Lightner Publishing Corporation of Illinois

In the Matter of LIGHTNER PUBLISHING CORPORATION OF ILLINOIS and CHICAGO PRINTING PRESSMEN 'S UNION No. 3, CHICAGO TYPOGRAPH- ICAL UNION No. 16 Case No. C-633.-Decided May 26,19-39 Magazine Publishing Industry Interference , Restraint, and Coercion-Units Appropriate for Collective Bargaining : pressmen, feeders, and pressroom appren- tices ; compositors, linotype operators , stonemen , and make-up men ; two units, each appropriate for bargaining purposes ; well-established crafts in printing industry ; no objection raised by employerRepresentatives : proof of choice : testimony of employees and Union officials-Collective Bargaining : lack of negotiation in good faith ; refusal to enter into serious discussion of proposals; expressed opposition to Unions ; threat to close plant ; employer ordered to recognize and bargain with Unions as employees' exclusive bargaining repre- sentative-Strike: caused by employer's unfair labor practices-Reinstatement Ordered: strikers upon application ; dismissing newly hired employees, if neces- sary ; preferential list ordered-Back Pay: awarded to strikers if they are refused reinstatement or placement upon preferential list. Mr. Stephen M. Reynolds, for the Board. Mr. Victor A. Pascal, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been filed on behalf of Chicago Typographical Union No. 16, herein called Union No. 16, and Chicago Printing Pressmen's Union No. 3, herein called Union No. 3, the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illi- nois), issued its complaint dated April 5, 1938, against Lightner Publishing Corporation of Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and accompanying notice of hearing were duly served upon the re- spondent, Union No. 16, and Union No. 3. On April 11, 1938, the respondent filed an answer in the form of a verified letter denying 12 N. L. R. B., No. 121. 1255 1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the alleged unfair labor practices and stating that it did not intend retaining counsel in the proceeding. Pursuant to the notice, a hearing was held on April 14, 1938, at Chicago, Illinois, before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. The respondent did not appear at the hearing. The Board appeared, was represented by counsel, and participated in the hearing. Full opportunity to be heard, to exam- ine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hear- ing, the Trial Examiner made several rulings on motions. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 12, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act and recommended that, upon request, the respondent bargain collectively with Union No. 16 and Union No. 3, as the exclusive representatives of all the employees in the respective units therein found to be appropriate for the purposes of collective bargaining. In a letter dated May 24, 1938, sent to the Board, the respondent excepted to the admission of certain evidence at the hearing and apparently excepted to the Trial Examiner's findings. The Board has considered the exceptions and, save to the extent that the findings below depart from those of the Trial Examiner, finds that the excep- tions are without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Lightner Publishing Corporation of Illinois is an Illinois corpora- tion maintaining its plant at Chicago, Illinois. It is engaged in pub- lishing three monthly magazines titled "Hobbies," "Automatic Age," and "All-Pets." The combined circulation of the 3 publications totals approximately 36,000 copies monthly, of which 34,300 are sent to destinations outside the State of Illinois. All the paper used by the respondent is sent to it at Chicago from the State of Wisconsin at the rate of approximately one carload every 2 months. II. THE ORGANIZATIONS INVOLVED Chicago Typographical Union No. 16, a local of the International Typographical Union of North America, is a labor organization whose LIGHTNER PUBLISHING CORPORATION OF ILLINOIS 1257 membership includes printers , linotype operators , and floormen in the respondent's employ. Chicago Printing Pressmen's Union No. 3, a local of the Interna- tional Printing Pressmen and Assistants' Union of North America, is a labor organization admitting to its membership pressroom workers employed by the respondent. III. THE UNFAIR LABOR PRACTICES A. The appropriate unit The complaint alleges that all the pressmen, feeders, and pressroom apprentices employed by the respondent constitute an appropriate bargaining unit within the meaning of Section 9 (b) of the Act and that all the compositors, linotype operators, stonemen, and make-up men in its employ constitute a distinct unit, likewise appropriate for the purposes of collective bargaining. Although the respondent met with the representatives of Union No. 16 and Union No. 3 and also interposed an answer herein, at no time did it raise objection to these units. The units as alleged follow well-established craft lines in the printing industry, and the record reveals no reason for deviating from the units set forth in the complaint. We find that all the pressmen, feeders, and pressroom apprentices employed by the respondent, and all the compositors, linotype opera- tors, stonemen, and make-up men in its employ constitute two distinct units, each appropriate for the purposes of collective bargaining, and