Adams Brothers Salesbook Co.

In the Matter of ADAMS BROTHERS MANIFOLD PRINTING COMPANY, DOING BUSINESS AS ADAMS BROTHERS SALESBOOK COMPANY, and TOPEKA TYPOGRAPHICAL UNION, No. 121, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-1250.----Decided November H1, 1939 Printing Industry-Interference, Restraint, and Coercion: persuading employ- •ees to resign from the Union ; anti-union statements-Unit Appropriate for. Col- lective Bargaining : all composing-room employees including foreman, no contro- versy as to-Representatives : proof of choice : designation of union by a major- ity of employees-Collective Bargaining : negotiation in good faith : parties in agreement on most issues except the Union's demand for a closed shop ; findings -insufficient to sustain charges of refusal to bargain-Discrimination : evidence insufficient to sustain charges of-Strike: not a result of unfair labor practices ; no discriminatory refusals to reinstate-Order: cease and desist ; affirmative order not issued in view of Company having already voluntarily posted notices. Mr. Daniel J. Leary, for the Board. Mr. Clayton E. Kline, Mr. M. T. Cosgrove, Mr. Balfour Jeffrey, of Topeka, Kans., for the respondent. Mr. Edward S'cheunemcarun, of counsel to the. Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Topeka Typo- graphical Union, No. 121, herein- called the Union, the National .Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri) issued and duly served its complaint dated December 6, 1938, against Adams Brothers Manifold Printing Company, doing business as Adams .Brothers Salesbook Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair 'labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing thereon, were duly served on the respondent and ' the Union. 17 N. L. R. B., No. 88. 974 ` ADAMS BROTHERS MANIFOLD PRINTING COMPANY 975. The complaint alleged in substance (1) that on May 5, 1938, the respondent discharged Rowland 1 Hunsaker because he had joined and assisted a labor organization; (2) that on and after specified- -dates the respondent refused to bargain collectively with the Union,. the exclusive representative of employees of the respondent in an appropriate unit; (3) that by the foregoing acts and by intimida- tion, threats and interference in the internal affairs of the Union, the respondent has interfered with, restrained, and coerced its employees, in the exercise of rights guaranteed in Section 7 of the Act; (4) that because of these unfair labor practices, employees of the respondent ,went on strike; and (5) that the respondent has discouraged mem- bership in a labor organization by discrimination in regard to the- hire and tenure of employment of the striking employees., On De- cember 14 the respondent filed its answer to the complaint denying- that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held in Topeka, Kansas, from- December 15 to 22, 1938, inclusive, before Theodore U. Bland, the Trial Examiner duly designated by the Board. The Board and the- respondent were represented by counsel, and participated in the hearing. Full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence bearing upon the issues was. afforded all parties. During the course of the hearing the Trial Examiner made a number of rulings on motions and on objections, to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings. are hereby affirmed. On January 9, 1939, and January 11, 1939, the respondent and the Union, respectively, submitted briefs to the Trial: Examiner. On April 8, 1939, the Trial Examiner filed his Intermediate Re- port, copies of which were duly served upon the parties. He found that the respondent had engaged in unfair labor practices affecting- commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act prior to April 27, 1938; but that the respondent. had discontinued these unfair labor practices thereafter. He found- further that the respondent had not engaged in unfair labor prat-- tices within Section 8 (3) and (5), and recommended that these alle- gations of the complaint be dismissed. He also recommended that no order be issued against the respondent with respect to the unfair- labor practices within Section 8 (1). . On April 28, 1939, the Union filed exceptions to the Intermediate Report. On May 22, 1939, the Union filed a further brief in support of its exceptions, and the respondent filed a brief in support of the 1 Incorrectly spelled "Roland" in the complaint 'and amended by motion at the hearing. '976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report. The Board has considered the exceptions and the briefs and, save as the exceptions are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Kansas corporation with its principal office and place of business in Topeka, Kansas. It is engaged in the man- ufacture and sale of business