Amalgamated Lithographers of America

National Labor Relations Board - Board Decisions

Mar 1, 1961

130 N.L.R.B. 968 (N.L.R.B. 1961)

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the nature of the , unfair labor practices found to have been com-
mitted , the commission of similar and other unfair labor practices reasonably may
be anticipated . I shall therefore recommend that the Respondent be ordered to cease
and desist from in any manner infringing upon rights guaranteed to its employees
by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Sidney Seltzer . and Ralph Seltzer d/b/a G . & S. Electric
Company, is engaged in commerce within the meaning of Section 2 ( 6) and (7)
of the Act.
2. Industrial Workers of Allied Trades Local 199, affiliated with Confederated
Union of America, is a labor organization within the meaning of Section 2(5) of
the Act.
3. All electricians , electricians helpers, and apprentices employed by Respondent,
excluding office clericals , professional employees , and all supervisors as defined in
Section 2 ( 11) of the Act, constitute and have at all times material to this pro-
ceeding constituted a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 ( b) of the Act.
4. On June 1 , 1960, and at all times since that date , the above-named labor organi-
zation has been and now is the exclusive bargaining representative of all employees
in the above -described unit for the purposes of collective bargaining with respect to
rates of pay, wages , hours of employment , and other terms and conditions of em-
ployment by virtue of Section 9(a) of the Act.
5. By refusing on June 2 , 1960 , and at all times thereafter to bargain collectively
with the aforesaid labor organization , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
6. By threatening its employees with reprisals thereby interfering with, restrain-
ing, and coercing them in the exercise of their rights guaranteed by Section 7 of the
Act, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Amalgamated Lithographers of America and Local 78, Amal-
gamated Lithographers of America and Employing Lithog-
raphers of Greater Miami, Florida and Miami Post Company.
Cases Nos., 12-CC-87, 12-CB-376, 12-CC-89, and 12-CB-376-2.
March 1, 1961
DECISION AND ORDER
Upon unfair labor practice charges filed on March 10, 1960, by Em-
ploying Lithographers of Greater Miami, Florida, herein called the
Employing Lithographers, and on April 6, 1960, by Miami Post Com-
pany, herein called Miami Post, against Amalgamated Lithographers
of America and Local 78, Amalgamated Lithographers of America,
herein variously called the Respondents, Local 78, or the International,
the General Counsel of the National Labor Relations Board, by the
Regional Director for the Twelfth Region, issued a complaint and
amended complaints alleging that the Respondents had engaged in
and were engaging in unfair labor practices affecting commerce within
130 NLRB No. 107.
AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 969
the meaning of Sections 8(b) (3),18(b) (4) (i) and (ii) (A),2 and
2(6) and (7) of the Act. Copies of the complaint, charges, and
notice of hearing were served upon the Respondents and the Charging
Parties.
With respect to the unfair labor practices, the complaint alleged
that the Respondents had successfully induced employees to engage
in a strike and refusal to work overtime with an object of forcing
inclusion in a collective-bargaining agreement of clauses unlawful
under Section 8(e), thereby violating Section 8(b) (3) and (4) (i) and
(ii) (A). On May 19, 1960, Respondents filed an answer denying the
material allegations of the complaint and asserting affirmatively that
the Act relied on by the Board is unconstitutional.'
Between June 11 and 13, 1960, all parties entered into a stipulation
waiving a hearing before a Trial Examiner and the issuance of an
Intermediate Report and Recommended Order, and agreeing that the
Board may make findings of fact and conclusions of law on the basis
of facts contained in the stipulation, the allegations in the first and
second amendments to the complaint as to which no answers were
filed, and those portions of the original complaint which are admitted
in the answer.
On July 19, 1960, the Board approved the stipulation and trans-
ferred the case to, and continued it before, the Board. Thereafter the
Respondents and Employing Lithographers of Greater Miami,
Florida, filed briefs.' On November 21, 1960, the Board heard oral
argument in Washington, D.C., in which all parties appeared and
participated.
Upon the basis of the stipulation and the entire record in the case,
the Board makes the following :
1 Section 8(b) (3) provides :
"It shall be an unfair labor practice for a labor organization or its agents-
"(3) to refuse to bargain collectively with an employer, provided it is the repre-
sentative of his employees subject to the provisions of section 9(a)."
2 The relevant portions of Section 8(b) (4) provide :
"It shall be an unfair labor practice for a labor organization or its agents-
"(i) to engage in, or to induce or encourage any individual employed by any per-
son engaged in commerce or in an industry affecting commerce to engage in, a strike
or a refusal in the course of his employment to use, manufacture , process, transport,
or otherwise handle or work on any goods, articles , materials , or commodities or to
perform any services ; or (ii ) to threaten, coerce, or restrain any person engaged
in commerce or in an industry affecting commerce , wherein either case an object
thereof is :
"(A) forcing or requiring any employer . . . to enter into any agreement which
is prohibited by section 8(e)."