that each of said units will insure to the respondent's employees the full benefit of their right to self-organization and to collective bar- gaining and will otherwise effectuate the policies of the Act. B. Representation by 'Union No. 16 and Union No. 3, respectively, of the majority in each of the appropriate units The organizer for Union No. 16 testified that, on September 20, 1937, nine employees at the plant were eligible to its membership, that all were members of the organization, and that they were employed as linotype operators, printers, and floormen. Seven of the nine mem- bers who had been employed by the respondent as compositors, hand- men, make-up men, floormen, printers' helpers, or apprentice printers, testified as to their affiliation with the organization. On September 20, 1937, there were three employees in the unit com- posed of pressmen, feeders, and pressroom apprentices, two of whom were then members of Union No. 3. The third was a member of Franklin Union No. 4, a local of the International Printing Pressmen and Assistants' Union of North America which had authorized Union No. 3 to bargain in behalf of its member employed by the respondent. 1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing, the three employees testified as to their union mem- bership. We find that on September 20, 1937, and thereafter, Union No. 16 and Union No. 3, respectively, represented a majority of the employees in each of the appropriate units, and were, therefore, pursuant to Sec- tion 9 (a) of the Act, the exclusive representatives of all the employees in such units for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. C. The refusal to bargain On September 20, 1937, a union committee including representa- tives of Union No. 16 and Union No. 3 met with O. C. Lightner, the respondent's president. Stating that a majority of the respondent's employees had designated them as bargaining representatives, the committee tendered to Lightner the employees' union membership applications for inspection. Lightner was not interested in the cards and refused to look at them. Kuhfuss, a representative of Union No. 3, then stated that the committee desired to negotiate an agree- ment with reference to the employees' wages, hours of work, and working conditions. He attempted to state the unions' demands in detail but was unable to proceed as Lightner interrupted him with a lengthy harangue on matters unrelated to the unions' demands, complaining of governmental interference with business, stating that the committee members wore better clothes and drove better auto- mobiles than he did, and alleging that the respondent's business was being conducted at a loss. He stated that he was not interested in considering the union's proposal for a gradual change in the em- ployees' salaries and other working conditions so that they might eventually coincide with the unions' scales. The committee asked Lightner to reconsider their proposals for a week, when they would return for his answer. Lightner answered that he was determined not to alter his position, and the meeting was adjourned. The respondent's employees met on September 27, and after re- ceiving a report of the September 20 conference, authorized the unions' representatives to call a strike at the plant in the event that they were unable to reach an agreement with the respondent. In a further attempt to negotiate an agreement, the committee again met with Lightner on September 29. Substantially the same conversation occurred as on September 20. Lightner was adamant in refusing to consider the unions' proposals. He characterized the employees' efforts to bargain collectively as a "little difficulty," com- plained that his competitors were "sicking the union onto him," and threatened to shut down the plant. The committee informed Light- LIGHTNER PUBLISHING CORPORATION OF ILLINOIS 1259 ner that the employees had authorized a strike at the plant but, as he did not change his position, the meeting terminated. The strike which had been authorized became effective on Sep- tember 30, 1937, when the employees left the plant because of the respondent's refusal to bargain. Picket lines were established. After having its printing work done elsewhere for a time, the respondent hired strikebreakers and resumed its operations at the plant. The strike still continued at the time of the hearing. In a further effort to resolve their differences with the respondent, the unions' representatives met with Lightner on October 7. He con- tinued to contend that the respondent could not afford to increase employees' salaries, maintaining that its business was being conducted at a loss and that its competitors had instigated the unions' bargain- ing efforts. As Lightner persisted in refusing to consider their pro- posals, the unions proposed restoring the status quo by directing the employees -to return to work. Lightner refused to reinstate the strikers, alleging that he had been informed that one had called him "a dirty name," another had threatened to break a window, and he did not like the "general disposition" of a third. The meeting terminated without any agreement having been reached. In a letter dated October 25, 1937, to Herbert Voelz, one of the striking employees, Lightner stated : There is nothing to avail you in sticking to the bunch because the rest of them are never going