W. H. Kistler Stationery Co.

In the Matter of THE W. H. KISTLER STATIONERY COMPANY and DENVER PRINTING PRESSMEN AND ASSISTANTS UNION No. 40 Case No. C-1553.-Decided June 04, 1940 Commercial Printing Industry-Interference, Restraint, and Coercion: by refusal to bargain-Unit Appropriate for Collective Bargaining : all printing pressmen and assistants in the off-set, job, and cylinder departments, including foremen and employees classed as feeders by the employer ; agreement as to- Representatives : proof of choice : prior election . by Board-Collective Bargain- ing: refusal to recognize union prior to court . test on jurisdiction of Board ; affirmative order to bargain with the union. Mr. Marion A. Prowell, for the Board. Mr. Irving Hale, Jr., of Denver, Colo., for the respondent. Mr. S. W. Johnson, of Denver, Colo., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Denver Printing Pressmen and Assistants Union No. 40, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-second Region (Denver, Colo- rado), issued its complaint, dated April 1, 1940, against The W. H. Kistler Stationery Company, Denver, Colorado, 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) 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 and accompanying notices of hearing were duly served upon the respondent and the Union. Concerning the unfair labor practices, the complaint alleged, in substance, that on or about January 23, February 10 and 21, 1940, the respondent refused to bargain collectively with the Union as the exclusive representative of the respondent's employees in an appro- 24 N. L. R. B., No. 99. 960 THE W. H. KISTLER STATIONERY COMPANY 961 priate bargaining unit,. although it had been certified by,the Board as the exclusive representative of the respondent's employees in an appropriate bargaining unit, and that by these and other acts the respondent interfered with, restrained, and. coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 11, 1940, the respondent filed an answer admitting that it had refused to bargain with the Union, but alleging that it was not sub- ject to the jurisdiction of the Board. Pursuant to notice, a hearing was held on April 15, 1940, at Denver, Colorado, before Henry J. Kent, the Trial Examiner duly designated by the. Board. The Board and the respondent were represented by counsel, the Union by its representative, and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties.- By stipulation of. the parties the record in a previous representation case involving the respondent, in which the Board issued a Decision and Direction of Election,' dated December 29, 1939, and a Certification of Representatives,2 dated February 2, 1940, was incorporated into and made a part of the record in the instant case by reference., At the close of the Board's case, counsel for the Board moved to amend the pleadings to conform to the proof. The motion was granted. At the close of the hearing', counsel for the respondent moved to dismiss the complaint on the ground that the evidence failed to prove that the activities of the respondent affect commerce within the meaning of the Act. The Trial Examiner did not rule on this motion. It is hereby denied. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board, by an order dated April 24, 1940, ordered that no Inter,, mediate Report be issued by the Trial Examiner in this case and, acting pursuant to Article II, Section 37 (c), of National Labor Rela- tions Board Rules and Regulations-Series 2 as amended, ordered that Proposed Findings of -Fact,, Proposed Conclusions of Law, and Proposed Order be issued, and further ordered that the parties have the right within 20 days from the date of the'said Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, to file exceptions and to request oral argument before the Board, and that the parties have the right within 30 days from the date of the said Proposed Findings of Fact, Proposed Conclusions of Law, and Pro- posed Order- to file a brief with the Board. 118 N. L. R. B. 948. 2 20 N. L. R. B. 97. 962 'DECISIONS OF -NATIONAL LABOR RELATIONS'BOARD On May 15, 1940, the Board, acting pursuant to Article II, Section- 37 (c), of National Labor Relations Board Rules and Regulations- Series 2, as amended, issued Proposed Findings. of Fact, Proposed Conclusions of Law, and Proposed Order, copies of which were duly served upon the parties. Exceptions thereto were filed by the respondent on June 3, 1940. The Board has considered the excep- tions of the respondent and 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 Colorado corporation having its principal office and place of business in Denver, Colorado. It is engaged in the .printing, furniture, mimeograph, and stationery business. The re- spondent's gross sales total approximately $1,000,000 annually, 33 per cent of which is derived from its printing department.3. The respondent ships approximately 11.7 per cent of its printing produc- tion directly outside the State of Colorado, and delivers to com- panies directly engaged in interstate commerce over 25 per cent of the total production of the printing department.' Some of the items delivered to these companies are in turn sent out of the State by the companies to their branch offices. The respondent spends approxi- mately $100,000 annually for raw materials used in the printing department, 90 per cent of which are secured. from. firms within the State of Colorado, and.10 per cent from outside Colorado. Approximately 18 per cent of the respondent's gross income is derived from the -sale of office furniture and equipment. All the office furniture and equipment sold by the respondent is purchased by it from sources outside the State of Colorado. The office furniture sold to buyers outside of Colorado amounts to approximately .1 per cent of the respondent's total business. - Approximately 9 per cent of the respondent's total income is de- rived from the sales in 'the mimeograph department. All the merchandise used by the respondent in the operation of this depart- ment is purchased outside the State of Colorado, and no sales are made from this department into other States. The respondent derives approximately' 40 per cent of its gross income from the sales of its stationery department. Approximately s The Union represents only employees in this department. 