Western Printing Co.

In the Matter of SAM M. JACKSON, CECIL J. LEwIs, AND HARRY C. HOLDSWORTH, DOING BUSINESS AS WESTERN PRINTING COMPANY, A CO-PARTNERSHIP and INTERNATIONAL BROTHERHOOD OF BOOKBINDERS, LOCAL No. 63, A. F. L., AND INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS' UNION OF NORTH AMERICA, LOCAL No. 78, A. F. L. Case No. C-1836.Decided August 13, 1941 Jurisdiction : commercial and job-printing industry. Unfair Labor Practices Interference, Restraint , and Coercion: charges of, dismissed. Discrimination: employees found not to have been locked out but to have gone out on strike , that strike was neither caused nor prolonged by any unfair labor practices , and that employer did not refuse to reinstate any of the striking employees because of their union membership and activity. Collective Bargaining : charges of, dismissed. Posting of notice raising wages and reducing hours of employees during negotiations with unions held not an unfair labor practice where, among other circumstances, immediately after the posting the employer continued to discuss and consider the proposals of the unions Practice and Procedure : complaint dismissed. Mr. David Sokol, for the Board. Mr. Harold Richardson, of Whittier, Calif., for the respondents. Mr. Charles S. Hall and Mr. Arthur Garrett, of Los Angeles, Calif., and Mr. Charles V. Ernest, of Washington, D. C., for the Pressmen. -Mr. Albert E. Simonds and Mr. Arthur Garrett, of Los Angeles, Calif., and Mr. James A. Glenn, of Washington, D. C., for the Bookbinders. Mr. Robert F. Koretz, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed jointly by Inter- national Brotherhood of Bookbinders, Local No. 63, A. F. L., herein called the Bookbinders, and International Printing Pressmen and Assistants' Union of North America, Local No. 78, A. F. L., herein called the Pressmen,' the National Labor Relations Board, herein I Throughout this Decision the Bookbinders and the Pressmen are referred to jointly as the Unions. 34 N. L. R. B., No. 30. 194 SAM M. JACKSON ET AL. 195 called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California) issued its complaint, dated September 13, 1940, against Sam M. Jackson, Cecil J. Lewis, and Harry C. Holds- worth, doing business as Western Printing Company, a co-partner- ship, herein called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Sec- tion 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, were duly served upon the respondents, the Bookbinders, and the Pressmen. Concerning the unfair labor practices, the complaint alleged in substance that the respondents: (1) prior to and since November 1, 1939, interfered with the self-organization and the freedom of choice of representatives of their employees by making known the respond- ents' hostility to the Unions and their opposition to membership in or assistance thereof, by "making statements calculated and intended to interfere with the freedom of choice of representatives for collec- tive bargaining," by questioning their employees regarding their union affiliations, by advising their employees that the respondents would close their Whittier plant rather than recognize the Unions, by statements that their employees would derive no benefit from join- ing the Unions, by promises of rewards to employees refraining from joining or assisting the Unions, and by threatening employees with loss of employment for joining the Unions; (2) about November 14, 1939, and at all times thereafter, refused to bargain in good faith with the Unions, the duly designated representatives of the respond- ents' employees in appropriate units, refused to meet, deal, and ne- gotiate with the representatives of the Unions, refused to agree to embody in a contract any understanding reached, and refused to recognize the Unions as the exclusive bargaining agents of the re- spondents' employees within the appropriate units; (3) about No- vember 27, 1939, refused to reinstate and still refuse to reinstate and thereby locked out 16 named employees 2 who that day "did refrain from working" because of the respondents' unfair labor practices, after said employees "offered to return to work pending an adjustment of the unfair labor practices" because the said employees joined and assisted the Unions; (4) about January 10, 1940, again refused to reinstate 15 named employees 3 who on or about that date made ap- S These 16 employees are : William G. Harris, Jack K. Smith, Richard Hansen , Martin Ltice, Glen Armstrong, Claude Thomas Weadon, Vincent Youngquist, Ethel Kelly, Millie Furry, Helen Weadon Easterling, Clara Salm, Mary Jones Pfirrman, Grace La Verne Baker, Neva Palmer, James C. Jennings, and James R Jennings. S The 15 employees who allegedly applied in writing for reinstatement on or about January 10 constitute the same employees who allegedly offered to return to work on November 27 as set forth in footnote 2, above, except that James C. Jennings, the father of James R Jennings, did not apply for reinstatement on January 10. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plications in writing to the respondents for reinstatement because the said employees joined and assisted the Unions; and (5) by the fore- going and other acts, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. On -September 23, 1940, the respondents filed their answer to the complaint in which they denied, in substance, that they were engaged in interstate commerce or were subject to the jurisdiction of the Board, and that they had engaged in any unfair labor practices. The respondents' answer alleged further, in substance, that the re- spondents met and bargained in good faith on numerous occasions with representatives of the Unions, that the Unions terminated bar- gaining relationships by calling their employees out on strike because the respondents would not accept the closed-shop provisions in the contracts submitted by the Unions, and that the respondents did not lock out or refuse to reinstate the striking employees because of their membership in and assistance to the Unions but on the contrary re- peatedly endeavored to get the striking employees to return to their jobs. Pursuant to notice, a hearing was held in Los Angeles, California, from October 3 to October 18, 1940, inclusive, before Earl S. Bell- man, the Trial Examiner duly designated by the Chief Trial Ex- aminer. The Board and the respondents were represented by coun- sel, and the Unions by union officials. All parties participated in the hearing and were afforded full opportunity to be heard, to call, ex- amine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing, counsel for the re- spondents entered a limited and special appearance for the purpose of contesting the Board's jurisdiction and, in effect, entered a general objection to the proceedings on the ground that the respondents were not engaged in commerce, within the meaning of the Act. After the taking of testimony concerning the business activities of the respond- ents, counsel for the respondents moved to dismiss the complaint for lack of jurisdiction. The motion was denied by the Trial Examiner. Thereafter, the respondents, by their counsel, participated fully in the hearing. At the close of the Board's case, the Trial Examiner granted, without objection, a motion by counsel for the Board to dismiss the allegations of the complaint as to James R. Jennings. The Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. A brief by the respondents ' was received and considered by the Trial Examiner. On March 5, 1941, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all SAM M. JACKSON ET AL. 197 parties, in which he recommended that the complaint be dismissed in its entirety. _ Thereafter, the Unions filed exceptions to the Intermediate Report, submitted a brief in support of their exceptions, and requested oral argument before the Board. Pursuant to notice, a hearing for the purpose of presenting oral argument was held before the Board at Washington, D. C., on May 8, 1941. The respondents, the Bookbind- ers, and the Pressmen were represented by counsel or by a represent- ative and participated in the argument. The Board has considered the exceptions and brief and, in so far as the exceptions are inconsistent with the findings of fact, conclu- sions of law, and order, below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS The respondents, Sam M. Jackson, Cecil J. Lewis, and Harry C. Holdsworth are and have been since September 1, 1936, a copartnership doing business under the firm name and style of Western Printing Company. The respondents have their office and plant at Whittier, California, at which place they engage in a commercial and job-print- ing business. The principal raw materials used by the respondents are paper and ink. The value of the materials purchased by the re- spondents was $74,644.23 for the period from January 1, 1939, to Sep- tember 1, 1940. These materials were purchased from suppliers in Los Angeles County, California, but at least 50 per cent of these ma- terials -were obtained by the suppliers from outside the State of California. The value of the finished products, consisting of magazines, books, catalogs, pamphlets, and miscellaneous printed matter, sold by the respondents between January 1, 1939, and September 1, 1940, was $318,505.13. During that period the value of goods sold directly to persons in States other than the State of California was $20,530.16.4 Although the direct sales to persons outside the State of California, consisting of printed legal briefs delivered by mail, constitute only about 6 per cent of the respondents' total sales, the record shows that a substantial portion of the books, magazines, catalogs, and advertis- ing matter sold by the respondents to customers within the State of California is thereafter shipped outside the State of California by A The record also shows that for the 12-month period from September 1, 1939, to September 1, 1940, the respondents' total sales amounted to $192,48900, of s hich sales those made directly to customers outside the State of California totaled $12 ,724.19. 