to work here under any circum- stances as long as I am alive. You can stay on the union payroll the rest of your life if you want to but I would advise you to get yourself a job, either here or somewhere else, because there isn't the slightest chance under any circumstances at any time or under any conditions that some of those men will ever work here again. In spite of the previous rebuffs, the committee persisted in their attempt to bargain with the respondent and again met with Lightner on November 17 and with Waldron, the respondent's attorney, on December 3 but to no avail. In testifying with reference to the meeting with Waldron on December 3, Joseph B. Roche, secretary of the organization committee of the International Printing Pressmen and Assistants' Union of North America, stated : Then I suggested to him, "If you are really sincere, Mr. Waldron, suppose we forget everything that has transpired up to this time and let all concerned each start right from scratch. You offer us whatever kind of proposition you have to offer." He told me very plainly they had no sort of proposition to offer and he asked us in turn, "What have you fellows got to offer?" So we offered him the same proposition we had offered Mr. Lightner, 1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the men be returned to work immediately without discrimi- nation and we could then go into a conference in regard to wages, hours and conditions. He said they wouldn't even consider that. I think that is about the gist of the meeting. After the meeting was broken up Mr. Waldron walked out into the anteroom with us and he suggested we call the whole thing off because he knew as well as Lightner knew this wasn't a Union proposition at all, it was entirely a more or less proposition of the competitors of Lightner, if we had any sense we would call this whole thing off before we got into hot water. It is apparent that the respondent refused to conduct negotiations with reference to the proposed contract or the reinstatement of the striking employees. While an employer is not under a duty to accede to whatever par- ticular terms may be sought by a union, Section 8 (5) of the Act requires that he accept the spirit of collective bargaining-by accord- ing recognition to the bargaining representatives of his employees and conducting negotiations in good faith in an honest effort to arrive at a mutually satisfactory agreement.' The record clearly evinces the respondent's preconceived intention of evading this obligation. Light- ner's opinion of the committee and its proposals is reflected in articles under his name in the respondent's publications referring to "extor- tionists" and "racketeers" preying upon industry under the protection of the Act. In fact, he was not interested in ascertaining whether the committee actually had been designated as the employees' bargaining representative, and refused to look at the unions' membership applica- tions which were tendered to him at the first meeting. During his meetings with the committee, Lightner offered no suggestions for changes acceptable to him and prevented any serious discussion which might result in an agreement, by confining his answers to the unions' proposals to a discussion of governmental interference with business, hobbies, the efforts of his competitors to "sick the union onto him," and other similar matters extraneous to the issues. Although the respondent refused to negotiate with the committee with reference to reinstating the striking employees, it attempted to secure their return to work without the approval of the unions. On October 25, 1937, Lightner sent letters to three strikers offering them reemploy- ' Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel , and Tin Workers of North America , Lodge Nos. 64, 1010, and 1101, 9 N L. R. B . 783 In Globe Cotton Mills v. National Labor Rela- tions Board, 103 F. (2d) 91, (C. C A. 5), decided March 30, 1939, the Court stated: "We believe there is a duty on both sides, though difficult of legal enforcement , to enter into discus- sion with an open and fair mind, and a sincere purpose to find a basis of agreement touch- ing wages and hours and conditions of labor, and if found to embody it in a contract as specific as possible , which shall stand as a mutual guaranty of conduct , and as a guide for the adjustment of grievances." LIGHTNER PUBLISHING CORPORATION OF ILLINOIS 1261 ment and setting forth his opinion as to the futility of their union membership. It is apparent that the respondent persisted in a course calculated and intended to avoid serious bargaining negotiations with the unions. Accordingly, we find that the respondent has refused to bargain with Union No. 16 and Union No. 3 as the exclusive representatives of its employees in appropriate units and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We also find that the strike of the respondent's employees, which began on September 30, 1937, was caused by the respondent's refusal to bargain. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and have led, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. THE REMEDY As we have found that the respondent refused to bargain with the representatives of its employees in appropriate bargaining units, we shall order the respondent to bargain collectively with Union No. 16 and Union No. 3 if requested to do so. Since the strike on September 30, 1937, was caused by the re- spondent's unfair labor practices, we shall, in accordance with our usual custom, order the respondent, upon application, to offer rein- statement to their former or substantially equivalent positions to those employees who went out on strike and have not since been fully reinstated. Such reinstatement shall be effected in the follow- ing manner : All employees hired after the commencement of the strike shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If, thereupon, by reason of a reduction in force there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondent' s usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees re- maining after such distribution, for whom no employment is imme- 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employ- ment in their former or in substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. Each of the employees thus ordered reinstated or placed on a preferential list shall also be entitled to back pay begin- ning 5 days after his application for reinstatement pursuant to our Order, in the event that the respondent does not reinstate him or place him upon a preferential list in accordance with our Order within such 5 days. The amount of back pay shall be a sum of money equal to that which each employee normally would have re- ceived as wages during the period commencing 5 days after the refusal to reinstate him or to place him upon a preferential list to the date of the offer of reinstatement or placement upon a prefer- ential list, less his net earnings 2 during that period. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Chicago Typographical Union No. 16 and Chicago Printing Pressmen's Union No. 3 are labor organizations, within the meaning of Section 2 (5) of the Act. 2. All the pressmen, feeders, and pressroom apprentices employed by the respondent constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Chicago Printing Pressmen's Union No. 3 was on September 20, 1937, and at all times thereafter has been, the exclusive representative of all such employees for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. All the compositors, linotype operators, stonemen, and make-up men employed by the respondent constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 2 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, Incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings, but, as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern- ment or governments which supplied the funds for said work-relief projects LIGHTNFR PUBLISHING CORPORATION OF ILLINOIS 1263 5. Chicago Typographical Union No. 16 was on September 20, 1937, and at all times thereafter has been, the exclusive representative of all such employees for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 6. By refusing to bargain collectively with Chicago Typographical 'Union No. 16 and Chicago Printing Pressmen's Union No. 3 as the exclusive representatives of its employees in the appropriate units, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (5) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Lightner Publishing Corporation of Illinois, Chicago, Illi- nois, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Chicago Printing Press- men's Union No. 3 as the exclusive representative of all its press- men, feeders, and pressroom apprentices; (b) Refusing to bargain collectively with Chicago Typographical Union No. 16 as the exclusive representative of all its compositors, linotype operators, stonemen, and make-up men; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining and other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Chicago Printing Pressmen's Union No. 3 as the exclusive representative of all press- men, feeders, and pressroom apprentices in its employ, and with Chicago Typographical Union No. 16 as the exclusive representa- tive of all compositors, linotype operators, stonemen, and make-up 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men in its employ, in respect to rates of pay, wages, hours of employ ment, and other conditions of employment; (b) Upon application, offer to its employees who went out on strike on September 30, 1937, and thereafter, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "The Remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (c) Make whole the employees ordered to be offered reinstate- ment for any loss of pay they will have suffered by reason of the respondent's refusal to reinstate them upon application, following the issuance of this Order, by payment to them, respectively, of a sum of money equal to that which each would normally have earned as wages during the period from five (5) days after the date of such application for reinstatement to the date of the offer of employment or placement upon the preferential list required by paragraph (b) above, less his net earnings during that period; deducting, however, from the amount otherwise due to each of said employees, monies received by said employees during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Immediately post notices in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) consecutive days, stating (1) that the respondent will cease and desist in the manner aforesaid, and (2) that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; (e) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith.