Easton Publishing Co.

In the Matter of EASTON PUBLISHING Co. and EASTON TYPOGRAPHICAL UNION No. 258, AFFILIATED WITH INTERNATIONAL TYPOGRAPHICAL UNION Cases Nos. C-1356 and R-1400.-Decided January 11, 1940 ewspa-per Publishing Industry-interference, Restraint, and Coercion: speech IN by respondent's president, coinciding with Union's initial attempts at negoti- ating, tending to discourage union membership and activity-Collective Bargain ing: charges of refusal to bargain collectively dismissed-Strike: involved- Investigation of Representatives: controversy concerning representation of em- ployees : respondent's averment in answer to complaint that Union does not now represent employees in claimed unit ; strike current-Unit Appropriate for Collective Bargaining: all employees in composing room of respondent's news- paper, including foremen, assistant foremen, copy cutters, machine tenders, machine operators, compositors, make-ups, and apprentices ; agreement as to- Representatives: proof of choice : signed authorizations as of date of alleged refusal to bargain ; no controversy as to ; eligibility to participate in choice : persons taking places of striking employees during currency of strike not eligible to vote; eligibility determined by pay roll last preceding date of strike; (Leiserson dissenting in part) persons taking place of striking employees where no unfair-labor-practice strike should be permitted to vote as should strikers and any employees hired since strike to fill new positions-Election Ordered Mr. Geoffrey Cuniff and Mr. Samuel G. Zack, for the Board. Mr. Elisha Hanson, of Washington, D. C., and Mr. George F. Coffin, of Easton Pa., for the respondent. Mr. John J. Buckley, of Valley Stream, N. Y., Mr. Alfred J. Whittle, of Tuckahoe, N. Y., and Mr. Frank Fenton, of Washington, D. C., for the Union. Mr.. Joseph Forer, of counsel to the Board. DECISION. ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 3, 1938, International Typographical Union duly filed with the Regional Director for- the Fourth Region (Philadel- phia, Pennsylvania) a charge alleging that Easton Publishing Co., Easton, Pennsylvania, herein called the respondent, had engaged in 19 N. L. R. R. No. 43. 283030-41-v-ol . 19-2u 389 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and was engaging in certain unfair labor practices affecting com- merce, within the meaning. of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and a petition alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of the respondent and requesting an investigation and certification pursuant to Section 9 (c) of the Act. On November 23, 1938, International Typographical Union duly filed an amended charge, and on May 18, 1939, Easton Typographical Union No. 258, affiliated with International Typographical Union, herein called the Union, duly filed a second amended charge. Upon the charge and amended charges, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Fourth Region, issued its complaint dated May 18, 1939, against 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) and (5) and Section 2 (6) and (7) of the Act. On the same day, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an in- vestigation of the petition and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and further ordered that the two cases be consolidated for all pur- poses and that one record of the hearing be made. Concerning the unfair labor practices, the complaint alleged . in substance that on or about September 30, 1938, and thereafter, the respondent refused to bargain collectively with.the Union as the rep- resentative of the majority of its composing-room employees; and that thereby, by discouraging membership in the Union, and by other acts, the respondent interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed.an answer admitting, in substance, the allega- tions of the complaint concerning the nature and scope of its business, and further admitting that the employees engaged in its composing room constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of the Act. It denied the allegations concerning the unfair labor practices and alleged that certain em- ployees who went on strike on March 23, 1939, do not constitute a unit appropriate for the purposes of collective bargaining. As an affirma- tive defense, it alleged that the. proceeding violated the due process clause of the Fifth. Amendment to the Constitution in that it was an attempt to, require the respondent to yield to the "closed-shop" demand of the Union. EASTO-N PUBLISH'ING 'COMPANY - 391 Copies of the complaint and petition and of notices of hearing and continuances thereof were duly served upon the respondent and the Union. Pursuant to the notices, a hearing was held on June 8, 9, and 12, 1939, at Easton, Pennsylvania, before James C. Paradise, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, and the Union by its repre- sentatives; all participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. During the course of the hearing the Trial Examiner made a number of rulings on motions and on objections to the admission of evidence, and in his Intermediate Report disposed of several motions on which he had, at the hearing, reserved decision. The Board has reviewed the