451269-42-vol. 34-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these customers,5 and is in fact ordered by the respondents' customers with the intent of such shipment either as articles of commerce or to aid and facilitate commerce." H. THE ORGANIZATIONS INVOLVED International Brotherhood of Bookbinders, Local No. 63, is a labor organization affiliated with the American Federation of Labor. It maintains its office and headquarters at Los Angeles, California, and admits to membership employees in the bindery of the respondents' Whittier, California, plant. International Printing Pressmen and Assistants' Union of North America, Local No. 78, is a labor organization affiliated with' the American Federation of Labor. It maintains its office and head- quarters at Los Angeles, California, and admits to membership em- ployees in the pressroom of the respondents' plant at Whittier, California. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged refusal to bargain 1. The events prior to November 27, 1939 Joint organization meetings for both the Bookbinders and the Pressmen were held at the home of James C. Jennings, foreman of the respondents' pressroom, commencing on about November 11, 1939. By November 14, a majority of the employees in the pressroom and bindery, respectively, had designated the Pressmen and the Book- binders, respectively, as their representatives for the purposes of collective bargaining. On or about November 13, two representatives of the Unions, Albert E. Simonds for the Bookbinders, and Charles S. Hall for the Press- men, called at the respondents' office, where they saw Jackson, one of the respondents who is the superintendent of the plant. The union representatives stated to Jackson that they represented a ma- jority of the respondents' employees in the pressroom and the bind- ery and wished to negotiate on their behalf. Jackson did not question 5 Cf. Matter of Aronsson Printing Company and Detroit Printing Pressmen's and Assistants' Union No. 2, et al, 13 N. L. R. B. 799. E For instance , one firm sends about 75 per cent of its catalogs outside the State of California . Three other customers each send approximately 20 per cent of their catalogs and advertising matter outside the State . One company publishing a magazine printed by the respondents each month distributes about two -thirds of each issue outside the State, while a second company publishing a magazine distributes approximately 50 per cent of its issues outside the State of California. About half the copies of a book published for an individual were distributed outside the State of California and a textbook company secures approximately 50 per cent of its out-of-State merchandise from the respondents. SAM M. JACKSON ET AL. 199 their authority to represent the employees,' but told them that it would be necessary to consult with Holdsworth, another of the re- spondents who is the business manager. An appointment was made for the next morning. Before leaving, the union representatives gave Jackson copies of two proposed agreements, one covering the employees in the pressroom and the other the employees in the bindery. The proposed agreements, which were drawn up on printed forms, provided for a closed shop in both the pressroom and the bindery. Both agreements also provided, respectively, that all presswork and all bindery work sent by the respondents to an outside shop must. be sent only to a pressroom or a bindery " recognized by the Allied Printing Trades Council, as a union establishment." 8 Both agree- ments further provided that the respondents would abide by the respective scales of wages and shop rules incorporated in separate booklets attached to the respective agreements. The agreements, as thus supplemented, set out in considerable detail rules and scales pertaining to such matters as wage rates, hours of employment, over- time and double time, conditions of employment, and apprenticeship.9 On or about November 14, 16, 20, and 24 meetings were held at the respondents' plant at which Simonds; H,(lll, and Edward Balsz, an international representative of the Pressmen, represented the Unions. At these four meetings Holdsworth and Jackson repre- sented the respondents. Only Jackson testified for the respondents concerning these meetings, since Holdsworth was under the care of a physician at the time of the hearing. Jackson testified in sub- stance that in the course of those meetings there was a full dis- cussion of the Union's proposals; and more specifically, that the respondents discussed and expressed their disagreement with the provisions requiring that press and bindery work sent to outside shops be sent to a "union establishment," that the respondents con- tended they were unable to pay the Los Angeles wage scale provided 4 At no time during any of the subsequent negotiations did the respondents raise any question as to the majority designations claimed by the Unions , the appropriateness of the units claimed by the respective Unions, or as to whether the Unions sought to represent the employees in the units jointly. $A similar provision in a closed-shop contract with the International Typographical Union, herein called Typographical , under which the respondents had operated for several years, had been waived year after year by Typographical. U Several of the employees in the respondents ' pressroom and bindery had had no ex- perience in any plant other than that of the respondents , and were capable of performing only a limited number of operations. The Los Angeles wage scale requested by the Unions was higher than " that which the respondents had been paying Thus , presumably, the situation which actually confronted the respondents and the Unions at the outset of their negotiations was one which required either acceptance by the respondents in toto of the detailed demands of the Unions , or patient and careful adaptation of those demands to the conditions and the experience of the employees prevailing in the bindery and the press- room of the respondents. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for by the proposed agreements but came to an understanding with the Unions on wage increases for certain classes of employees, and that the respondents stated their disapproval of some of the overtime and double-time provisions.10 In effect, the union representatives testified with respect to these meetings that Holdsworth stated that he did not desire to deal with the Unions and that the re- spondents refused to discuss the proposals of the Unions. How- ever, the union representatives admitted that the closed-shop pro- visions of the contract were discussed and that the respondents objected thereto. Balsz conceded that wage rates were also discussed, and that the Unions, in response to the respondent's objections to the "Los Angeles scale" embodied in the proposed agreements, stated that they might reduce their demands. Further, Balsz, in explaining the addition of two paragraphs to a modification of the proposed contract prepared by the Pressmen on November 27, as described below, admitted that the substance of these two paragraphs had been discussed with the respondents at an earlier meeting. Finally, at the meeting of November 24, the Unions submitted in writing de- tailed modifications of their original proposals, and at the conclu- sion of this meeting they arranged a further conference, as they had at each of the previous meetings. In his, Intermediate Report the Trial Examiner, upon the admissions of the union representa- tives, upon the conduct of said representatives in arranging for meeting after meeting and submitting modified proposals on Novem- ber 24, and upon Jackson's demeanor as a witness, credited Jackson's testimony. From the foregoing, and upon the entire record, we are satisfied and find, as did the Trial Examiner, that the proposals of the Unions were discussed and considered in good faith by the re- spondents at the meetings between November 14 and 24.11 During the course of these negotiations, on November 20, the respondents posted, without prior submission or notification to the Unions, a notice fixing the wages and hours of work of the bindery 10 For instance , the Unions insisted on double time for Sundays and' holidays. Under their respective contracts with the Typographical , of which union both Jackson and Holdsworth had been members for years, the respondents had never paid more than time and a half for such overtime . Throughout all of the negotiations discussed 'herein, the respondents refused to agree to pay more for overtime to the Bookbinders and the Press- men for Sundays and holidays than they were accustomed to paying the employees in the composing room. Furthermore, the Unions insisted that all work on Saturday afternoon be paid for as overtime, while the respondents , who were planning to operate on a 40-hour week, wanted to stagger the five 8-hour days worked by each employee in such a way as to be able to work on Saturday afternoon without paying overtime. 11 Due consideration has been given both to the bearing of subsequent events discussed below on the question of the good faith of the respondents , and to the bearing of the alleged anti-union attitudes and remarks attributed to the respondents, discussed in the last section of these findings. SAM M. JACKSON ET AL. 201 and pressroom employees, here concerned?- Under the terms of this notice the working hours of these and other _ employees were reduced from 42 to 40 hours per week, and the wages of nearly all of the pressroom and bindery employees were raised 13 At the beginning of the meeting on November 20, within 2 hours of the posting of the notice, the union representatives questioned the respondents' procedure in posting the notice and were given a copy thereof at their request. As found above, at this meeting and at the subsequent meeting of November 24, the parties continued their dis- cussion of the Unions' proposed agreements and supplements thereto, and, as set forth below, on November 28 the respondents offered to enter into a signed contract with the Unions embodying the terms of the notice. At the hearing Jackson explained that the notice was, posted following a discussion with Holdsworth, in which it was decided to reduce the working hours Qf all plant employees from 42 to 40 because, among other reasons, the 42-hour working week which had recently been put into effect in compliance with the Fair Labor Stand- ards Act was not adapted to the respondent's plan of operation,14 and that the Unions were not notified previous to the posting because the terms of the notice regarding hours of work were not limited in appli- 12 The full text of the notice is as follows : NOTICE Beginning Monday, November 20, 1939 all employees of the Western Printing Company will work 40 hours per week. In the pressroom and bindery the following wages will be paid : Pressmen --------------------------------------------- $ 1.00. Apprentice pressmen ------------------------------------ . 85 Cylinder feeders---------------------------------------- . 75 Platen feeders ( 1st 6 mo.) ------------------------------ . 30 Platen feeders ( 2nd 6 mo.)------------------------------ . 40 Stock cutter ------------------------------------------- . 75 Folder operator ---------------------------------------- . 75 Apprentice bindery women------------------------------ . 373A Experienced bindery women ( 3 yrs. or more) -------------- . 50 per hour. per hour. per hour. per hour. per hour. per hour. per hour. per hour. per hour. All time worked over 8 hours per day or more than 40 hours per week will be paid for at price and one half. This rate of pay need not affect the rate of anyone receiving more per hour than the above amount. WESTERN PRINTING COMPANY, By JACKSON. =It appears that the Unions and the respondents had previously reached an agreement upon the wages to be paid to certain of the bindery and pressroom employees. 'A More specifically in this connection , the record shows the following : The respondents operate their plant 48 hours per week, divided into six 8-hour working days. Shortly before the respondents entered into negotiations with the Unions, they were required, under the terms of the Fair Labor Standards Act, to reduce the weekly working hours of all employees from 44 to 42, with a maximum of 8 working hours per day. In order to utilize the 2 hours remaining after employees worked 5 8-hour days , the respondents had their employees work a split shift of but 2 hours on one day each week. This proved unsatis- factory, and therefore it was decided to eliminate the 2-hour split shift and put all plant employees on a 40-hour work week. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cation to the bindery and pressroom employees, but applied to all plant employees. From the foregoing, and upon the entire record, we are satisfied, as was the Trial Examiner, that the respondents' action in posting the notice of November 20 was not intended to, and did not have the effect of, discouraging collective bargaining or membership in the Unions. While a unilateral determination of terms of employment with re- spect to which a statutory representative is attempting to bargain normally evidences bad faith'15 lender all the circumstances of this case, including the fact that immediately after the posting of the Notice the respondents continued to discuss and consider the proposals of the Unions, we do not find that the respondents' action in issuing the notice without prior consultation constituted a refusal to bargain in good faith.16 2. The breakdown in negotiations ; the events of November 27 By the close of the meeting of Friday, November 24, the respond- ents and the Unions were still in disagreement on a number of mat- ters, including the closed-shop and double-time provisions. A further conference was set for 2:30 on the afternoon of Monday, November 27. However, at a meeting of the Unions on the evening of November 24, a strike vote was taken and carried. Although the record is not clear as to the exact wording of the question voted upon,17 it appears that the vote authorized the officials of the Unions to call a strike, if they considered it necessary to do so. On the morning of Monday, November 27, Balsz, Hall, and Simonds came to the respondents' plant shortly before 7: 30, the time at which the employees customarily reported to work. In effect, they told the pressroom and bindery employees as they came to work to remain outside the plant pending an attempt to negotiate further with the 11 See, e. g., Matter of Whittier Mills Co., etc and Textile Workers Organizing Committee, 15 N. L R. B., 457, enf'd National Labor Relations Board v. Whittier Mills Co , 111 F (2d) 474 (C C A. 5) ; Matter of Wilson and Company and United Packinghouse Worl ers, L I U, 51 P. W. 0 C of C 1 0, 19 N. L. R B 990, enf'd Wilson it Co vi National Labor Relations Board, 115 F. (2d) 759 (C. C. A 8) ; Matter of Chicago Apparatus Com- pany and Federation of Architects, Engineers, Chemists and Technicians, Local 107, 12 N. L R. B. 1002, enf'd National Labor Relations Board v. Chicago Apparatus Co., 116 F. ( 2d) 753 ( C. C. A 7 ) ; Matter of John J. Ovghton, et al. and Textile Workers Organ izing Committee ( C I 0.), 20 N . L. R. B 301, enf'd mod Windsor Mfg Co v National Labor Relations Board, 118 F (2d) 494 (C C A 3 ) , Matter of Inland Lime and Stone Company and Local No 377 of the International Union of Mine, Mill and Smelter Workers ( C. I. 0.), 24 N L R B 758, enf 'd F (2d ) (C. C. A 7 ). Matter of George P. Pilling it Son Co. and Dental, Surgical and Allied Workers Local Industrial Union No 119,4 affiliated with the C. 1. 0., 16 N. L. R. B. 650, enf'd National Labor Relations Board v. Pilling & Son Co., 119 F. (2d) 32 (C. C. A. 3). 16 Cf. Matter of Westchester Newspapers, Inc., et al. and Westchester Newspaper Guild, etc, 26 N. L. R B. 630. 1 11 Simonds testified that he was unable to find union records of what transpired at that meeting or at any other of the several union meetings material herein. SAM M. JACKSON ET AL. 203 respondents. Although not specifically stated in the record, it is nevertheless clear that the pressroom and bindery employees agreed not to go to work until notified to do so by the union representatives, and we so find. Jackson arrived at the plant shortly after 7: 30 a. in., at which time the union representatives informed him, in substance, that they wished to conclude the negotiations and obtain signed agreements. After a discussion with the union representatives, Jackson went into the plant and talked with Holdsworth, who had arrived at the plant in the mean- time. After a discussion with Holdsworth, Jackson rejoined the union representatives, who were waiting outside 18 Jackson told the union representatives that the respondents were willing to sign agreements with the Unions, but not in the form in which they had been submitted. The testimony of Jackson and the union representatives is at vari- ance as to the modifications which Jackson said would make the agree- ments acceptable to the respondents. Jackson testified that when he was asked what changes the respondent desired in the proposed agree- ments, he replied that they had already discussed the changes the respondents desired at their past meetings. Jackson added that he specifically discussed with the union representatives at that time the question of double time for Sundays and holidays, which he said the respondents could not agree to, and that he also mentioned a desired change in a provision concerning the number of pressmen to be em- ployed for a particular operation. According to Jackson, at the conclusion of the discussion, it was agreed that the union representa- tives would attempt to revise the proposed agreements so as to make them acceptable to the respondents, and would present the agreements to the respondents again in the afternoon. The union representatives testified that after Jackson returned from his conversation with Holdsworth, Jackson stated 'that certain specific changes would make the Pressmen's agreement acceptable to the re- spondents; that as Jackson stated the desired changes in the Pressmen's agreement Balsz wrote the changes in pencil on the margin of a copy of the proposed Pressmen's agreement; and that Jackson had no changes to suggest in the Bookbinder's agreement. There was intro- duced into evidence a document entitled "Supplement to Wage Agree- ment, Pressmen and Assistants' Union No. 78," which was identified as the copy of the Pressmen's proposals of November 24, upon which Balsz wrote Jackson's suggested changes on the morning of November 27. This document bears certain penciled notations which Balsz testified were in his handwriting and were the changes suggested by Jackson on November 27. These penciled notations, with one exception, con- stitute simply the words "day work"- placed after the wage rate for Is No suggestion was made by the union representatives that they go inside to talk with Holdsworth also. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each of several classes of work. The one exception is a notation in pencil for the wage rate to be paid an assistant on the horizontal press. We do not credit the testimony of the union representatives concerning the proposed changes mentioned above. We do not believe that Jack- son would omit any mention of the provisions in the proposed agree- ments, such as those providing for a closed shop and double time for Sundays and holidays, to which the respondents had been objecting since November 14. It is equally incredible that the respondents would have sought changes which were in fact adverse to their own interest 19 For the foregoing reasons we are convinced, as was the Trial Ex- aminer, that Jackson's version of the above incident is true, and we find that Jackson indicated to the union representatives that if they revised their proposed agreements to meet the major objections which the respondents had expressed in previous meetings, the respondents would consider and probably sign such revised agreements. The union representatives further testified that before leaving to make the changes proposed by Jackson, Hall suggested that the em- ployees go to work, but that Jackson replied, "No, they are out now ; let them stay out until the thing is settled." Jackson denied that any such request and refusal occurred. Since Jackson's version of the events of November 27 is more credible than that of the union repre- sentatives, we credit Jackson's denial, as did the Trial Examiner. Shortly after 1 o'clock, the union representatives returned to the respondents' plant with their revised agreements. The revisions in the Pressmen's agreement consisted of the penciled notations, above discussed, and two additional paragraphs, which, while not suggested by Jackson on' that morning, had been discussed with the respondents at one of the earlier meetings, according to Balsz. On its face it appears that the Pressmen's supplement modified the original agree- ment, presented to the respondents on November 13, only by making specific changes in the scale-card provisions attached to the printed closed-shop agreement. Indeed, the first paragraph of the revised proposal read as follows : The following schedule of wages, and changes in working con- ditions, to be submitted for similar positions as given in the attached scale card. All other wage standards and working con- ditions to be and remain unchanged. The document presented on behalf of the Bookbinders was merely a retyped copy of the supplement presented to the respondents on Novem- ber 24. It also was merely an amendment in certain specific respects 'B It is clear that the limitation , "day work," following the respective wage rates might serve as a basis for union demands that the respondents pay higher rates for night work, since no rates for work other than "day work" were specified. SAM M. JACKSON ET AL. 205 to the wage scales attached to the basic closed-shop agreement, and its first clause was identical with that quoted above. Thus, from the modified proposals of November 27 themselves, it would appear that the Unions did not depart from the closed-shop provisions first pre- sented on November 13. While the union representatives stated at the hearing that they had waived these provisions in the discussions prior to November 27, they did not specify when or in what manner or form such provisions had been waived. Moreover, the closed-shop pro- visions admittedly continued to be a focal point of discussion for weeks after November 27. Under these circumstances, we do not, nor did the Trial Examiner, credit the testimony of the union representatives that the closed-shop provisions had been waived prior to November 27, and that on that day the Unions desired only the limited demands contained in the respective one-page typed supplements. Furthermore, the sup- plements, as submitted on the afternoon of November 27, continued to provide for double time for Sundays and holidays, a provision which the respondents had never accepted and which Jackson had advised the union representatives on that morning that the respondents would not accept. The union representatives testified, in effect, that when they pre- sented the supplemental agreements to Holdsworth and Jackson shortly after 1 o'clock on the afternoon of November 27, Holdsworth looked at the supplements and stated that he could not agree to them. As stated above, Holdsworth was under the care of a physician at the time of the hearing, and did not testify. Jackson testified that he was not present when the agreements were returned, but that later in the day Holdsworth told him of the meeting and stated that the agree- ments as presented by the Unions were not satisfactory and did not contain the changes which the respondents had requested. Balsz testified that at the time the union representatives returned with the agreements they told Holdsworth that "if this was acceptable that the men were ready-that the employees were ready to go back,to work." From the foregoing, we are convinced that Holdsworth refused to sign the proposed agreements submitted by the Unions because the respondents could not agree to certain provisions therein, and that the employees continued to strike because of this refusal. We find that the respondents did not lock out its employees on November 27, but that they went on strike. We further find that the respondents did not refuse to bargain collectively on or before Novem- ber 27, and that the strike which started on November 27 was not caused by any unfair labor practices of the respondents, but rather by the lawful refusal of the respondents to accede to the Unions' demands. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Further negotiations after November 27 On November 27, after the events set forth above, the Unions filed charges with the Regional Director alleging that the respondents had refused to bargain collectively with the Unions. During the after- noon, the respondents inserted advertisements in Los Angeles news- papers seeking employees. The advertisements stated that strike conditions prevailed and offered the wage rates posted on November 20. On November 28, the respondents began to hire new employees. Under date of November 28, 1939, the respondents sent to the Unions a joint 1-year written contract incorporating the wages and working conditions as set forth in the respondents' notice of November 20. So far as appears from the record, the Unions never replied to this proposal of the respondents. On or about December 1, at the invitation of the Regional Office of the Board, the respondents and the Unions met at the Board's Los Angeles office. The Unions were represented by Simonds and Hall, and the respondents by Holdsworth, Jackson, and their attorney, Harold Richardson 2e At the meeting, the Regional Director asked the parties if they could not "get together," and what their demands were. Richardson stated that the respondents had no demands and requested that the Unions present their demands. Hall and Simonds then laid upon the Regional Director's desk the closed-shop agree- inents and the scale cards which had been presented to the respond- ents at the outset of the negotiations on November 13. The Regional Director indicated that that was "a starting point," and asked if the parties could "bargain from there." Richardson then said that the respondents would submit 'a counterproposal in writing and mail it on that night or on the next day. On the evening of December 1, Holdsworth, Jackson, and Richard- son met and discussed the respective agreements and scale cards. Pur- suant to the decisions reached by the respondents in this conference, two letters were drawn up by Richardson and signed by Holdsworth. One was sent to the Bookbinders and the other to the Pressmen. The letters, dated December 1, 1939, were similar in nature. In these letters, the respondents set forth item by item a substantial portion of the provisions of the respective scale cards and stated that they were acceptable to the respondents. Wage scales in line with those posted on November 20 were offered. In each letter, the respondents stated that they would not accede to the closed-shop demands of the Unions that the respondents employ only members of 20 Richardson was retained by the respondents to negotiate for them either on or shortly after November 27, and represented the respondents in the negotiations which followed SAM M. JACKSON ET AL. 207 the respective Unions and send out work only to union establishments. The next to the last paragraph in each letter was identical and read as follows: Your attention is directed to the recent strike which was called by your organization in our plant. We feel that the strike coming as it did during negotiations which were then pending was un- called for. We are accordingly requesting that you immediately rescind the order calling such strike. Following the receipt of the above letters, meetings were held be- t%veen the respondents and the Unions, during which both parties made concessions. By December 11, the respondents and the Unions had agreed upon all matters except the closed-shop provisions and the reinstatement of the strikers. On December 12, the Unions submitted a substitute proposal for the closed-shop provisions of their agree- ments. This proposal'21 which was admittedly submitted by the Unions in an endeavor to meet the respondents' objections to the closed-shop provisions, contained among other things the following two paragraphs : All employees who failed to go to work at the Western Printing Company pressroom on November 20th, 1939,22 to be reinstated without prejudice, and at the rate of wages agreed to in this agreement. Should a vacancy occur in the pressroom, due to the discharge, resignation, or for other cause, of any of the re-instated employees,, the vacancy shall be filled by a member of this union and when other help is needed, preference shall be given to members in good standing in the union. On December 13, the respondents wrote similar letters to the Unions recapitulating prior negotiations. These letters stated that the respondents had granted certain wage increases asked by the Unions, and that the Unions had receded from their demand for double time for works on Sundays and holidays, and agreed that such overtime should follow the scale in the contract with the Typographical as it might vary from time to time, and which at the time of the negotia- tions provided for time and one-half. In both letters, the respond- ents again insisted that they could not accept the closed-shop de- mands, and that, the substitute proposal of December 12 still incor- porated the closed-shop principle and accordingly was not acceptable =While the proposal in evidence pertains only to the Pressmen, the respondents' letter of December 13 to the Bookbinders refers to such a proposal on December 12. We infer and find that the Bookbinders made a parallel proposal at the time. = This is apparently an inadvertent error. As noted above, the strike began on November 27. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the respondents.23 The next to the last paragraph in each of the December 13 letters read as follows : It is also our desire that the strike order which was made on November 20, 1939, be rescinded to the end that all of your members who desire to do so may avail themselves of the benefits obtained by our negotiations to date. , On December 20, 1939, following further conferences concerning the reinstatement of employees, the respondents wrote a letter to the Unions stating the position of the respondents concerning such reinstatements. The contents of this letter were as follows : In our last conference you inquired concerning the policy of Western Printing Company toward striking employees in the event that the strike order be rescinded. You are advised that the attitude of Western Printing Company with reference to the strike in the first instance is that it was uncalled for. The only assigned reason for the strike was the refusal to negotiate on the part of Western Printing Company. The Company disputes the fact that they have ever been unwilling to negotiate, and their willingness in this respect we feel has been evidenced throughout the entire period, both before and after the strike order. With reference to employees returning, we do not feel that all of the employees will desire to return, and in this connection suggest that all who desire to do so immediately file application for reinstatement. This will give the Company and yourselves an opportunity to take up the case of each individual desiring to return. I desire to assure you in this connection that no strik- ing employee will be refused the employment for the reason that he has participated in either a union organization or the strike itself. There will be, however, at least one instance in which reemployment will be refused for other reasons.24 With reference to the continued employment of present em- ployees replacing strikers, the Company will of course dismiss at least some of them, but the Company will nevertheless reserve the right to continue all or any of them in its employ. I regret exceedingly that your request that they all be dismissed cannot 21 In addition to the increased cost involved in sending their work only to union estab- lishments , which had been pointed out during the negotiations prior to November 27, Jackson testified that a further reason for the respondents ' reluctance to enter into a closed -shop agreement was that they felt the pressmen and the bindery workers were too little organized in and around Los Angeles to provide a satisfactory supply of skilled labor. u It appears that this refers to James C. Jennings , former ' pressroom foreman. His case is discussed below. SAM M. JACKSON ET AL. 209 be granted. Such action on the Company's part would be tanta- mount to agreeing to the closed shop principle, which is impos- sible as we have previously advised you. Such action would also amount to discrimination between union and non-union workers against which discrimination the Company has previously pledged itself. Trusting that the foregoing statements will meet with your agreement, if not with your approval, I am Most sincerely yours, [S] HAROLD RICHARDSON. According to Richardson, on about December 20 he was informed by the Unions that the employees would return to work if the re- spondents signed closed-shop agreements with new locals of the Inter- national Pressmen and Bookbinders, respectively, which would restrict their membership to workers in Whittier. Richardson testified fur- ther that after consulting with the respondents, he informed the Unions that that proposal was unsatisfactory, and that thereafter he was informed that the Unions met again and voted not to return to work in view of the respondents' rejection of their proposal. The union representatives and members, although testifying that at about this time the Unions voted to return to work and subsequently reversed that vote, gave a somewhat different but confused account as to the nature of these votes. Upon the entire record, we credit Richardson's testimony in this regard, as did the Trial Examiner. On December 26, the respondents reinstated three of the strikers upon their individual applications.25 On January 4, Balsz telephoned Richardson and asked that the respondents meet with vice-presidents of the international unions with which the local unions here concerned are affiliated. Richard- son arranged the meeting, which was held in his office in Whittier, on January 5 at 2: 00 p. m. The respondents were represented by Jackson and Richardson. The Unions were represented by Balsz and their respective international vice-presidents, Robert L. Ennis for the Bookbinders, and Harry Listman for the Pressmen. The under- standing reached at that meeting was set forth in a letter dated Feb- ruary 7, 1940, from the Bookbinders' vice-president, Ennis, to the Regional Office of the Board in Los Angeles. This letter substantiates in all material respects the testimony of the respondents' witnesses as to what occurred at the meeting on January 5. We find that the z According to undisputed evidence adduced by the respondents , the three employees informed the respondents that they had consulted officials of the State Labor Department and agents of the Board and had been informed that such reinstatement was permissible. There is no evidence that the respondents were seeking to break the strike by soliciting the individual employees to return to work. 210 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD portidns of the letter set forth below, which apply to the meeting of January 5, reflect what actually took place at this meeting. After consideration of the letter as of January 4,26 1940, at this meeting, it was agreed by all concerned that this matter would be reopened for consideration and, if possible, adjustment of the main point that seemingly was an obstacle, being the closed shop clause of a previous agreement. After considerable discussion by all concerned it was agreed that the closed shop clause would be set aside for the present and that the strikers would file their applications to return to work with a general understanding that one member of the Printing Pressmen would not be acceptable, a Mr. Jennings, by the firm. It was stated at this. meeting by the Pressmen that Mr. Jennings had no desire to return to this firm as an employee and this phase was eliminated. The agreement reached by all concerned at this meeting was as follows : 1. That all the employees now on strike would file their appli- cations at once for their positions with this firm. 2. That they, the employees, would be placed back in their positions as the work warranted same. 3. That the matter of the strike breakers now in the employ of this Company, be left in the hands of the firm with the assur- ance from Mr. Richardson and Mr. Jackson that if we would agree to this action and show a little faith the strike breakers would be eliminated in the near future and the strikers reinstated. According to Ennis' letter, the strikers met on January 6, and voted to approve Ennis' report of the conference of January 5, and "to report back for work and file their applications for their positions." On January 8 or shortly thereafter, all of the striking employees, except James C. Jennings, the former pressroom foreman, filed written individual applications for reinstatement 27 On January 12 the respondents wrote to the Unions jointly, ac- knowledging receipt of applications from "all striking employees" except Jennings, and stating that each applicant would be considered and notified as soon as there was an available opening for employ- ment. The letter of January 12 contained the following two paragraphs: 2c The said letter of January 4, was a letter from Richardson confirming the arrange. ments for the meeting, recapitulating some of the negotiations , and asserting that the respondents were still unwilling to accept the closed-shop provisions. 27 The names of the employees filing the written applications for reinstatement are set forth in footnote 2. See also footnote 3. SAM M. JACKSON ET AL. 211 We regret that at this time there are no such openings due to the fact that upon being notified by your representatives that the employees had voted not to return to work in response to our request of December 20, 1939, and previous requests, the com- pany was compelled to and did replace the striking employees with new employees. We trust that in the immediate future we will be able to replace as many of the striking employees as possible. Five days later, on January 17, the respondents wrote similar letters to the Unions with reference to the applications for reemploy- ment. Each letter explained that certain persons had been placed on the "extra list," and reasons were given why certain individuals could not at that time be reemployed. The letter to the Pressmen specifically requested that Hansen and Rice be instructed "to report to Mr. Jackson at their earliest opportunity." The letter to the Bookbinders asked that Millie Furry and Helen Weadon (Easter- ling) "report to Mr. Jackson at their earliest opportunity so that. arrangements can be made to employ them when work is available." None of these four employees ever reported to the respondents as re- quested in the letters of January 17. The union representatives testified in effect that they never instructed the four employees to report and that the Unions' position at that time was that unless all employees for whom there was work were taken back to work, dis- placing strikebreakers if necessary, none would return. Following the receipt of the respondents' letters of January 17, further con- ferences were held between the respondents and the Unions, in which the Unions took the above position. After these conferences, the respondents again wrote similar letters, dated January 25, to the Unions, setting forth the respondents' position with regard to the availability of employment for certain employees. The gist of the respondent's postion on the entire question of reemployment is set forth in the identical first paragraph of each letter. This para- graph reads in part as follows: Supplementing my last letter to you of January 17, 1940, it is my understanding that the striking employees of both the press- room and bindery in Western Printing Company have unani- mously decided that they will not return to work except under circumstances which will admit the re-employment of the entire group of strikers (excepting James Jennings and his son). If that is their decision, the company will have to abide by it, of course, but as we explained to you in our letter of January 17, 1940, and in our conference at your office January 24, 1940, it is impossible, due to lack of work and 'the lack of jobs to re- employ all of these employees. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondents', letters of January 25 terminated the relations between the respondents and - the Unions. None of the striking employees thereafter filed applications for employment. From the foregoing, and upon the entire record, we are satisfied and find that the respondents did not refuse to bargain collectively, within the meaning of the Act, subsequent to November 27, 1939. We have found above that the respondents likewise did not refuse to bargain collectively on or prior to this date. In view of the fore- going it is unnecessary to make any determination as to the appro- priate bargaining unit or units or as to representation by the Unions of a majority in the appropriate unit or units. B. The alleged refusals to reinstate employees The complaint alleges that the respondents discriminated in re- gard to the hire and tenure of employment of the 16 employees named above.28 James C. Jennings was employed by the respondents in 1929 as a, pressman. Some 3 or 4 months later he was given the position of foreman of the pressroom, in which he remained until November 27, 1939, when he went on strike under the circumstances set forth above. Jennings was active in organizing the respondents' employees in the Unions; as noted above, the Unions held their organization meetings at his home in Whittier. On November 29, 1939, two days after the strike had begun, Jen- nings' position was filled by one Gutwein, who has continued in the respondents' employ. Thereafter, in the negotiations held in De- cember, during which the reinstatement of the strikers was discussed, the respondents took the position that they would not consider the reinstatement of Jennings and advanced Jennings' drunkenness as the reason therefor. In this connection, it was shown at the hearing that for a number of years preceding the strike of November 27 Jennings, "a very high-class pressman . . . when he was sober," had become so drunk upon various occasions that he was unable to come to work for several days. As set forth above, on or before January 5, 1940, the Pressmen withdrew their demand that Jennings be rein- stated. Jennings did not apply for reinstatement thereafter. Jennings' leadership in organizing the respondents' employees and the fact that the respondents had not considered his drunkenness a sufficient handicap to warrant his discharge during the years prior to the strike raise doubt as to whether drunkenness was the true reason for the respondents' refusal to reinstate him. However, as noted above, Jennings' position was filled by Gutwein immediately 21 See footnotes 2 and 8. SAM M. JACKSON ET AL. 213 after the start of the strike, which was neither caused nor prolonged by any unfair labor" practice. There is no showing that Gutwein was less efficient than Jennings as a workman or that Gutwein had any characteristic detrimental to his efficiency such as Jennings' periodical drunkenness. Under the circumstances we agree with the Trial Examiner that the weight of the evidence in the record as a whole is not sufficient to sustain the allegations that Jennings was refused reinstatement because of his union membership and activity.29 The remaining strikers. As found above, on January 5, 1940, it was agreed between the Unions and the respondents that the strikers, excepting James C. Jennings, would file applications for reinstate- ment, that the strikers would be reinstated "as the work warranted same," and that "the matter of the strike breakers . . . be left in the hands of the firm with the assurance . . . that the strike breakers would be eliminated in the near future and the strikers reinstated." On or shortly after January 8 the 15 striking employees filed their applications, and were advised by the respondents that there were no positions available since the strikers had been replaced by new em- ployees, but that the applicants would be considered and notified when positions became available. At this time the respondents had in their employ 19 persons, exclusive of the 3 strikers who returned to work in December,S° who had been hired during the strike to fill positions vacated by strikers. Thereafter, in their letters of Janu- ary 17, the respondents informed the Unions that they had placed 6 of the striking employees on the "extra list" ; 31 advanced certain reasons why 4 striking employees could not be reemployed at that time; 32 and requested of the Unions that Hansen and Rice "report. to Mr. Jackson at their earliest opportunity" and that Furry and Helen Weadon (Easterling) "report to Mr. Jackson at their earliest opportunity so that arrangements can be made to employ them when work is available." 33 This statement was unsatisfactory to the Unions, who thereupon advised the respondents that none of the ^ In connection with the respondents' refusal to consider the reinstatement of Jennings and the reasons advanced for the refusal to reinstate Weadon and Youngquist, discussed below, we have considered the testimony of Baker, a striking employee, to the effect that during a conversation with Jackson in about July 1940 Jackson said that Jennings "sold out himself, he sold out the plant , and he sold us out, God bless his heart" and that, by striking, the employees "certainly did him a favor " in that "he got rid of three men (Jennings, Youngquist, and Weadon ) he had been wanting to get rid of and he didn't have any reason to get rid of them before." Jackson denied that he made such state- ments during the conversation . We are satisfied from Jackson's version of this conversa- tion and from the character of Baker's entire testimony that Jackson did not make these statements. so See footnote 25, supra. 31 Glen Armstrong, Neva Palmer, Ethel Kelly, Clara Salm, Grace Laverne Baker, and Mary Jones Pfirrman 82 Vincent Youngquist , Claude Weadon , William G. Harris, and Jack 'K Smith. _U The two remaining striking employees were James C. Jennings , whose case is dis- cussed above, and his son, James R. Jennings, who did not desire reinstatement. 451269-42-vol. 34-'-15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I striking employees would return to work unless the respondents would reinstate all the strikers except James C.' Jennings and James R. Jennings to available positions, displacing employees hired since the strike began if necessary. As appears in their letters of Janu- ary 25' to the Unions, the respondents refused to accede to their demand. None of the striking employees thereafter applied for employment. The Unions contend that the reasons advanced by the respondents on January 17 for refusing to reinstate certain of the strikers, viz, Youngquist, Weadon, Harris, and Smith, show that the respondents were determined not to 'reinstate the striking employees because of their union activity. The respondents asserted that Yowngquist, who was employed as a cutter in the bindery prior to the strike, was "not equipped for any other employment in the bindery other than that of cutter," and that "the Company has not now sufficient work to employ a journeyman cutter and for the time being at least the cut- ting will be done by an apprentice." While Youngquist testified specifically that he had performed various types of bindery work other than cutting, the respondent Jackson testified that to his knowl- edge Youngquist had not performed such other work. Weadon, who was Youngquist's foreman and who also was a striker, was called as a witness by the Board, but did not testify as to Youngquist's ability to perform bindery operations other than cutting. Concerning Weadon, who was foreman of the bindery prior to the strike, the re- spondents stated that his position no longer existed. Following the strike, Jackson added the foremanship of the bindery to his other duties as foreman of the composing room and superintendent of the plant. Jackson had acted as foreman of the bindery some years before Weadon had been employed. The respondents also stated that one of the three strikers who had returned to work in Decem- ber, as set forth above, was satisfactorily performing the work on the folder which Weadon had done in addition to his work as fore- man of the bindery. No evidence to the contrary appears in the record. As regards Harris and Smith, the respondents stated : "these men are both feeders, and in accordance with the policy adopted by the Company and heretofore discussed, the Company will no longer employ feeders; journeymen pressmen will be used hereafter in all cases." The Unions contended that Harris and Smith were qualified as journeymen pressmen. Although there is evidence that prior to the strike Harris and Smith had performed some operations ordi- narily performed by pressmen, the record also shows that a consider- able portion of their work consisted of feeding presses and that neither of these persons was considered or classified as a qualified pressman by the respondents. Indeed, Harris described himself as a feeder in his application for membership in the Pressmen. SAM M. JACKSON ET AL. 215 Upon the entire record, including the fact that all positions avail- able at the time the strikers applied for reinstatement were filled, the fact that the strike was neither caused nor prolonged by any unfair labor practices,34 and the fact that the respondents demon- strated their willingness to employ several of the strikers when vacan- cies occurred, we are satisfied and find, as did the Trial Examiner,' that the respondents did not refuse to reinstate any of the striking employees because of their union membership or activity. C. Alleged interference, restraint and coercion At the hearing, witnesses for the Board gave testimony concerning statements allegedly made to them by two of the respondents, Jack- son and Lewis. For instance, Armstrong testified in effect that one night in the pressroom, about November 16, Jackson showed him a slip of paper with wage rates on it which they had decided to pay and told him that they could not have Los Angeles dictating to them; that they would have to close up the shop if they had to pay more; and that he did not object to union membership but thought a Whit- tier local would be better. According to Jackson's version of the conversation, Armstrong came to him and asked him if he did not think a local of their own in Whittier would be better, and that he told Armstrong in substance that he was not doing Armstrong's thinking for him. Jennings, the pressroom foreman, testified in ef- fect that he and Jackson had frequently talked about unions, that in October 1938, Jackson had shown him a newspaper photograph of John L. Lewis in a C. I. O. office with a sign on the wall reading, "Pay union dues here," and had said, "There is the reason for your unions. All they want is your money. They are just a bunch of racketeers." Among other things, Jennings also testified that 2 or 3 days after November 14, Jackson came ,to him one morning and told him that the union representatives were coming out to the plant, and that he wanted Jennings to meet the representatives "and tell them that they weren't needed out there, that we could settle our own differences back there and to tell them to go back to Los Angeles." Jennings further testified that about November 14 or 15 after the union or- ganizers left the plant, Jackson pointed to an employee named Youngquist and said, "I always thought that fellow was a Communist. He is responsible for this whole thing. Now I know he is a Com- munist." In addition, Jennings testified that on November 18 Jack- son suggested in effect that four of the employees keep their union 11 Cf N L R. B. v. Mackay Radio & Telegraph Company, 304 U S, 33, rev'g 92 F. (2d) 761 _(C. C. A. 9), and enf'g Matter of Mackay Radio & Telegraph Company and American Radio Telegraphast'a Association, Sat Francisco Local No. 3, 1 N L. R. B, 201. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards and that they let the, rest of the pressroom and the bindery alone. Jackson specifically denied all of the foregoing testimony of Jennings with the exception of the October 1938 conversation relative to John L. Lewis, about which he did not testify. Jackson also spe- cifically denied having discussed union activities with Jennings after he had been contacted by the union organizers on November 13, 1939. Before that time Jackson and Jennings admittedly had been on friendly terms. One Board witness, Vincent Youngquist, testified that about No- vember 23 or 24 Miss Lewis, one of the respondents, came to him by his cutting machine, that she was trembling from head to foot, and that the following took place : She said : "I suppose you realize when you walk out of here that you will lose your home." And I didn't answer her and she says, "You know, it's a terrible thing to lose your job, to be out of work." She says, "I just wanted to let you know that I have some very good contacts in Los Angeles and I would be more than glad to take your property and handle it for you because of your losing it." She said, "Several nights ago I took a basket of food out to some people that were starving, and some starv- ing children and," she said, "It was a pitiful sight." I told her I had no idea, no intention, of leaving my home and she stomped off and that was the end of the conversation. Lewis admitted having been friendly with Youngquist for some 10 or 12 years, but denied ever having discussed union activities or his union membership with Youngquist. She specifically denied the con- versation testified to by Youngquist or anything of a similar nature. Lewis also denied having real estate connections excepting that she had lived in and sold two homes. The Trial Examiner, who observed the demeanor of the witnesses, credited the denials by Jackson and Lewis of the foregoing and other similar testimony by witnesses for the Board, and found that the said respondents had not interfered with, restrained, or coerced their employees by any of their acts or statements. We concur in the find- ing of the Trial Examiner.85 George Morrison, who served as assistant to Jackson in the re- spondents' composing room and who, according to the laws of Typo- 5 There is also testimony that the Bookbinders attempted to organize the bindery at the Whittier plant during 1928 and 1929 ; that the Pressmen attempted to organize the pressroom during June 1936 ; and that Jackson attempted to discourage union organization in each case . Both organizational attempts took place before the respondents formed their co-partnership , and Jackson denied having any memory of such attempts. We have considered the testimony concerning these earlier organizational attempts and agree with the Trial Examiner that the evidence does not establish the existence of an anti-union attitude on the part of Jackson prior to the formation of the co-partnership. SAM M. JACKSON ET AL. 217 graphical, did not have the power to hire and discharge,36 admitted having had discussions a few days before November 27 with three employees, Youngquist, Rice, and Jennings. We credit, as did the Trial Examiner, the testimony of Morrison concerning these con- versations; the following findings are based largely thereon. Mor- rison was formerly president of the Whittier Typographical Local for several years, and had considerable experience in union affairs before coming to work for the respondents some 12 years ago. From his personal experience, both at Whittier and elsewhere, he thought that it was more desirable to have a Whittier local than to belong to a Los Angeles local. Morrison, an active member of the Typographical local in Whittier, was personally interested in the organization of other of the respondents' employees by printing trade unions. Such an interest by an active union leader in organizational work taking place by closely allied unions 37 is not unnatural. In discussing the organizational activities of the Pressmen and Bookbinders with Jennings, the foreman of the pressroom, Morrison told Jennings, among other things, that they should be careful how they proceeded and that they should do it "in a smart way" through a local in Whittier. In a discussion of the relative merits of a local in Whittier in contrast to membership in a Los Angeles local, Morrison told Youngquist, a cutter in the bindery, that he thought it would be better for them to have a Whittier local. Youngquist replied that he thought they could get along further with a Los Angeles local "back of them." In a similar conversation with Martin Rice, a pressman who worked a few feet from him and with whom he had been friends for some time, Morrison told Rice, in effect, that he thought Rice would be foolish to go out on strike. None of the employees with whom these discussions were had came under Morrison's supervision, and one of them, Jennings, who had authority to hire and discharge employees, clearly rated higher in supervisory authority than Morrison. Morrison denied that he acted in any way at the instructions of the respondents. He has no financial interest in the business. The fact that foremen with supervisory authority traditionally have been active in the printing-trade unions is clearly borne out by the record in the instant case. We find, as 86 The relevant portion of the General Laws of Typographical reads in part as follows : In union composing rooms the foreman is the only recognized authority . Assistants may be designated to direct the work, but only the foreman may employ and discharge. Jackson himself served as foreman of the composing room and Morrison served as his assistant. 87 The close relationship existing between Typographical and other printing trades unions, such as the Pressmen and Bookbinders , is shown by the 8 -page agreement among these unions and two others controlling "an association for joint ownership of the allied printing trades union label." 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did the Trial Examiner, that upon this record Morrison's statements do not reflect coercive conduct by the respondents. D. Conclusions We have found above that the respondents did not, as alleged in the complaint ; ( 1) refuse to bargain collectively , within the meaning of the Act; ( 2) lock out their employees and subsequently refuse them reinstatement, thereby discouraging membership in the Unions; or (3) otherwise interfere with , restrain, or coerce their employees in the exercise of the rights guaranteed in Section 7 of the Act. Ac- cordingly, the complaint will be dismissed in its entirety. 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. The operations of the respondents, Sam M. Jackson , Cecil J. Lewis, and Harry C. Holdsworth , doing business as Western Printing Company, a co-partnership , at their Whittier, California, plant, occur in commerce , within the meaning of Section 2 ( 6) of the Act. 2. International Brotherhood of Bookbinders , Local No. 63, A. F. L., and International Printing Pressmen and Assistants ' Union of North America, Local No. 78, A. F. L., are labor organizations , within the meaning of Section 2 (5) of the Act. 3. The respondents have not refused to bargain collectively with International Brotherhood of Bookbinders , Local No. 63, A. F. L., and International Printing Pressmen and Assistants ' Union of North America, Local No. 78, A. F. L., within the meaning of Section 8 (5) of the Act. 4. The respondents have not discriminated in regard to hire or tenure of employment or any term or condition of employment , within the meaning of Section 8 (3) of the Act. 5. The respondents have not interfered with , restrained, or coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) 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 complaint against the respondents , Sam M. Jackson, Cecil J. Lewis, and Harry C. Holdsworth, doing business as Western Printing Company, a co- partnership, be, and it hereby is, dismissed. SAM M. JACKSON ET AL. 219 MR. EDWIN S. STIITH, dissenting : In my opinion the respondents engaged in unfair, labor practices, within the meaning of Section 8 (1), (3), and (5) of the Act. I dissent therefore from the • Decision and Order dismissing the complaint. Conferences for the purpose of collective bargaining were held between the Unions and the respondents between November 14 and 24, 1939. In the course of these negotiations on November 20, the respondents posted, without prior submission or notification to the Unions, a notice fixing the wages and hours of work of the bindery and pressroom employees here concerned. Thus the respondent sought to settle unilaterally a matter "peculiarly a subject for collective bargaining . . . with respect to which the employees had appropriately requested collective bargaining." 38 As the majority of the Board recognizes, the Board and the courts have frequently held that such action constitutes a refusal to bargain collectively and an unlawful undermining of the bargaining authority of the statu- tory representative.311 In my opinion no reason appears in the in- stant case warranting a departure from these precedents. That cer- tain portions of the notice had application to employees other than those, on whose behalf the Unions sought bargaining obviously can- not excuse the respondents from conduct in disregard of their duties under the Act to those employees who had duly selected a bargaining representative. Nor am I convinced, as the majority of the Board appears to hold, that this violation of the Act was cured or obviated by any subse- quent conduct of the respondents. True it is that Unions sought collective bargaining after the posting of the notice and the re- spondents met with them. But the natural effect of the respondents' unilateral determination was to impede and frustrate the bargaining process. Indeed, that such was the intended and actual effect of the unilateral determination is affirmatively disclosed by Holdsworth's statements at the conference of November 20, when the union repre- sentatives learned of the posting of the notice, and at the subsequent conference of November 24, when the union representatives submitted modifications of their original proposals, that the notice of November 20 embodied the only concessions which the respondents would grant. The union representatives testified that Holdsworth so stated, and although denied by Jackson, I am satisfied that their testimony accurately reflects what occurred because it is consistent with the 'IN. L. R. B. v George P. Pilling & Son Co., 119 F. (2d) 32 (C. C. A. 3), enf'g Matter of George P. Pilling & Son Co. and Dental, Surgical and Allied Workers Local Industrial Union No. 119, affiliated with the C. I. 0, 16 N. L R B. 650. a" See cases cited in footnote 15. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , respondents' conduct in posting the notice and because in my opinion the record fails to disclose that the respondents retracted, or mani- fested any unwillingness to disavow, their prior unilateral deter- mination. There is further evidence showing that the respondents did not deal in good faith with the Unions. In particular, L credit Arm- strong's version of his conversation with Jackson on the evening of November 16 to the effect that Jackson showed him a slip of paper containing increased wage rates similar to those appearing in the November 20 notice, stated that he and Holdsworth had decided to pay the amounts stated thereon and that they would have to close the plant if they were forced to pay more, further stated that he would not have a "Los Angeles union" running his business for him, and advised Armstrong that he objected to the employees joining a "Los Angeles union," but that it would "be all right" for them to organize "a local union in Whittier." In my opinion, Arm- strong's testimony is consistent with Jackson's admitted preference for dealing "with fellows who were thoroughly conversant with local conditions" rather than with the "Los Angeles unions" here in- volved; and with' the respondents' action in posting the November 20 notice, which, according to Jackson, embodied his and Holdsworth's decision as to "what we could pay." Because of this and the incon- sistencies and contradictions in Jackson's testimony generally, I do not credit Jackson's version of this incident. For similar reasons I believe Jennings' testimony that Jackson told him to tell the union representatives "that they weren't needed out there, that we could settle our own differences back there and to tell them to go back to Los Angeles." From the foregoing conduct of the respondents in posting the notice of November 20 and the above-mentioned statements of Holdsworth and Jackson, I am convinced that the respondents did not discuss and negotiate with the Unions respecting their proposals with an open and fair mind and with a sincere purpose to find a basis of agreement, as required by the Act .411 I would find that by said acts and statements the respondents refused to bargain collectively and interfered with, restrained and coerced their employees in the exer- cise of the rights guaranteed in Section 7 of the Act. I would also find that the strike which began on November 27 was caused, at least 4° See Globe Cotton Mills v. N. L. R. B. 103 F. (2d) 91 (C. C. A. 5), enf'g as modified Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N L R. B. 461; N. L R. B. v. Griswold Mfg. Co., 106 F. (2d) 713 (C. C. A. 3), enf'g Matter of The Griswold Manufacturing Company and Amalgamated Association of Iron, Steel and Tin Workers o f North America, Lodge No. 1197, 6 N. L. R. B. 298; N. L. It. B. v. Highland Park Manufacturing Company, 110 F. (2d) 632 (C. C. A. 4), enf'g Matter of Highland Park Co. and Textile Workers Organizing Committee, 12 N. L. R. B. 1238. SAM M. JACKSON ET AL. 221 in part, by the respondents' unfair labor practices. Although the immediate cause of the strike was the failure of the Unions and the respondents to agree to terms and conditions of employment, this failure must be attributed, at least in part, to the respondents' uni- lateral determination of wage rates and other important - terms of employment which were the subject of negotiation. It is plain that the normal effect of such unlawful interference would be to disrupt bargaining relations. Certainly, there is no showing herein that the respondents sought to, or did, dispel the effects of their unilateral determination prior to the strike, nor is it otherwise shown that the strike would have occurred absent the respondents' unlawful inter- ference with the bargaining process.41 Finally, the record discloses that the respondents failed to reinstate upon application 15 of the strikers and forestalled such application by Jennings by previously refusing to consider his reinstatement. The respondents, with respect to most, at least, of the strikers, had as their only reason for refusing them reinstatement upon application the fact that their positions were filled by strikebreakers. With respect to a few, if the respondents had some other reason in addition, still a substantial cause of the refusal was unwillingness to displace the strikebreakers. Consequently; since the strike was caused by unfair labor practices, the refusal to reinstate the strikers was discriminatory, within the meaning of Section 8 (3) of the Act.42 Since the strike was caused by unfair labor practices and since the respondents ille- gally discriminated against the striking employees, I would order their reinstatement with back pay in the amount they would normally have earned from the date of their applications for reinstatement, or in the case of Jennings, from the date the respondents manifested their refusal to consider his reinstatement, to the date of offer of reinstatement. 41 As stated by the United State Circuit Court of Appeals for the Second Circuit in N. L. R. B. v. Remington Rand, Inc., 94 F (2d) 862, 872 (C. C. A. 2), it rested upon the tortfeasor to disentangle the consequences for which it was chargeable from those from which it was immune." See also N. L. R. B. v. Stackpole Carbon Company, 105 F. ,(2d) 167, 176 (C. C. A. 3). 42 See Matter of Manville Jenckes Corporation and Woonsocket Rayon Company and Independent Textile Union of America, 30 N L R B 382 at p 32, and cases therein cited in footnotes 74 and 75.