8 The contention that the Landrum -Griffin Act is unconstitutional is rejected as the
Board must assume the constitutionality of the Act it is required to administer in the
absence of a binding court decision to the contrary. Rite-Form Corset Company, Inc.,
75 NLRB 174.
& The parties have requested that the present case be considered at the same time as
the California case (130 NLRB 985) as the issues in both cases are substantially identical.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Employing Lithographers of Greater Miami, Florida, is an em-
ployer trade association whose members are engaged in lithography
and related work in and around Miami, Florida. During the 1959
calendar year, the employer-members of the association received from
sources outside the State of Florida goods and materials valued in
excess of $100,000.
Miami Post Company is engaged in operating a newspaper in
Miami, Florida. During the 1959 calendar year, it purchased and
received from sources outside the State of Florida goods and mate-
rials valued at more than $50,000.
The complaint alleges, the answer'admits, and we find, that Em-
ploying Lithographers and the Miami Post are engaged in commerce
within* the meaning of Section 2(6) and. (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Amalgamated Lithographers of America, and Local 78, Amalgam-
ated Lithographers of America, .are labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE, FACTS
On or about September 1, 1957, Respondent Local 78, with the
approval of the Respondent International, entered into a collective-
bargaininghagreement with the Employing'Lithographer's effective to
February 29, 1960. On December 29, 1959, Local 78 notified the Em-
ploying Lithographers of its desire to terminate the existing agree=
ment on the termination date and to meet for the purposes of negoti-
ating a new collective-bargaining contract. Between January 20,
1960, and April 22, 1960, representatives of the Respondents and the
Employing Lithographers met approximately 18 times in negotiating
'sessions.
Until March 7, 1960, Miami Post was a member of Employing
Lithographers. On that date it withdrew from membership and
thereafter conducted separate negotiations with the Respondents for
a new contract. Between March 7 and April 22, 1960, representatives
of Miami Post and Respondents participated in approximately five
contract negotiating sessions.
Beginning with the session of February 17, 1960, Local 78 with the
authorization and approval of the International has demanded during
the course of bargaining negotiations that Employing Lithographers
incorporate into new collective-bargaining agreements the following
AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 971
clauses referred to as "struck work," "chain shop," "right to termi-
nate," "trade shop," "refusal to handle," and "separability."
STRUCK WORK
SECTION 19. The company agrees that it will not render produc-
tion assistance to any lithographic employer, any of whose plants
is struck by any local of the Amalgamated Lithographers of
America or the International, or where members of any such
Local or the International are locked out, and accordingly agrees
that in implementation of this purpose the employees covered
. by this contract shall not be required to handle any lithographic
work farmed out directly or indirectly by such employer, other
than work which the employer hereiir customarily has performed
for the employer involved in such strike or lock-out.
CHAIN SHOP
SECTION 20. Each Company agrees that its employees shall
not be requested.to handle any work in the plant covered by this
contract if in another lithographic plant which is wholly owned
and controlled by the company or commonly owned and con-
trolled, in any part of the United States or Canada, any Local
of the Amalgamated Lithographers of America is on strike, or
members of such Local or International are locked out.
RIGHT TO TERMINATE
SECTION 21. In the event the Company requests any employee
to handle any work described in. Section 19 above, the Union, in
addition to the other rights and remedies the employees and the
Union have under this contract or the law, shall have the right in
its discretion to terminate the contract forthwith by giving written
notice to the company.
TRADE SHOP
SECTION 18. The parties agree that all the terms of this con-
tract have been negotiated on the assumption that lithographic
production work will be done under approved union wages and
conditions. In the event the Company requests an employee to
handle any lithographic production work made in any shop which
was not under contract with the Amalgamated Lithographers
of America and not authorized to use the union label of the Amal-
gamated, then the Union in its discretion by notice in writing,
may re-open the contract for negotiations as to the whole or any
part thereof. In the event of failure to agree on all terms within
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
30 days after such re-opening, the Union shall have the right to'
terminate the contract forthwith by giving written notice to the
Company.
(18a) Union trade shops must affix the Union label on all
their products before sending them to any other shop.
(18b) Finished lithographic press plates which are sent out of
any plant (unless for regraining) shall have the Union label
or the name of the plant in the plate, except that as to plates
heretofore made this may be done by otherwise attaching the
Union label or name of the plant to the plate. Any negatives or
positives sent out of a plant and not bearing the Union label
shall have the Union label or name of the plant on the proofs,
envelope, container or wrapper.