stationery, manifold books, salesbooks, cafe checks, and office supplies and fixtures, and in printing, binding, and publishing. The respondent employs about 120 persons. Its purchases in 1937 were valued at $250,000, and it obtained 90 per cent in value of such materials from States other than Kansas. Its total output in 1937 was valued at $500,000, and it shipped 85 per cent in value. of the manufactured product outside the State of Kansas. II. THE ORGANIZATION INVOLVED Topeka Typographical Union, No. 121, is a labor organization affiliated with the American Federation of Labor. It admits to membership composing-room employees of the respondent. M. THE UNFAIR LABOR PRACTICES A. Interfereiwe, restraint, and coercion The complaint alleges and the answer denies that the respondent interfered with, restrained, and coerced its employees in the exer- cise of rights guaranteed in Section 7 of the Act. On April 10, 1938, employees of the respondent organized the Union. That evening Walter Fitts, foreman of respondent's com- posing room, told Clarence Farmer, one of the employees who had Joined the Union, that the employees might lose their group insur- ance, bonuses, and paid vacations and that the management might close the plant, if they joined the Union. The next morning Fitts assembled the employees working under him and, in substance, repeated the threats he had made to Farmer. On April 16, 1938, the employees in the composing room were sum- moned to the office of John Adams, president 'of the respondent. John Adams, Ed Adams, the brother of John, E. R. Stants, vice pres- ident and general manager, Lester Walters, advertising manager, and Foreman Fitts were present. John Adams told the assembled em- ployees that while it was their privilege to join the Union, he "won- ADAMS BROTHERS MANIFOLD PRINTING COMPANY 977 +clered what benefit would be derived'and why they had joined." Ed Adams stated that their grievances could be handled without the intervention of a union. Stants informed the assembled employees that they-would be "ahead financially" if they did not affiliate with the Union. Either Stants or John Adams asked the employees to decide that evening whether or not they wished to remain with the Union, and offered to leave the keys behind and withdraw in order to permit them to make their decision. The employees refused, how- ,ever, to decide that evening. 'On Monday, April 25, John Adams summoned the members of the Union to his office. - He informed them of the respondent's determi- nation not to accept the closed shop and stated that "there is no law ,in the world that would force the company to sign a closed-shop agreement." At this time the Union had. not presented any demand for a closed shop. Consequently the respondent's denunciation of the closed shop appears to have been a device for discouraging mem- bership in the Union. We cannot view these statements of John Adams on April 25 in any other light, since they were the direct sequel to the respondent's explicit anti-union statements, hereinabove set forth. Our conclusion is further borne out by the events immedi- :ately.following this meeting. Ernest Workman, one of the employ- ees, approached Stants shortly after the meeting, stated that he would "write a resignation and try to get enough of the boys to sign it to break the union majority." Stants said he "thought it was a good idea." Workman prepared a form of resignation from the Union and placed it on John Adams' desk. The respondent prepared several typewritten copies. The following morning, one Barton, an office employee, brought these copies to Workman. Workman then at- tempted to induce members of the Union to resign. The respondent also supplied Workman with printed material, which, among other 'things, stated that an employer was not obligated to sign a closed- 'shop agreement, for use in his campaign to undermine the Union. It is clear and we find that the respondent, through' Workman, sought to encourage defections from the Union. The statements by Foreman Fitts on April 10 and April 11, the statements of the respondent's officials on April 16, the statements of :Stants on April 25, and the attempts of respondent, through Work- man, to procure resignations from the Union were obviously intended to, and did have the effect of interfering with, restraining, and coerc- ing the employees with respect to union membership and activity. Accordingly, we find that between April 10 and April 27, 1938, the respondent, by these statements and other acts, interfered with, re- strained, and coerced its employees in the exercise of rights guaran- teed in Section 7 of the Act to form, join, or assist labor organiza- 978 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD tions, to bargain collectively through representatives of their • own choosing