Hawaii Press Newspapers, Inc.

HAWAII PRESS NEWSPAPERS, INC. 99 Hawaii Press Newspapers, Inc., Petitioner and Honolulu Typo- graphical Union No. 37.1 Case No. 37-RM-57. July 30, 1965 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held on March 30, April 21, and April 27,1965, before Hearing Officer Dennis R. MacCarthy. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer has filed a brief. Pursuant to Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel [Members Fanning, Brown, and Jenkins]. 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 organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act? 4. As agreed to by the Employer and the Union, the following employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All com- posing room employees, including photon operators, justowriter oper- ators, and employees engaged in page makeup, proofreading, and advertising pasteup, but excluding management representatives, office and clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act. 5. The parties are in dispute as to the voting eligibility of nine of the employees who went out on strike on April 19, 1963. All 15 of the Employer's composing room employees, including the 9 involved herein, went out on strike at that time. Following the filing of unfair labor practice charges, the Employer and the Union entered into a settlement agreement, wherein the Employer agreed to cease from cer- tain conduct, to recognize and bargain with the Union, and, upon 1 The Union's name appears as amended at the hearing 2 At the hearing, the Employer declined to recognize the Union as the bargaining repre- sentative of its composing room employees until it was certified by the Board See Ksngsport Press, Inc., 150 NLRB 1157. 154 NLRB No. 17. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unconditional request therefor, to offer immediate reinstatement to any employee who, "as an unfair labor practice striker," participated in the April 19 walkout. The Board's Acting Regional Director approved the settlement on July 12, 1963. Following the settlement, the Employer met and bargained with the Union. The Regional Director subsequently closed the unfair labor practice case on the basis of the Employer's compliance with the settlement agreement. However, the strikers did not request reinstatement and the strike continued. Employer Representative Baldwin testified without contradiction that, in several bargaining sessions during July and August 1963, Union negotiators said that the strike would go om until they obtained a con- tract. The parties failed to reach an agreement and the strikers pick- eted continuously until about November 1964, and only sporadically thereafter. At the hearing, nine strikers testified that they had not found such employment as extinguished their interest in returning to the Employer. But one of the strikers admitted that his willingness to return was contingent upon the existence of an agreement with the Union. It appears that the Employer hired striker replacements and converted to a new method of operation in which only 11 employees perform the composing room work. The Union does not contend that the strikers have not been permanently replaced, its position being that irrespective of replacement, the strikers are eligible to vote as unfair labor practice strikers. In view of the foregoing, we agree with the Employer that, the aforementioned nine strikers are ineligible to vote. Even assuming, arguendo, that the strike began as an unfair labor practice strike, the subsequent events, including the settlement agreement, the Employ- er's compliance therewith, and the statements of a contractual objec- tive, show that the strike's continuation after the settlement was an economic one, and that the participants therein became economic strik- ers.3 By virtue of the permanent replacement of strikers4 and the lapse of more than a year's time,5 and the partial elimination of unit jobs, we find that the nine strikers in question are not eligible to vote in the election we direct herein-' [Text of Direction of Election omitted from publication.] 3 See Union Manufacturing Company, 123 NLRB 1633, 1635. 4 Pacific Tile and Porcelain Company, 137 NLRB 1358, 1360. 5 See Section 9(c) (3) 6 We need not consider the other reasons advanced by the Employer for finding the strikers ineligible to vote.