rulings of the Trial Examiner and, except as they are inconsistent. with the findings, conclusions, and order set forth below, finds that no prejudicial errors were committed. The rulings are hereby affirmed to such extent. After the close of the hearing the respondent filed a brief for the consideration of the Trial Examiner. On September 12, 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties, wherein he found that the respondent had engaged in and was engaging in unfair labor practices affect- ing commerce, within the meaning of Section 8 -(1) and (5) and Section 2 (6) and (7) of the Act. He recommended that the re- spondent cease and desist from the unfair labor practices so found and take certain affirmative action of remedial nature. Exceptions to the Intermediate Report, a brief, and a request for a hearing for the purposes of oral argument were filed by the respondent. Pursuant to notice duly served upon all the parties, a hearing was held on November 7, 1939, at Washington, D. C., before the Board, for the purpose of oral argument. The respondent and the Union, represented by counsel, participated in the argument. The Board has considered the exceptions and briefs filed by the respondent and finds the exceptions to have merit only in so far as they are consistent with the findings of fact, conclusions of law, and order set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. TIIE BUSINESS OF THE RESPONDENT Easton Publishing Company, a Pennsylvania corporation with ,its plant and office in Easton, Pennsylvania, is engaged in publishing and distributing the Easton Express, a daily newspaper. The raw materials used by the respondent consist of newsprint, ink, and type l 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD metal. In the 12 months preceding the date of the hearing, the respondent used 1,450 tons of newsprint , all of which was purchased outside of. Pennsylvania . During 1938 the respondent used approxi- mately 300,000 pounds of ink , and purchased approximately 5 tons of type metal, approximately half of such metal and ink being ob- tained from places outside of Pennsylvania .. The circulation of the Easton Express is approximately 33,000, of which circulation outside of Pennsylvania accounts for 12,000. The newspaper publishes numerous syndicated cartoon strips and other syndicated matter fur- nished by various services. The respondent is a. member of the Asso- ciated Press, both for receiving news and for making available to that service any news stories which may be gathered by the respond- ent's reporters and appear in its columns. The respondent also receives the services of the International News Service and the United Press. For the respondent's past fiscal year, between 7 and 10 per cent of the advertisements appearing in its newspaper were classified as national advertising , consisting of advertising printed generally in a number of newspapers . The Easton . Express carries advertising, not classified as national , of concerns located in Phil- lipsburg, Bloomsbury, and Washington, all in New Jersey. The re- spondent has a representative for soliciting advertising with offices in New York, Illinois, Massachusetts, Michigan, and Georgia. The respondent employs approximately 150 persons . For the purposes of this proceeding, the respondent does not object to the jurisdiction of the Board under the Act. II. THE ORGANIZATION INVOLVED Easton Typographical Union No. 258 , affiliated with International Typographical Union, and through it with the American Federation of Labor, is a labor organization admitting to membership competent printers and apprentices. III. THE UNFAIR LABOR PRACTICES A. Interference , restraint, and coercion On September 29, 1938, Alfred J. Whittle, a representative of International Typographical Union, came to Easton , in accordance with a request made by the Union of the president of its national organization. The next day 28 out of 40 men then employed in the respondent's composing room signed a statement authorizing the Union to represent ,them for the , purposes of.collective bargaining. On.OctoberA, 1938, Whittle saw James L. Stackhouse , secretary- treasurer of the respndent and business manager of the Easton Ex- , BAS'TON' PUBLISHING. 'COMPANY 393 press, and Edward C. Snyder, the respondent's mechanical superin- tendent. Whittle asked for a conference and showed his proof of majority representation . Stackhouse told him he would make ar- rangements for a meeting with Chester Snyder , the respondent's president. Thereafter , Stackhouse informed Chester Snyder of the prelimi- nary meeting with Whittle. On October 7, 1938, the respondent caused the composing-room employees to receive cards in their pay envelopes requesting them to attend a meeting to be held that after- noon in the respondent's board room. Chester Snyder spoke at the meeting. He discussed economics , stated that he understood that a number of men were joining the Union , and asked who the ring- leaders were. He said that he did not oppose the Union , but that the boys were mistaken if they felt they would benefit; there was no more money . Rather than run. the plant at a loss, he added, he would lock up and throw the key in the Delaware River ; he would not starve. He also inquired why grievances were not brought up through a "company union" which had existed in the plant. It is apparent that Chester Snyder's address was an attempt to discourage union membership and activity, timed to coincide with the Union's initial efforts at negotiating with the respondent. We find therefore that by such action on the part of Chester Snyder, its president, the respondent interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged refusal to bargain collectively 1. The appropriate unit The Union and the respondent agree that all the employees, ap- proximately 40 in number, regularly employed in the respondent's composing room, including foremen, assistant foremen, copy cutters, machine tenders, machine operators, compositors, make-ups, and apprentices, constitute a unit appropriate for the purposes of col- lective bargaining. No reason appears for departing from the stipu- lation of the parties. We find that the persons employed in the respondent's composing room, including foremen, assistant fore- men, copy cutters, machine tenders, machine operators, compositors, make-ups, and apprentices, constitute a unit appropriate for the pur- poses of collective bargaining and that said unit will insure to employees of the respondent the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Designation of the Union by a majority of the employees in the appropriate unit - The respondent concedes that from October 1, 1938, to March 23, 1939, the Union was the representative designated by the majority of the employees in the unit. We have already referred to the fact that on September 30, 1938, 28 of 40 such employees signed a state- ment authorizing the Union to represent them for the purposes of collective bargaining. We find that from October 1, 1938, to March 23, 1939, the Union was the exclusive representative of all the em- ployees in the appropriate unit for the purposes of collective bar- gaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The alleged refusal. to bargain The events occurring through October 7, 1938, have already been described. On October 11 Whittle met, by prearrangement, Chester Snyder, Edward Snyder, and Stackhouse. Whittle gave Chester Snyder a draft of a proposed contract and said that Snyder might have ample time to study it. On October 18, 1938, the same persons met once more, with the addition of Carl C.. Webb, a representative of the Pennsylvania Newspapers Publishers' Association. Chester Snyder indicated that he was much disturbed by the proposed wage rate, said that he was not prepared to discuss the contract draft otherwise, and passed it back to Whittle. He also stated that he would not discuss any proposal except on an open-shop basis. Whittle informed him that the wage terms were negotiable and induced him to take back the contract draft for further consideration. A conference on October 21, 1938, held at the respondent's board room, was attended by both Snyders, Stackhouse, Webb, and Whittle. Webb suggested that some of the men of the composing room be brought in. Whittle consented and brought in three union members, while Edward Snyder brought in three non-union employees. Chester Snyder said that he would not accept a closed shop and asked Whittle to propose an open shop to the Union. Whittle suggested the pos- sibility of a preferential shop and explained its operation, but Snyder responded unfavorably. Whittle requested discussion of the contract draft, but none was held. On November 1, 1938, Whittle wrote Chester Snyder that the Union had unanimously rejected Snyder's open-shop proposal. On November 16 Whittle and the representatives of the manage- ment again met, there being also present Hummel, a mediator of labor disputes employed by the Commonwealth of Pennsylvania, and Fred- ,ASTON, PUBLISHING CO MPANY , 395 erick Sanville, a Field Examiner for, the Board. Chester Snyder again took the position that he would not discuss any contract unless it provided for an open shop. No other matters were considered, despite Whittle's request for discussion on the contract proposals. On November 23, 1938, Whittle met with the management, and the proposed contract was considered by paragraphs. At the very outset, Chester Snyder objected to contracting with the Union as such, ap- parently because of a belief that such a contract necessarily involved a closed shop. By agreement, 'accordingly, the paragraphs contain- ing the word "union" were set aside for later consideration. A num- ber of the proposed provisions were accepted as they stood.; others were amended at the suggestion of the management. Agreement was reached on hours of work, certain provisions regarding apprentices, overtime rate, holidays, lunch periods, seniority, authority of foremen to hire and discharge,' sanitary regulations, a clause preventing dis- charge for incompetency of employees transferred from one type of .work to another, and other provisions. No agreement was reached, however, on wages or the closed-shop issue. On December 14, 1938, the conferees, with the addition of John J. Buckley, another International Typographical Union representative, discussed wages. Chester Snyder said the respondent was unable to grant increases. Whittle offered statistics of