and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. On or about May 13, 1938, the respondent, following a conference with a Field Examiner of the Board, posted in its composing room. a notice which set forth Sections 7 and 8 of the Act and which. stated that, "each employee of this company may be wholly free in the exercise of his own individual judgment as to whether he desires to join any labor organization, and the Adams Brothers Manifold Printing Company does not desire or intend to interfere with any employee in the exercise of that judgment." The- respondent also wrote a letter to the Regional Director informing him of this notice and of its intent to abide by the Act. The notice continued to be- posted for at least 30 days.. B. The alleged refusal to bargain collectively; the strike; the faihure^ to reinstate striking. employees . I. The appropriate unit The complaint alleges and the answer admits that all the employ- ees in the composing room of the respondent constitute a unit appro- priate for the purposes of collective bargaining. Accordingly, we find that all the employees in the composing room: of the respondent constitute a unit appropriate for the purposes of- collective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act.. -II. Representation by the Union of a majority in the appropriate unit The complaint alleges that on April 12, 1938, and on specified dates, thereafter, the respondent refused to bargain collectively with the Union as exclusive representative of the employees in the appropri- ate unit. Between April 12 and July 16, 1938, there were 13 employ- ees in the appropriate unit, and 10 of these employees had designated the Union as their representative for purposes of collective bargaining. Accordingly, we find that between April 12 and July 16, 1938, the Union was the duly designated representative of a majority of tha respondent's employees in a unit appropriate for collective bargain- ing and pursuant to Section 9 (a).of the Act was the exclusive repre- sentative of all employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions _ of employment. ADAMS BROTHERS MANIFOLD PRINTING COMPANY 979 III. The alleged refusal to bargain; the strike; and the failure to reinstate striking employees On April 12, 1938, the Union requested collective bargaining nego- tiations with the respondent. The respondent agreed to meet with the Union and thereafter meetings were held on April 27, May 3, 6, 12, 24, June 14 and 28, .and July 12, 1938. At the first conference, held on April 27, 1938, the Union submit- ted to the respondent a proposed collective agreement covering wages, hours of work, and other conditions of employment. The Union's proposal included a closed-shop provision. The respondent expressed its opposition to the closed shop. Following a general discussion of the Union's offer, the respondent requested time in which to consider it further. The parties agreed to confer again at a later date and the meeting adjourned. At the second meeting, held on May 3, 1938, there was further dis- cussion of the Union's proposed contract. Each clause was considered in detail. The respondent agreed to a number of the Union's de- mands and advanced. its reasons for opposing other demands of the Union. At the close of the meeting, pursuant to the Union's sugges- tion, the respondent' agreed to submit its counterproposal at the next conference. At subsequent conferences, held on May 12, 19, 24, June 2, 14, and 28, the respondent submitted a series of counterproposals, discussed them in detail with the Union, and made substantial concessions in an effort to meet the objections' of the Union. At the conference held on June, 28, a comparison between the terms offered by the Union and the respondent's counterproposals, as modified, disclosed that the parties were substantially in agreement on most issues except the Union's demand for a closed shop. At the conference held on July 12 the Union threatened to call a strike if the respondent did not accept the closed-shop clause and its remaining demands. The respondent offered further concessions as to the other demands but took the position that it could not accede to a closed shop. Accordingly, the members of the Union went on strike. During the afternoon of July 12 the respondent notified the Union that the respondent would fill the positions of the striking employees if they did not return to work by the morning of July 13. The respondent also offered to make further concessions with respect to wages and group insurance but the striking employees determined to continue the strike. Thereafter the respondent hired new employees to take the place of the strikers. On July 27 the striking employees made application for reinstatement. On July. 28' the respondent agreed to place them 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on