(18c) Upon request by the shop delegate the Company shall
advise him of the source of any lithographic work brought into
the plant from the outside. Such request shall not interfere with
the normal production of the plant.
REFUSAL TO HANDLE
SECTION 22. The Company agrees that it will not discharge,
discipline or discriminate against any employee because such
employee refused to handle any lithographic production work
which was made in a shop not under contract with the Amalgam-
ated Lithographers of America or because such employee refuses
to handle any struck lithographic work of the type described in
Section 20.
SEPARABILITY
(23a) It is agreed that neither Section 18 (Trade Shop) or
Section 22 (Refusal to Handle) shall be deemed effective or a
part hereof unless and until it has been declared valid by the
National Labor Relations Board or any court having jurisdic-
tion over the parties hereto. Upon being declared valid, the
parties hereto .agree to meet and negotiate these provisions and
upon reaching an agreement they shall become effective.' In the
event either of these provisions is held invalid by the National
Labor Relations Board, then the parties agree to meet to negotiate
substitute provisions therefor.
The parties were unable to agree as to the inclusion of the above
clauses in a collective-bargaining contract.
Beginning on March 2, 1960, Local 78, with the authorization and
approval of the International, induced the employees of the employer-
members of Employing Lithographers to engage in a refusal to work
5 This sentence was first included in the Respondents ' proposals of March 16, 1960. It
was not part of the "Separability" clause contained in the proposals of February 17, 1960.
AMALGAMATED LITHOGRAPHERS OF AMERICA , -ETC. 973
overtime notwithstanding the requirements of the employers' opera-
ti.bns. On several occasions, Employing Lithographers requested-Re-
spondents to lift the overtime ban, but Respondents refused to do so.
With the authorization and approval of the International, Local 78
caused the refusal to work overtime to be converted into a full strike
.by inducing employees of Miami Post on March 11, 1960, and of
employer-members of Employing Lithographers on March 17, 1960,
to walk out and refuse to perform any services for their respective em-
ployers. Several days later Respondent set up picket lines at the
struck establishments which have continued to date.
Respondents have stipulated that an object of the acts and conduct
described above was until April 22, 1960, to force or require Employ-
ing Lithographers and Miami Post to enter into contracts containing
the six disputed clauses referred to above and to compel acceptance
of the language contained in said clauses.
On April,5 and 15, 1960, the Regional Director filed separate peti-
tions with the United States District Court for the Southern District
of Florida for appropriate injunctive relief under Section 10(1). On
April 21, 1960, Respondents entered into a stipulation, approved and
signed by the district judge, wherein.Respondents agreed to, and did,
withdraw the disputed contract demands for so long as the stipula-
tion was in effect and was not modified by the court so as to permit
such demands.
Contentions of the Parties
The General Counsel contends that. the "struck . work," "chain
shop," "right to terminate," "trad shop," and "refusal to
handle" clauses are illegal in that they would require employers to
cease, or refrain from, or agree to cease or refrain from, handling,
using, selling, transporting, or otherwise dealing in the products of
other employers-or to cease doing business with other persons within
the meaning of Section 8 (e) 6 of the Act. The General Counsel also
6 Section 8 (e) states :
"It shall be an unfair labor practice for any labor organization and any employer to
enter into any contract or agreement , express or implied, whereby .such employer ceases
or refrains or agrees to cease or refrain from handling , using, selling , transporting or
otherwise dealing in any of the products of any other employer , or to cease doing business
with any other person, and any contract or agreement entered into heretofore or hereafter
containing such an agreement shall be to such extent unenforcible and void: Provided,
That nothing in this subsection (e) shall apply;to an agreement between a labor organi-
zation and an employer in the construction industry relating to the contracting or sub-
contracting of work to be done at the Site of the construction ; alteration, painting, or
repair of a building , structure , or -other work : Provided further,, That for the purposes
of this subsection ( e) and section 8(b) (4) (B ) the terms "any employer," "any person
engaged in commerce or an industry affecting commerce," and "any person " when used in
relation to the terms "any other producer, processor, or manufacturer," "any other
.employer ," or "any other person " shall not include persons in the relation of a jobber,
manufacturer , contractor , or subcontractor working on the goods or premises of the jobber
or manufacturer -orperforming parts of an integrated process of production in the apparel
and clothing industry : Provided further, That ' nothing in this Act shall prohibit the
enforcement of any agreement which is within the foregoing exception." -
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contends that the "separability" clause fails effectively to defer the
operation of the "trade shop" and "refusal to handle" clauses to
which it refers. Finally, the General Counsel contends that by in-
ducing employees employed by employer-members of the Employing
Lithographers and of Miami Post to engage in a refusal to work over-
time and a strike with an object of compelling the inclusion in a con-
tract of the six clauses in dispute, Respondents have been forcing or
requiring Employing Lithographers and Miami Post to enter into
contracts which are prohibited by Section 8 (e) of the Act, in violation
of Sections 8(b) (4) (i) and (ii) (A), and 8(b) (3) of the Act.
"Respond"ents contend that the six clauses in dispute are not violative
of Section-8 (e) of the Act, and that, accordingly, to force or require
Employing Lithographers and Miami Post by picketing or other
means to enter into contracts containing such clauses does not violate
any provisions of the Act.
Discussion
A. Alleged 8(b) (4) (i) and (ii).(A) violation
Struck Work
The "struck work" paragraph contains two parts : a general state-
ment that the contracting company will not render production assist-
ance to any employer whose plant is struck by a local of the
International, and an implementation clause which provides that in
carrying out the above employees shall not be required to handle any
lithographic work "farmed out" by such employer, other than work
which the contracting employer has customarily performed for the
struck employer.
The general statement, if standing alone, would be unlawful because
it embodies more than the "ally" doctrine 7 However, the general
statement must be read together with, and in the context of, the im-
plementation clause. According to the latter, employees are not to be,
required to handle farmed-out struck work, unless the contracting
employer has 'customarily performed such work for the struck em-
ployer. We read the two clauses, the general with the particular, as
embodying nothing more than the Board- and court-sanctioned "ally"
doctrine which Congress clearly intended to preserve.8 As so con-
strued, the "struck work" paragraph is lawful .9
7Douds v. Metropolitan Federation of Architects , etc., 75 F. Supp. 672 (S.D.N.Y.) ;
N.L.R.B. v. Business Machine and Office Appliance Mechanics Conference Board, etc.,.
228 F. 2d 553 (C.A. 2).
s Legislative History of the Labor-Management Reporting and Disclosure Act of 1959;.
U.S. Govt. Printing Office, 1959 , pp. 942 , 1007, 1389.
9 The present clause is significantly different from the "struck work " clause in the.
San Francisco case. In the latter the "struck work" clause precluded the contracting
employer from doing not only farmed out "struck work ," but also work customarily done
AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. - 975
Chain. Shop
This clause in substance recognizes the right of employees to strike
if employees in another lithographic plant "wholly owned and con-
trolled -by the company or commonly owned and controlled" are on
strike or have been locked out. In the recent Alexander Warehouse
case,10 the Board held that, where a dispute existed at one of three
geographically separated plants of an employer, picketing at the
plants were no dispute existed was lawful, primary activity. The
above clause therefore merely embodies the union's statutory right,
unless the reference to a company "commonly owned and controlled"
extends the right to strike beyond the statutory permission, that is,
to a situation where the company at which a primary strike occurs
is not a single employer together with the contracting company at
which the sympathy strike occurs. However, in the Dearborn Oil
and Gas case," the Board said : -
Generally speaking, in those unfair labor practice cases in
which the- Board and the courts have held that a legal entity
may be held for the acts of another, because both constituted a
single employer, it appeared that both. were not only subject to
common control, but also that a controlling ownership interest in
both companies was held by the same individual or group of in-
dividuals. [Emphasis supplied.]
Centralized control of labor relations is a factor frequently stressed
by the Board in finding common control of separate legal entities.
Accordingly, we construe the "chain shop" clause as saying that a
strike at the plant of the contracting employer in sympathy with a
strike at the plant 'of another company which is a separate legal en-
tity is permitted, provided that the two legal entities because of "com-
mon-control" and "ownership," as the Board uses these terms, consti-
tute a single employer within the meaning of 'the Act. Such a clause
is therefore lawful.
Trade Shop.
The "trade shop" clause recites that the contract has. been negoti-
ated "on the assumption that all lithographic production work will
be done under approved union wages and conditions." It further
states that, if the employer requests any employee to handle litho-
graphic work made in any shop not under contract with a local of the
International and authorized to, use the union label, the Union may
for the struck employer . In the present case, the clause specifically preserves the em-
ployer's right to continue to do work which the employer has customarily done for the
struck employer.
10 International Brotherhood of Teamsters , etc. (Alexander Warehouse & Sales Com-
pany), 128 NLRB 916.
n Dearborn Oil and Gas Corporation, et al., 125 NLRB 645.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reopen the contract in whole or in part and terminate it in the event
of failure to, agree. Other sections of the clause deal with affixing of
the union label to work done in union shops.
Respondents contend that the above clause contains neither an ex-
press nor an implied agreement not to use the products of another
employer. Section 8 (e) bans only "express or implied" agreements
for the prohibited objective. The term "implied" is used in law as
contrasted with "express" when the "intention in regard to the subject
matter is not manifested by explicit and direct words, but is gathered'
by implication or necessary deduction from the circumstances, the
general language, or the conduct of the parties." 12 No particular
words are necessary to establish an implied agreement. Neither will
an express disclaimer necessarily negative the existence of such an
agreement. It is all the circumstances which determine whether, not-
withstanding the attempted disguise of. language, an agreement has
in fact been made. When a clause reads that contract terms have
been negotiated on the assumption that all work will be done under
union conditions, and that in the event an employer requests an em-
ployee to handle work done in a nonunion shop, the Union will have
the right to reopen and terminate the contract, and further contains
regulations as to the use of the union label on all products, the effect
is precisely the same as if the employer had agreed in so many words
that he would not handle nonunion products, which is prohibited by
Section 8(e). Realistically no employer would undertake to handle
such work if to do so would confront him with the possibility that his
entire contract would be reopened for renegotiations.13 So far as the
employer is concerned he would be subjected to the same sanction
whether he expressly "agreed" not to handle nonunion work, or
whether he submitted to the language in the proposed "trade shop"
clause. If, on the happening of a certain event, precisely the same
legal consequences occur, it is reasonable to infer that it is because of
the violation of the same or a similar contractural undertaking.
Moreover, Congress was intent upon outlawing "hot cargo" clauses no
matter how disguised. Probably no language can be explicit enough
to reach in advance every possible subterfuge of resourceful parties.
Nevertheless, we believe that in using the term "implied" in Section
8(e) Congress meant to reach every device which, fairly considered,
is tantamount to an agreement that the contracting employer will
not handle the products of another employer or cease doing businesss
with another person. We find that the "trade shop" clause contains
an "implied" agreement not to handle nonunion products.
12 Black 's Law Dictionary (4th ed. 1951 ), p. 888. See also 12 Am. Jur. 499.
"Congress was aware of the coercive effect of a reopening clause. See Leg. Inst. op.
off footnote 4 at p. 1708.
AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 977
Respondents offered to prove that the "trade shop" clause was neces-
sary because a change in the method of doing business by the employer
could have such an impact upon the welfare of the union's member-
ship as to require, from a legitimate union viewpoint, the considera-
tion of new contractual arrangements. We reject this offer of proof.
Economic necessity cannot justify violation of the Act.14 Congress
did recognize that certain industries-construction, clothing, and
apparel-had special problems which justified their exemption from
the operations of Section 8(e) in certain respects. But, although
Congress was aware of the existence of "hot cargo" clauses in the
printing industry, it made no exemption for that industry.16 What
Congress chose not to, the Board cannot, do. Moreover, although
Respondents contend that the purpose of the "trade shop" clause is
to protect various union welfare funds from possible financial jeop-
ardy resulting from change in methods of operation, the reopening
clause is not limited to such situations but gives the Respondents
the right to reopen and terminate the contract as to all terms and
conditions of employment and for every reason.
Accordingly, we find that the proposed "trade shop" clause if
adopted would violate Section 8 (e) of the Act.
Right To Terminate and Refusal To Handle
These clauses are intended to implement the "struck work" and the
"chain shop" clauses respectively. The "right to terminate" clause
provides that the Union shall have the right to terminate the contract
forthwith in the event the employer requests an employee to handle
"struck work" as defined. The "refusal to handle" clause states that
the employer will not discharge or discipline an employee for refusal
to handle lithographic production work which was made in a non-
union shop or because the employee refused to handle struck work
of the kind described in the "chain shop" clause. As we have found
that the "struck work" clause is lawful, the "right to terminate" clause
intended to give the Union a remedy for the breach of the former is
equally lawful. However, the "refusal to handle" clause is unlawful
because it is intended to implement not only the lawful "chain shop"
clause but also the unlawful "trade shop" clause.
Separability
This clause provides that neither the "trade shop" nor the "refusal
to handle" clauses shall be deemed effective until they have been de-
11 N.L.R.B. v. National Maritime Union of America, et at. (The Texas Company), 4175
F. 2d 686, 689-690 (C.A. 2), cert. denied 338 U.S. 954, rehearing denied 339 *U.S. 926.
u Leg. list. op. cit . footnote 4 at p. 1581.
597254---61-vol. 130-63
978 DECISIONS OF- NATIONAL LABOR: RELATIONS' BOARD
.clared valid by the Board or an appropriate court. It also provides
,for further negotiation. if the .clauses are declared valid or. invalid.
Section 8 (b) (4) (A) prohibits strikes for the purpose of requiring
an employer "to'enter' into any agreement which is prohibited by
section 8(e)." , We have found above that the. "trade shop". clause
:would be unlawful if agreed-to'by, the parties. Accordingly; a strike
for the purpose, of 'forcing the einployer'to agree. to such a'provision. is
unlawful under Section, 8(b) (4) (A). The. strike is not made lawful
.by the "separability" clause. We are' not required to decide whether
the clause in. question- would, effectively defer the,operation of the
"trade shop" and "refusal to handle" clauses, if.the parties:agreed to
.them. The complaint in this case alleges a violation of -Section 8 (b)
-(4) (A) and not of 8(e). Whatever the ultimate, effect of the "sepa-
rability" clause, the fact is that the Respondents did strike to compel
the Charging Parties to agree to provisions in a contract which are
prohibited by Section 8 (e).
Accordingly, we find that.by inducing employees- of the employer
members of Employing Lithographers and of. Miami Post, to engage
in a refusal to work overtime and : iri a. full strike with an object.- of
compelling inclusion in any collective-bargaining agreement of A he
"trade shop" and "refusal to handle" clauses set out above, which are
unlawful under Section 8(e), -Respondents violated Section 8(b) (4)
(i) and (ii) (A) of the Act. i , .. .
B. -8(b) (3)' violation '
Appropriate Units
The complaint alleges, the. answer admits, and we find,.that the
following units are appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act :
(a) All lithographic (offset) production employees employed by
all employer-members of Employing .Lithographers,. excluding all
other employees, office clerical employees, .guards; and supervisors as
defined in the Act.
(b) All lithographic (offset) production employees .employed by
Miami Post, excluding all other employees, office clerical employees,
guards, and supervisors as defined in the Act.
Majority Representation
The complaint alleges, the answer admits, and we find, that since
1956 in the case of the Employing Lithographers, and since March
7'.1960, in the case of Miami Post, Respondent Local 78.'has been
the majority representative'of employees in the aforesaid appropriate
AMALGAMATED LITHOGRAPHERS -OF AMERICA, ETC. - 979,
units,' and has been recognized as such representative by the Employ-
ing'Lithographers,and Miami-Post 'for all purposes of collective bar=:
gaining with respect'to rates of pay, wages, hours of employment,
and other conditions of employment.
Refusal. To Bargain
For the reasons stated in the .San Francisco Amalgamated Lithog-
raphers case," decided this -day, we find that by refusing to work'
overtime and by striking for the purpose of forcing, the inclusion of
the "trade, shop", and. "refusal to handle" clauses in any collective-'
bargaining agreement Respondents violated Section 8 (b) (3) 'of 'the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES. ON COMMERCE
The activities of the Respondents set forth .above have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among
the several States, and tend.to lead to.labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE , REMEDY
Having found that the- Respondents have engaged in unfair. labor:
practices, we shall order them to cease and desist therefrom and to take
certain affirmative action designed to effectuate, the policies. of the,, Act.'
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
11. Employing Lithographers of Greater - Miami, Florida, and
Miami Post Company are engaged'in commerce within the meaning.of
Section 2(6) and (7) of the Act.'
2. Amalgamated Lithographers of America; and Local 78, Amal
gamated Lithographers of America, are labor organizations within the
meaning of Section 2(5) of the Act.
3: All lithographic (offset) production employees employed by em-
ployer-members of Employing Lithographers of Greater Miami,
Florida, excluding all other' employees, office clerical- employees,,
guards, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b), of the Act. '
26 Amalgamated Lithographera of America -(Ind.) and Local No. 17 of the Amalgamated.
Lithographers of America ( Ind.) (The Employing Lithographers , a Division of the Graphic
Arta Employers Association et al. ), 130 NLRB 985.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. All lithographic (offset) production employees employed by
Miami Post Company, excluding all other employees, office clerical
employees, guards, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
5. Local 78, Amalgamated Lithographers of America, has been at
all times material herein, and is, the exclusive representative of all
employees in the aforesaid appropriate units for the purposes of col-
lective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment.
6. By refusing to work overtime and by striking for the purpose
of forcing inclusion of the "trade shop" and "refusal to handle"
clauses in any collective-bargaining agreement, Respondents have vio-
lated Section 8 (b) (3) of the Act.
7. By engaging in, and inducing and encouraging employees of
employer-members of Employing Lithographers of Greater Miami,
Florida, and of Miami Post Company to engage in, a refusal to work
overtime and in a strike, and by threatening, coercing, or restraining
the aforesaid employers by means of a refusal to work overtime, a
strike, and picketing, for the purpose in both cases of forcing the'
aforesaid employers to enter into an agreement containing the "trade
shop" and "refusal to handle" clauses set out above, which are pro-
hibited by Section 8 (e), Respondents have violated Section 8 (b) (4) (i)
and (ii) (A) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the Act, as amended, the National Labor Relations Board hereby
orders that Respondents, Amalgamated Lithographers of America,
and Local 78, Amalgamated Lithographers of America, their officers,
representatives, successors, agents, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Employing Lithogra-
phers of Greater Miami, Florida, and with Miami Post Company, as
the bargaining representative of employees in the previously stated
appropriate units, by refusing to work overtime and by striking for
the purpose of forcing inclusion of the "trade shop" and. "refusal to
handle" clauses in any collective bargaining agreement.
(b) Engaging in, or inducing or encouraging employees of em-
ployer-members of Employing Lithographers of Greater Miami,
Florida., and of Miami Post Company, to engage in, a. strike or refusal
AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 981
to work overtime, or threatening, coercing, or restraining the aforesaid
employer association and company by a strike, refusal to work over-
time, and picketing, where in either case an object thereof is to force
or require Employing Lithographers of Greater Miami, Florida, and
Miami Post Company to enter into any agreement which is prohibited
by Section 8(e).
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in Respondents' business offices,
meeting halls, and places where notices to members are customarily
posted, copies of the notice attached hereto marked "Appendix A." 17
Copies of said notice, to be furnished by the Regional Director for the
Twelfth Region, shall, after being duly signed by official representa-
tives of Respondents, be posted by.-Respondents immediately upon
receipt thereof and be maintained by them for 60 consecutive days
thereafter. Reasonable steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Furnish to the Regional Director for the Twelfth Region signed
.copies of the aforementioned notice for posting by members of the
Employing Lithographers of Greater Miami, Florida, and by Miami
Post Company, if the companies agree, in places where notices to em-
ployees are customarily posted. Copies of said notice, to be furnished
by the Regional Director, shall, after being signed by Respondents, as
indicated, be forthwith returned to the Regional Director for disposi-
tion by him.
(c) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Decision and Order, of the
steps taken to comply herewith.
MEMBERS RODGERS and JENKINS, dhssentmg in part :
We do not agree with our colleagues' holding that Respondents'
proposed "struck work" and "chain shop" clauses are lawful under
Section 8 (e) of the Act. Nor can we agree that Respondents' pro-
posed "right to terminate" and "refusal to handle" clauses, insofar as
they implement the "struck work" and "chain shop" clauses, are lawful.
Our colleagues have arrived at the conclusion that the struck work
and chain shop clauses are valid by giving them the narrowest con-
struction possible, and by reading into the clauses nonexistent limita-
tions. The former clause is supposed by. them to be.limited to "struck
work" as that term is defined in Board decisions; the latter clause is
supposed by them to be limited to typical "single employer" situations.
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for'the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
982 DECISIONS OF - NATIONAL LABOR RELATIONS BOARD
These constructions; in our opinion; torture the language in the pro-
posed: clauses. -
The first part ' of the struck work clause commits the signatory em-
ployer to refrain from rendering "production assistance" to "any"
-lithographic employer in difficulty with the Union. The second part
provides that, "in implementation of this purpose," employees will
not be required- to handle work ""farmed out 'directly or indirectly"-
except that employees may be required to continue performing work
which the signatory employer -"customarily has performed" for the
struck employer. Our colleagues take pains to state that both. pro-
visions of the struck work clause-must be read together. But then, in
the'-guise of considering the "context of the implementation clause,"
they construe the, entire struck clause as if only the implementation
language existed, and they conclude that the only limitation on the
`signatory's freedom to do business with other persons is contained in
the implementing language. This, the plain language of the proposed
clause reveals, is not the case. - -
It , is true that, under the proposed language of the struck work
-clause, a signatory may continue to do work which it has customarily
-performed for a struck employer. But it is also true, under the all-
embracive language of the provision, that if, during a strike, the
-signatory is asked by an employer "any of whose plants is struck" to
do certain work, the signatory would be required to refrain from doing
it-whether or not the work in:question was produced by the plant
'immediately concerned in- the - strike. Similarly, -under the broad
sweep of the phrase "farmed out directly or indirectly," the signatory
would"be required to refrain.from doing work of a kind which, before
the onset-of the strike, the struck employer himself had not performed,
but instead had given to a third person-to perform.
So construed and applied,- Respondents' proposed struck work clause
would extend the so-called ally doctrine.far beyond the point to which
,it has been extended in the past, either by this Board or by the courts.
For, under existing precedent, an otherwise neutral employer or per-
son may become an "ally" of a struck employer only by undertaking,
by arrangement with the -struck employer, to perform work which
would, but for the strike, have been performed by the striking em-
ployees themselves. To say, then, as our colleagues do, that the clause
in -question embodies nothing more than the "sanctioned `ally' doc-
trine," is to say something which is highly inaccurate.
As to the chain shop clause, we cannot find, as the majority has, that
this clause is-so worded as to apply only to "single. employer" situa-
tions. Common ownership and control-the descriptive - language
used in the clause-are not by themselves` sufficient factors' warranting
a.finding, of a single-employer, status,. particularly -where, as here,.,no
AMALGAMATED LITHOGRAPHERS OF AMERICA,'ETC.. 983
minimum extent, of 'common 'ownership' and control is, specified. 'A'
number of other factors must' be taken into account. For 'example,
in Alexandria Warehouse d Sales Company, 128 NLRB 916, a case
relied upon by the majority, the Board emphasized the common gen-
eral supervision, the centralized. purchasing of supplies, and the in-
tegration of operations, and there, unlike what_is within the contem-
plation of the chain shop clause, all the plants involved were part of
the same business entity.18
Our colleagues apparently recognize the deficiencies in the chain
shop clause; or they would have no need to -engraft upon the clause
their definition of a "single: employer." That our colleagues have
oversimplified and vastly overstated the rule for determining whether
another person, employer, or plant. may together with a 'signatory
to the. proposed agreement constitute a "single employer" within the
meaning of Board decisions relating to Section 8(b) (4), is graphi-
cally demonstrated by the Roy and Bachman Machine cases.19 In
these cases, in which Member Rodgers dissented and Member Jenkins
did not participate; a majority of the Board found that apparently
separate . employing entities were a single employer, relying on
"common ownership and control." In each case the Board was
reversed by the circuit court of appeals, in opinions, which emphat-
ically rejected the doctrine here advanced by ' our colleagues a9
We would not rewrite the Respondents' chain shop clause` for them
so as to make it legal, . but would. construe. it to mean' what it says-
that it would apply to 'all situations ' where common ownership and
control exist irrespective of whether the involved entities constitute
a single employer. As the clause thus seeks to permit activity pro-
scribed by the Act, we would find it unlawful.
It follows' that to the extent that the' proposed refusal to handle
clause applies to the struck work and chain shop clauses, it, too, runs
afoul of Section 8.(e).. The same is true, of course, with respect to the,
proposed right to terminate clause. In the latter connection, we
note, parenthetically, that the right to terminate clause' is_ applicable
where the "Company. requests any employee to handle any work
described in Section 19 above [the struck work clause]." [Emphasis
supplied.] This clearly makes the clause applicable not only,-as our
colleagues construe it, where struck work, is concerned, but, also in
78 Contrary to the manner in which . our colleagues now. emphasize the' geographical,
separation of the several plants in Alexandria Warehouse, supra, the decision in that
case emphasized their "proximity to and integration with" the warehouse at which the
dispute arose.
19J. G. Roy and Sons Company, 118 NLRB 286; Bachman Machine Company, 121
NLRB 1229.
40 J. C. Roy and Sons Company v. N.L.R.B., 251 F. 2d 771 (C.A. 1) ; Bachman Machine
Company, a corporation v. N.L.R.B., 266 F. 2d 599 (C.A. 8).
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all the other situations referred to in the struck work clause itself
including the case of work that is "customarily" performed.
APPENDIX A
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF EMPLOYER-
MEMBERS OF EMPLOYING LITHOGRAPHERS OF GREATER MIAMI, FLOR-
IDA, AND OF MIAMI POST COMPANY
Pursuant to a'Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE WILL NOT refuse to bargain collectively with Employing
Lithographers of Greater Miami, Florida, and with Miami Post
Company, as the bargaining representative of employees in the
respective appropriate units, by refusing to work overtime and
by striking for the purpose of forcing inclusion of the "trade
shop" and "refusal to handle" .clauses in any collective-
bargaining agreement.
WE WILL NOT engage in, or induce or encourage employees of
employer-members of Employing Lithographers of Greater Mi-
ami, Florida, and of Miami Post Company to engage in, a strike
or refusal to work overtime, or threaten, coerce, or restrain the-
aforesaid employer-association and company by a strike, refusal
to work overtime, and by picketing, where in either case an object
thereof is'to force'or require the aforesaid employer-association
and company to enter into any agreement which is prohibited by
Section 8 (e) of the Act.
AMALGAMATED LITHOGRAPHERS OF AMERICA,
Labor Organization.
Dated---------------- By------------------------------------
(Representative ) ( Title)
LOCAL 78, AMALGAMATED LITHOGRAPHERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material-