other newspapers, but Snyder denied their applicability to the Easton Express. Whittle asked that the respondent's prevailing wage of 93 cents per hour plus the bonus pay usually distributed by the respondent be trans- lated into a new base pay of $1 per hour. Snyder rejected the pro- posal. He also reiterated his objection to a closed shop. On January 17, 1939, Whittle met with both Snyders, Stackhouse, Webb, Sanville, and Bennet F. Schauffler, the Board's Regional Director for the Fourth Region. Whittle submitted an estimate of the respondent's revenue. Chester Snyder and Stackhouse charac- terized the estimate as being $600,000 too high. Whittle asked Snyder for his views on an agreement to continue existing wages. Snyder said that he did not like the idea of signing an agreement "which puts us in a position that we can afford what we are paying." After fur- ther discussion of the respondent's revenues, Snyder agreed that Whittle might go over the respondent's books with Stackhouse. Whittle and Schauffler asked that a counterproposal be made by the respondent. A transcript of the meeting, received in evidence, does not show that the respondent agreed to the request. However, Whit- tle testified, without contradiction, that it did in fact agree. Since the transcript fails to show any refusal of the suggestion, it appears that an agreement by the respondent to make a counterproposal was at least tacitly understood. During the course of this meeting, likewise, Snyder withdrew his objection to accepting a contract with the word 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "union" appearing, but repeated that he could not agree to a closed shop. Despite the respondent's consent to permit Whittle to inspect its books, neither he nor any other representative of the Union has ever taken advantage of the permission. On January 20, 1939, Whittle wrote to Stackhouse in order to out- line his views regarding the proposed counterproposal. He set forth advantages which would accrue to the respondent from entering into a contract with the Union, and further stated : "I realize the attitude regarding the closed shop held by the management and it might sur- prise you to know that many publishers do not feel secure unless a contract is signed." He concluded by referring to his anticipation of receiving the counterproposal at an early date. Stackhouse re- plied in a letter of January 31 that "we have no further counter- proposal, other than that.brought out in our discussions from time to time to offer." Whittle then wrote Stackhouse on February 4, ex- pressing disappointment at the alleged change of position. On or about February 20, 1939, Chester Snyder went to a hospital for surgical treatment. He and Stackhouse had earlier agreed that further conferences with the Union should be held only if the Union had some new proposals to make. On February 28 Whittle wrote to Stackhouse explaining that he had been ill and, requesting an early meeting. Stackhouse answered on March 4 that Chester Snyder had just returned home from the hospital and that it was doubtful if he would be able to attend to business for several weeks. He added : "Without talking with Mr. Snyder I venture the guess that he feels that all angles of the situation have been sufficiently discussed, and therefore before arranging for a meeting, he would like to know whether you have any new proposals to make, and if so, what they are." On March 21, 1939, a union meeting was held at which Whittle reported on the negotiations and Stackhouse's last letter was read. The Union voted to strike on the basis that the respondent had re- fused to bargain with it. On March 23, 35 out of 40 persons then employed in the respondent's composing room went on strike. By the time of the hearing five strikers had returned-to work. The re- spondent continued publication and employed men to take the place of the strikers. It is apparent that the respondent bargained with the Union through January 17, 1939. Snyder's earlier refusal to contract with the Union as such had not caused a disruption of negotiations, and was withdrawn on January 17. As for subsequent events, Stack- house's letter of March 4, 1939, was not a refusal on the part of the respondent to meet with the Union's representative. Whittle knew that Chester Snyder was the sole person empowered to contract for' EAS'TON' PUBLISHING COMPANY 397 .the respondent with the Union, and was aware, therefore, that the reference to Chester Snyder's inability to attend to business was an explanation that a meeting could not be arranged for several weeks. While the respondent could not postpone bargaining indefinitely on account of the disability of one of its officers, we do not view its sug- gestion that further negotiations be withheld pending Snyder's re- covery as a refusal to bargain. Nor, under the circumstances, can. the suggestion by Stackhouse that Snyder would like to know of any new union proposals before arranging a meeting be construed as such a refusal. The Trial Examiner in his Intermediate Report ascribed to the respondent a refusal to bargain solely on the basis of the respond- ent's failure to make a counterproposal. It is true, of course, that an employer's refusal to offer counterproposals