4 Some of these companies are Mountain States Telephone & Telegraph Company, Western Electric Company, Chicago , Burlington & Quincy Railroad, Union Pacific Railroad ; Ameri- can Smelting & Refining Co ., Armour & Company , International Harvester Company, Swift & Company, and Texas Oil Co. THE W. H. KISTLER STATIONERY COMPANY' 963 95 per cent. of the purchases by the respondent for this department originate outside the State of Colorado. Approximately 1.7 per cent of the respondent's total income is derived from sales made -by this department to retailers located outside Colorado . The stationery department employs two salesmen who spend approximately 25 per cent of their time in States other than Colorado. Approximately 5.8 per cent of the respondent's total income from all its departments is derived from sales to points outside the State. Approximately 10 per cent of the raw materials used in the printing department, 100 per cent of the materials used in the furniture de- partment, 100 per cent of the merchandise used in- the mimeograph department, and approximately 95 per cent of the materials used in the stationery department are shipped to the respondent from points outside the State- of Colorado. The respondent employs approxi- mately 165 employees, 22 of whom are printing pressmen and assistants. II. THE ORGANIZATION INVOLVED Denver Printing Pressmen and Assistants Union No. 40 is a labor organization affiliated with the American Federation of Labor. It admits to -membership all printing pressmen and assistants in the respondent's printing department. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate unit In our Decision and Direction of Election in the representation case we found that all printing pressmen and assistants in the offset, job, and 'cylinder' departments of the respondent, including foremen and employees classed as feeders by the respondent , constituted a unit appropriate for the purposes of collective bargaining. The respondent stipulated in the instant -case that such a unit is appro- priate for the purposes of collective bargaining. We find that all printing pressmen and assistants in the offset, job, and cylinder departments of the respondent, including foremen and employees classed as feeders by the respondent , constituted and constitute a unit appropriate for the purposes of collective bargain- ing, and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bar- gaining and otherwise effectuates the policies of the Act. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Representation by the Union of a majority in the appropriate unit In our Decision and Direction of Election we directed that an election be held among the employees of the respondent in the appro- priate unit. An election was held and the Union received a majority. On the basis of the results of the election, the Board, on February 2, 1940,, certified the Union as the exclusive representative of the, employees in the appropriate unit. We find that on February 2, 1940, and at all times thereafter, the. Union was the duly designated representative of a majority of the employees in the appropriate unit and, by virtue of Section 9 (a) of the Act; was on that date, and at all times thereafter, the exclusive representative of all employees in such unit for the purposes of. collective bargaining with the respondent in respect to rates of. pay,, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain The-Union and the respondent held conferences on January 23 and February 10 and 21, 1940, for the purposes of collective. bargaining. During each of the conferences the Union requested that the respond- ent bargain with it as the exclusive representative of all the em- ployees in the appropriate unit. The respondent took the position at these conferences that it is not engaged in a business which substan- tially affects interstate commerce within the meaning of the Act, and for that reason it would not bargain with the Union. The respond- ent further stated that it desired a ruling by a Federal court on the question of jurisdiction and that it would not bargain with the Union until such time as the question of jurisdiction had been settled in that manner. In view. of our finding in Section IV below, we find that the reason advanced by the respondent for its refusal to bargain with the Union is without merit. We find that on and after February 10, 1940, the respondent re-. fused to bargain collectively with the Union as the exclusive repre- sentative of its employees in the appropriate unit in respect to wages, rates of pay, hours of employment, and other conditions of employ- ment, and has thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by , Section 7 of the Act. 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 the respond- THE W. H. KISTLER STATIONERY COMPANY 965 ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, _and commerce among the several States and tend to lead to labor disputes burdening and obstructing' com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom; and, in order to effectuate the purposes and policies of the Act, we shall, in aid of our cease and desist order, order the respondent, upon request, to bargain collectively with the Union as the exclusive representative of all the employees in the appropriate unit. 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. Denver Printing Pressmen and Assistants Union No. 40 is a labor organization, within the meaning of Section 2 (5)' of the Act. 2. All printing pressmen and assistants in the offset, job, and cylin- der departments, including foremen and employees classed as feeders by the respondent, constituted and constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Denver Printing Pressmen and Assistants Union No. 40 is, and at all times since February 2, 1940, has been the exclusive representa- tive of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act.. 4. By refusing and continuing to refuse to bargain collectively with Den ver Printing Pressmen and Assistants Union No. 40 as the exclu- sive representative of all employees in such unit, the respondent has engaged in and is =engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By .interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the At, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. . 6. 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. 283035-42-vol. 24-62 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the National Labor Relations Board hereby orders that the respond- ent, The W. H. Kistler Stationery Company, Denver, Colorado, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Denver Printing Press- men and Assistants Union No. 40 as the exclusive representative of all its printing pressmen and assistants in the offset, job, and cylinder departments, including foremen and employees classed as feeders by the respondent; (b) In any other inanner interfering with, restraining, or coercing its employees in the exercise of their rights 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 purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a), Upon request, bargain collectively with Denver Printing Press- men and Assistants Union No. 40 as the exclusive representative of all its printing pressmen and assistants in the offset, job,. and cylinder' departments, including foremen and employees classed as feeders by the respondent,' in respect to rates of pay, wages, hours of employ- ment, and other conditions of employment; (b) Post immediately in conspicuous places at its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Twenty-second Region in writing within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith.