metcalf and the Pressmen, nevertheless, contend that their contracts cover the em- ployees and are bars because in March 1962 Williamson Offset was merged into Metcalf and its employees became an accretion to the multiemployer units represented by the Pressmen and covered by their contracts.' The Petitioner maintains that there has been no such accretion. Both Williamson and Metcalf have at all times here material been owned and operated by members of the Williamson family, and from about 1956 -until the 1962 merger each of the three brothers of the family owned approximately a one-third stock interest in each of the two corporations. During this period, the two corporations kept separate books and cost records and made separate tax returns. The "Williamson" employees, whom the Petitioner then represented and now seeks, were on a Williamson payroll separate from that of Met- calf which covered employees in the Pressmen's units. There was no interchange among the employees of the two Companies, and they were primarily under separate supervision. However, the plant and office of the two Companies were in the same building, Williamson occupy- ing generally the seventh and Metcalf the eighth floors. And the three Williamson brothers were the officers and directors of both cor- porations and managed both as a "triumvirate." Furthermore, there was a single production manager for the two firms and about 90 per- cent of the work done by Williamson was for Metcalf's account. Also the two corporations shared a switchboard and storage area, and 8 The Intervenor and Local No 18 were certified in 1944 as the representative of all Metcalf's pressroom employees Local No 18 was not served with notice of this proceed- ing and did not appear as a party * These 1961 agreements specifically cover lithographic as well as letterpress employees 5 The Petitioner had in fact represented such employees since 1949, first on a single- employer and later a multiemployer basis, having been certified in that year as representa- tive of a single -employer unit of lithographic employees. 8 About the time of the merger, Williamson refused to continue recognizing the Peti- tioner as representing its lithographic employees on the ground it no longer had any such employees. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerical work for both was done by employees of Metcalf, which charged Williamson for the work so done. The merger of William- son into Metcalf did not effect any material changes in the physical setup of the plants or in the supervision and methods of operation which prevailed prior to the merger. Consequently, we find in these circumstances that Williamson and Metcalf have at least since 1956 been for all managerial and operational purposes but one enterprise and, thus, under the Act a single employer.' In view of the foregoing, it is evident that the Williamson litho- graphic operations and the Metcalf printing operations have at all times material been, in effect, separate departments or divisions of the Employer. As the merger did not substantially alter this organiza- tion there is clearly no basis for finding that because of the merger, the Williamson employees became an accretion to the Metcalf units represented by the Pressmen. Furthermore, since the Employer rec- ognized the Williamson employees as part of a separate bargaining unit covered by a separate agreement at the time it entered into the current contracts with the Pressmen, there is similarly no basis for concluding in the face of this separate bargaining history for the lithographic unit that the Pressmen contracts were intended to cover such unit.' Accordingly, we conclude that the employees whom the Pe- titioner seeks are not covered by the Pressmen contracts and that those contracts do not, therefore, bar the petition. Consequently, we find that a question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2(6) and (7) of the Act. 4. As noted, the Petitioner seeks a unit limited to Williamson's off- set pressmen, assistant offset pressmen, and preparatory employees, all of whom it represented in the past. The Employer and Inter- venor contend, on various grounds, that the proposed unit is not appropriate. First, the Intervenor argues that the unit should be Association- wide, including the employees of all those employers covered by its contract with the Contract Employers. We find no merit in this contention as the Williamson employees have never been included in a multiemployer unit such as that urged by the Intervenor. To be sure, as the facts set forth above show, the requested employees were at one time a part of a multiemployer lithographic unit. However, about the time of the corporate merger which occurred a few weeks prior to the termination of the last contract covering the requested 7 See, George H. Braun, d/b/a Alamo-Braun Beef Company and George Braun Packing Co., 128 NLRB 32; F. ALioto Co, d/b/a Frank Alioto Fish Co. and Boat Seaworthy, a Partnership, 129 NLRB 27, footnote 2; Batlao Enterprises, Inc.; et al, 126 NLRB 1281 9 Moreover, each Pressmen contract included a provision that its recognition clause did "not apply to the lithographic ( offset ) Employees of Employers signatory to this agree- ment who are currently operating under a contract with the Amalgamated Lithographers of America." T. 0. METCALF COMPANY 841 employees, Williamson