may 'be persuasive of a lack of good faith in bargaining.' In the present instance, however, the respondent's failure to do so is inconclusive. Although the con- troversy on wages called into question the amount of the respondent's- revenues, the Union made no move to inspect the respondent's books in accordance with the respondent's consent. Nor does it appear that the subject (natter of the requested counterproposal had been clearly defined. As the meeting of January 17, 1939, was devoted to a discus- sion of wages, it was reasonably inferable that the subject matter of the counterproposal then requested was to be wages. However, Whit- tle's letter of January 20, 1939, which purported to outline his views regarding the anticipated counterproposal, made no reference to wages but instead discussed the advantages of a union contract and. referred to a closed shop. The respondent might therefore justifiably have concluded from Whittle's letter that the requested counterpro- posal was expected to include a proposal on the closed-shop issue, as to which the respondent had already stated its position. Finally, the actual disruption of negotiations was not occasioned by Stack- house's letter refusing the counterproposal. It occurred only after the Union received his subsequent letter indicating that a further conference would have to await Chester Snyder's recovery and tenta- tively suggesting that the Union make new proposals. The entire record does not support a finding that the respondent has refused to bargain collectively with the Union. The allegation of the complaint that it has done so will be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III A above, occurring in connection with the operations of the respondent de- 1 See Matter of Globe Cotton Mills and Tewtile Workers Organizing Committee, 6 N. L, R. B. 461 , enf'd as mod ., Globe Cotton Mills v . N. L. It. B., 103 F. (2d) 91 (C. C. A. 5). 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribed in Section I above, have a close, intimate, and substantial. relation to trade, traffic, and commerce among the several States, alid tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY . Having found that the respondent has engaged in and is engaging in unfair labor practices, we will order it to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act. VI. THE QUESTION CONCERNING REPRESENTATION In its answer to the complaint the respondent denied that the em- ployees who went on strike constitute a unit appropriate for the purposes of collective bargaining and further stated that it does not now regard the Union as the representative of its composing-room employees. We find that a question has arisen concerning the representation of the respondent's composing-room employees. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION ON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of conunerce. VIII. THE DETERMINATION OF REPRESENTATIVES Although we have found that from October 1, 1938, to March 23, 1939, the Union was the designated bargaining representative of the respondent's employees within the appropriate unit, the lapse of time and changes in circumstances since the designation render an election by secret ballot necessary to resolve the question concerning repre- sentation which has arisen. We have elsewhere held that persons taking jobs vacated by strik- ing employees are not eligible, during the currency of the labor dispute in connection with which the work,of the strikers ceased, to participate in a selection of bargaining representatives. In the Sartorius 2 case we pointed out that "by holding that individuals, 2 Matter of A. Sartorius h Co., Inc. and United Mine Workers of America, District 50, Local 12090, 10 N. L. R. B. 493. See also Matter of Johnso -Carper Furniture Co., Inc. and Local 283, United Furniture Workers of America, 14 N. L. R. B. 1030. E.kSTON PGBLISH..ING OOI[PA\Y 399 who took jobs vacated by striking employees, also were eligible to participate in the selection of the bargaining representative of the employees in the appropriate unit, there resulted a situation where two individuals, with interests diametrically opposed, were, by virtue of one and the same job, entitled to participate in the selection of the bargaining representative. If those who have, during the currency of the strike, replaced the strikers are permitted to vote, and the strikers are also permitted to vote, possibly twice as many as can be employed may participate in the election. This was not the intent of Congress. Yet the intent that strikers should remain employees for the purposes of the Act is clear." We also stated : "The hold of individuals who, during the currency of a strike, occupy positions vacated by striking employees is notably tenuous. To accord such individuals, while the strike is still current, a voice in the selection of the bargaining representative of employees in the appropriate unit would be contrary to the purposes of the Act and the ends con- templated by it, since it might effectively foreclose the possibility of the settlement of the labor dispute, whether by the return of the striking employees to their jobs and the displacement of the indi- viduals occupying those jobs during the strike, or by some other settlement agreement, a possibility which the Act contemplates should not be foreclosed during the currency of the strike." In the instant case the strike which began among the respondent's composing-room employees on March 23, 1939, was still current at the time of the hearing. For the reasons expressed, and in the ab- scence of any showing that since March 23, 1939, there have been created positions in the composing room other than those which were occupied on that date, we shall direct that the composing-room em- ployees on the pay roll for the period last preceding March 23, 1939, including those who did not work during such pay-roll period because they were ill or on vacation and those who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to vote in the election. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAw 1. Easton Typographical Union No. 258, affiliated with Interna- tional Typographical Union, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. The. respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. A question affecting commerce has arisen concerning the repre- sentation of employees of the respondent, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 6. The employees of the respondent employed in its composing room, including foremen, assistant foremen, copy cutters, machine tenders, machine operators, compositors, make-ups, and apprentices, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning.of Section 9 (b) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Easton Publishing Co., Easton, Pennsylvania, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of the 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 activities for the purposes of collective bargaining or other mutual aid or protection. 2. Take .the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post immediately in conspicuous places in its plant, and main- tain for a period of at least sixty (60) consecutive days, notices to its employees, stating that the respondent will cease and desist as provided in Section 1 of this Order; (b) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of E S'TON(- PUBLISHING COMPANY 401 National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Easton Publishing Co., Easton, Pennsylvania, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Fourth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the employees of Easton Publishing Co. who were employed in the composing room of the Company during the pay-roll period last preceding March 23, 1939, including foremen, assistant foremen, copy cutters, machine tenders, machine operators, compositors, make-ups, apprentices, employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been tem- porarily laid off, but excluding any employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Easton Typographical Union No. 258, affiliated with International Typographical Union, for the purposes of collective bargaining. Mn. WILLIAM M. LFISERSON, dissenting in part: I cannot agree with that-part of the decision which restricts eligi- bility for voting in the election to those employees on the pay roll for the period preceding March 23, 1939. The election that is ordered -will be held in January 1940, and the effect of the selected eligibility date is to deny voting rights to all those employees who were hired during the 10-month period following March 23, 1939. I do not think that the National Labor Relations Act authorizes the Board to deny to any bona fide employees the right to vote in -in election for the purpose of choosing a collective bargaining agent that is to represent the unit of which they are a part. The majority opinion attempts to justify the exclusion of employees hired since March 23 on the ground that the Act specifically defines strikers as employees, and the strikers must be permitted to vote. I agree that the striking employees must be given an opportunity to vote in the election, but this does not seem to me to justify the Board in excluding other bona fide employees from voting. The Board finds that the strike in the present case was not caused by unfair labor practices. If it were an unfair labor practice strike, the Board would order reinstatement of the striking employees and removal of strikebreakers to make places for them. In that case the 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikebreakers would obviously not be bona fide employees and would not have the right to select representatives for collective bargaining. But in the present case the Board does not find any employees hired in violation of the Act and does not order displacement of any such employees. The majority opinion merely assumes, without proof, that every employee hired since March 23 was employed to take the place of a striking employee, and because those on strike a. re to be permitted to vote, therefore the others should not vote. But some employees hired during the last 10 months may not have been employed to replace strikers at all . Such - employees unques- tionably cannot be denied the right to,vote, , and I am of the opinion that the Act also constrains the Board to include in the list of eligible voters every other bona fide employee not hired in violation of the provisions of the Act.