a preferential list and to reinstate them as vacancies occurred. The respondent adhered to this position in subsequent conferences with the Union. Consideration of the several conferences, the detailed discussions,, the successive counterproposals of the respondent, and its substantial concessions,,leads us to conclude that the respondent negotiated in good faith and that it sought to reach an agreement with the Union with respect to wages, hours of work, and other conditions of employment. We find, accordingly, that the respondent has not refused to bar- gain collectively with the Union as the exclusive representative of its employees in the appropriate unit. Clearly, the purpose of the employees in striking was to induce then respondent to accept the union terms.2 Since the respondent negoti- ated in good faith, its failure to agree with the Union on all the terms did not constitute an unfair labor practice. We conclude,and find that the strike was not caused or prolonged by unfair labor practices of the respondent. The complaint alleged that the respondent discriminatorily refused to reinstate the striking employees. Since the strike was not an unfair labor practice strike, and there is no other evidence showing discrimi- nation against the striking employees, we find that the respondent did not discriminate in regard to their hire and tenure of employment, thereby discouraging membership in a labor organization.$ C. The discharge of H', neaker The complaint alleges and the answer denies that respondent on May 5, 1938, discriminated in regard to the hire and tenure. of em- ployment of Rowland Hunsaker. The Trial Examiner found that the respondent did not so discriminate and the Union takes exception. Hunsaker was first employed by the respondent in May 1937 as an apprentice. He did some composition and distribution work, filed mats, and did general manual labor in the composing room. He furnished J. W. McKim, secretary of the Union, with the names of respondent's employees and joined the Union with the others on April 10. He testified that when he first applied for employment in 1937, he was asked by Foreman Fitts if he belonged to any union; he replied that he did not, and Fitts stated, "That is good." On April 26, 1938, Workman, in a conversation with Ed Adams, charged that Hunsaker was responsible for the organization of the Union. 2 At the final conference before the strike the Union claimed that the lay-off of Rowland Hunsaker was discriminatory and demanded that the respondent reinstate Hunsaker with back pay. We find below that the lay-off was not discriminatory. S Matter of Mackay Radio & Telegraph Co., a corporation and American Radio Tele- graphists' Ass'n., San Francisco. Local No. S. 1 N. L. R. B. 201 enf'd, N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333 (1938), rev'g 92 B. (2d) 761 (C. C. A. 9). ADAMS' BROTHERS MANIFOLD PRINTING COMPANY 981 On May 5, 1938, John Adams called O. O. Bruce, president of the, Union, on the telephone and told him that since business had declined,, it would be necessary to lay off Hunsaker.4 On the same day Fore- man Fitts called Hunsaker into his office, showed him a series of figures, and stated that„`,`beeause.,:of slack,work":the respondent was compelled to release him. The respondent awarded him 1 week's. severance pay and, at his request, gave him a letter-of recommenda- tion. The respondent retained Velma Slawson in its employment at the time of Hunsaker's lay-off. Slawson had less seniority than Hunsa- ker and she was not a member of the Union. On May 6 the respond- ent conferred with the Union with respect to Hunsaker. At this; conference, the respondent justified the retention of Slawson in pref- erence to Hunsaker on the ground that Hunsaker was not familiar with the work Slawson was employed to perform. The respondent offered to give Hunsaker such temporary employment as might be. available from time to time and subsequently employed him for I week commencing June 10, 1938. On July 12, immediately prior to the strike, the respondent offered to reinstate Hunsaker if it would "help to compose the differences" between the respondent and the. Union. The respondent has not reinstated Hunsaker. The respondent contends that it laid off Hunsaker because of a decline in business. The credible evidence shows that the respond- ent's business declined prior to the lay-off and that six other employ- ees had been laid off during the same period. There is no indication in the record that the respondent discriminated against these, sip employees. While Hunsaker's case is not free from doubt, nevertheless, in view of the respondent's bona fide negotiation with the Union, its posted notice set forth in Section I A above, the decline in business, and the legitimate lay-off of other employees along with Hunsaker, we find that the record does not support the allegation in the complaint that respondent discriminated in regard to the hire and tenure of employ- ment of Rowland Hunsaker, thereby discouraging membership in 1, labor organization. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section, III above, occurring in connection with the operations of respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and . + There is a conflict in the evidence as to what Bruce replied . In view of the other- circumstances surrounding the discharge it is not necessary to resolve this conflict. '982 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD tend to lead to labor disputes burdening and obstructing commerce .and the free flow of commerce. V. THE REMEDY We have found that the respondent engaged in interference, re- straint, and coercion between April 10 and April 27, 1939. Pursuant to Section 10 (c) of the Act, we will order that the respondent cease .and desist from such unfair labor practices. By Section 10 (c) of the Act, the Board is authorized to order a respondent found to have engaged in unfair labor practices to take .such affirmative action as will effectuate the policies of the Act. It has been our practice under Section 10 (c) to order respondents -found to have engaged in interference , restraint, and coercion to post notices stating that they will cease and desist from such unfair labor practices and to notify the Regional Director of such posting. As we have found, the respondent has already taken the requisite affirma- tive action. We do not find it necessary, therefore, to order the re- spondent to take further affirmative action at this time. We shall dismiss the complaint as to the alleged unfair labor practices within Section 8 (3) and (5). Upon the basis of the foregoing findings of fact and upon the en- tire record in this case, the Board makes the following': CONCLUSIONS OF LAW 1. Topeka Typographical Union No. 121 is a labor organization 'within the meaning of Section 2 (5) of the Act. 2. The respondent has not refused to bargain collectively with the representatives of its employees, thereby engaging in an unfair labor practice within the meaning of Section 8 (5) of the Act. 3. The respondent has not discriminated in regard to hire or ten- ure of employment, thereby discouraging membership in a labor organization within the meaning of Section 8 (3) of the Act. 4. The respondent by interfering with, restraining, and coercing -its employees in the exercise of rights guaranteed in Section 7 of the Act between April 10 and April 27, 1938, has engaged in unfair labor practices' within the meaning of Section 8 (1) of the Act. ' 5. The aforesaid unfair labor practices within Section 8 (1) 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 hiw, and pursuant to Section 10 (c) of the National Labor Relations ADAMS BROTHERS MANIFOLD PRINTING COMPANY 983 Act, the National Labor Relations Board hereby orders that the respondent, Adams Brothers Manifold Printing Company, and its officers, successors, and assigns cease and desist from in any manner interfering with, restraining, or coercing its employees in the exer- cise 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 concerted activity for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. AND IT IS HEREBY. FURTHER ORDERED that the complaint, in so far as it alleges that the respondent refused to bargain collectively, and discriminated in regard to hire and tenure of employment, be, and it hereby is, dismissed. MR. EDWIN S. SMITH, dissenting in part: I cannot concur in the Decision and Order as to Rowland Hunsaker. The respondent, as the Board findings in Section III A show, was engaged in a flagrant campaign to thwart the Union. The discharge of Hunsaker followed within a few days after the respondent had denounced the closed shop, as part of its anti-union campaign, and during the very period in which the Union was demanding and the respondent refusing a closed shop. True it may be that a decline in business necessitated lay-offs. Nevertheless, the respondent retained a non-union employee with less seniority than Hunsaker, although she could not do Hunsaker's work and Hunsaker, according to his credible testimony, could do her work.. Under these circumstances it is clear that the discharge of Hun- saker, shortly after the respondent was told that "if it hadn't of been for Hunsaker this whole mess would have been averted," was a con- tinuation of the respondent's campaign against the Union. It was after this discharge that the respondent held the conference, with a Field Examiner for the Board, which induced it to post the notice mentioned in the Board decision. That notice, of course, does not remedy the discharge if, as I am convinced, it was discriminatory. 247384-40-vol. 17-63