withdrew from the Contract Employers (Lithographic Division), canceling any authority it had to represent it, and notified the Petitioner of its actions. No contention has been raised in this proceeding that the withdrawal was not timely made and the Employer, as well as the Petitioner, takes the position that a single- employer unit would be proper. In these circumstances, we find that the proposed unit is not inappropriate because limited in scope to em- ployees of the Employer. Second, the Employer contends that only a companywide unit is appropriate. However, the Board has frequently found that units of lithographic production employees such as the Petitioner seeks are appropriate.' Furthermore, as the facts show, there is not present here that interchange of lithographic and letterpress employees or integration of operations that would render such a unit improper.10 Consequently, we find no merit in the contention that a unit limited to the Employer's'lithographic employees is not appropriate. Third, the Employer and the Intervenor contend that the requested unit is inappropriate in that it does not include all the Company's lithographic employees. It is clear that the proposed unit includes all the Williamson lithographic production employees whom the Peti- tioner has for over 10 years represented separately from Metcalf's letterpress employees. However, in 1961 and 1962 Metcalf installed three offset presses in its eighth floor plant area. The operators of such presses were treated as an accretion to the Pressmen's units and have been represented by the Pressmen and covered by their contracts. As the Petitioner does not seek to represent the Metcalf offset press- men, the Employer and the Intervenor argue, the proposed unit is inappropriate. The Board has frequently stated that all lithographic production employees in a plant constitute an appropriate unit." However, the Board is reluctant to disturb an established pattern of bargaining 12 and has, in determining the appropriateness of proposed lithographic units, deemed the history of bargaining a relevant consideration.13 It has, in consequence, concluded that units including some but not all lithographic employees may be appropriate.14 Accordingly, we find in view of the long history of representation of the Williamson litho- graphic employees by the Petitioner that such employees constitute in the circumstances an appropriate bargaining unit.l5 6 See, e.g, Allen, Lane, & Scott ; Casey & Andrews; Cuneo Eastern Press, Inc., et al, 137 NLRB 223 ; Printing Industry of Delaware, 131 NLRB 1100 ; Sutherland Paper Company, 122 NLRB 1284. 10 See Pacific Press, Inc., 66 NLRB 458 ; Allen, Lane, & Scott, supra. 11 See, e .g., Desaulniers and Company, 115 NLRB 1025. 12 See, e.g., The Hartford Electric Light Company, 122 NLRB 1421, 1424 18 See Printing Industry of Seattle, Inc, 116 NLRB 1883, 1885. 14 See Fisher Corporation, Ltd., 128 NLRB 504; Sutherland Paper Company, supra 15 As the Petitioner is seeking only to maintain its historic bargaining unit, National Cash Register Co, 119 NLRB 486, and Tongg Publishing Co, Ltd., 131 NLRB 174, are not applicable to the present situation. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARI> Upon the entire record herein, we find that the following employees of the Employer at its Boston, Massachusetts, plant constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act : All lithographic production employees formerly employed by Williamson Offset Company and covered by the Petitioner's contract with the Contract Employers Group (Lithographic Division) of the Graphic Arts Institute of New England, Inc., executed May 19, 1960, but excluding professional employees, guards, all other employees, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Water Tower Inn, a Partnership 1 and Chicago Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, Petitioner Water Tower Inn, a Partnership and Local 399, International Union of Operating Engineers, AFL-CIO,2 Petitioner. Cases Nos. 13-RC--8138 and 13-RC-8147. November 8, 1962 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions 3 duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a hearing was held before William D. Boetticher, hearing officer. Thereafter, and pursuant to Section 102.67(h) of the Board's Rules and Regulations, the Regional Direc- tor transferred the proceeding to the Board for decision. By orders dated March 21 and May 10, 1962, the Board remanded the proceeding to the Region for a further hearing. Another hearing was held be- fore Edward T. Maslanka, hearing officer. The hearing officers' rul- ings made at these hearings are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases, the Board finds : 4 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The questions concerning representation : The Employer operates a hotel in Chicago, Illinois. In Case No. 13-RC-8138, the Chicago Joint Executive Board of the Hotel and 1 The Employer's name appears as amended at the hearing. 2 This Petitioner' s name appears as amended at the hearing. 8 The petitions in these cases were consolidated for purposes of hearing and decision. * As the record and briefs adequately set forth the issues and positions of the parties, the request for oral argument , filed by Building Service Employees International Union, AFL-CIO, is hereby denied. 139 NLRB No. 77. 11