Commercial Printing Co.

National Labor Relations Board - Board Decisions

Jun 3, 1952

99 N.L.R.B. 469 (N.L.R.B. 1952)

COMMERCIAL PRINTING COMPANY
Appendix
NOTICE To ALL EMPLOYEES
469
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with the UPHOLSTERER'S INTER-
NATIONAL UNION OF NORTH AMERICA, LOCAL No. 15, A. F. OF L., as the exclusive
representative of all our employees in the unit appropriate for collective
bargaining, described below, with respect to labor disputes, grievances, rates
of pay, wages, hours of work, disability insurance, and other conditions of
employment, and, if an understanding is reached, embody such understand-
ing in a signed agreement. The unit appropriate for a collective bargain is:
All of the production and maintenance employees at our Alhambra,
California, plant, exclusive of office clerical employees, the working
foremen of the fabrication and assembly department, trimming room,
and shipping and receiving department, respectively, and all other
supervisors as defined in the Act.
WE WILL NOT take any unilateral action in derogation of the above-named
union's right to act as the exclusive representative of our employees in the
above-described unit, with respect to any matter properly subject to the
collective bargaining process.
WE WILL NOT interfere, in any other manner, with the efforts of the union
to bargain collectively with us, in regard to the above-mentioned matters,
as the exclusive representative of our employees in the appropriate unit
described above.
All of our employees are free to become, remain, or refrain from becoming
members of the above-named union, or any other labor organization, except to
the extent that their right to refrain may be affected by a lawful agreement
which requires membership in a labor organization as a condition of employment.
EDWARD SHANNON, C. W. SHANNON,
AND ARTHUR F. SIMPSON, JR., a
partnership, d/b/a SHANNON &
SIMPSON CASKET COMPANY,
Employer.
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.
,COMMERCIAL PRINTING COMPANY and PINE BLUFF PRINTING PRESS-
MEN AND ASSISTANTS UNION No. 438, INTERNATIONAL PRINTING
PRESSMEN AND ASSISTANTS UNION OF NORTH AMERICA, AFL. Case
No. 32-CA-183. June 3, 1952
Decision and Order
On December 7, 1951, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
99 NLRB No. 80.
215232--53-31
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had not engaged- in- unfair labor practices in viola-
tion of Section 8 (a) (1) and. Section 8 (a) (5)1 of the Act, and
recommending that the complaint be dismissed in its entirety. There-
after the General Counsel filed exceptions to the findings in the Inter-
mediate Report and a supporting brief. The Respondent also filed
exceptions 2 to certain portions of the Intermediate Report and a
supporting brief. .,
Pursuant to the provisions of Section, 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a ,three-member panel [Members Houston, Mur-
dock, and Styles].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.-
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the briefs and exceptions, and the entire record
in this case. Inasmuch as the record does not establish bad faith on
the part of the Respondent in discharging its obligation to bargain
collectively, the Board hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with respect to the 8 (a) (5)
allegation of the complaint. It likewise' adopts his findings, conclu-
sions, and recommendations with respect to the 8 (a) (1) allegation.
Order
IT IS HEREBY ORDERED that the complaint, in its entirety, be and it
hereby is, dismissed.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by Pine Bluff Printing Pressmen and Assistants
Union No. 438, International Pressmen and Assistants Union of North America,
AFL, herein called the Union, the General Counsel of the National Labor Rela
tions Board, herein respectively called the General Counsel and the Board, by
the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued
his complaint dated August 31, 1951, against Commercial Printing Company,
herein called the Respondent, alleging that the Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and 8 (a) (5) and Section 2 (6) and (7) of the National
Labor Relations Act as amended, 61 Stat. 136, herein called the Act. A copy
of the charge was duly served upon the Respondent and copies of the complaint
and notice of hearing were duly served upon the Respondent and the Union.
With respect to unfair labor practices the complaint alleges in substance
that the Respondent: (1) from about December 20, 1950, has refused to bargain
i We note a typographical error in the Intermediate Report, Conclusions of Law, finding
no 8 (a ) ( 3) rather than no 8 (a ) ( 5) violation. .
2 In view of its decision herein dismissing the complaint in its entirety , the Board deems
it unnecessary to discuss exceptions filed by the Respondent.
COMMERCIAL PRINTING COMPANY 471
collectively with the Union as the exclusive representative of all employees in
an appropriate unit; (2) from on or about March 15, 1951, interrogated em-
ployees for the purpose of finding out whether or not they were going to go
on strike if a strike were called by the Union and promised employees that if
they would not go out on the strike called by the Union that they would be taken
care of by the Company; and (3) by such conduct interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed by Section 7
of the'Act.
The Respondent filed an answer in which it denied having engaged in the
alleged unfair labor practice and in which it set up certain affirmative defenses.
Pursuant to notice a hearing was held in Pine Bluff, Arkansas, on September
24, 25, 26, 27, 28, and 29, 1951, before Stephen S. Bean, the undersigned duly
designated Trial Examiner. All parties were represented at and participated
in the hearing where full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded them'.
At the conclusion of the hearing a joint motion to conform the pleadings to the
proof in minor matters was granted.' Decision was reserved on Respondent's
motion to dismiss the complaint. This motion is disposed of in accordance with
findings and conclusions made and reached in this Intermediate Report. All
parties waived oral argument. On November 8, 1951, Respondent filed -a brief
which has been considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Commercial Printing Company is an Arkansas corporation, having its prin-
cipal place of business at Pine Bluff, Arkansas, where it is engaged in the opera-
tion of a printing plant and the publication of a newspaper called "The Pine
Bluff Commercial." Respondent, in the course and conduct of its business in
Arkansas, annually purchases raw materials consisting principally of news-
print, ink, metal, comic and feature sections, and other supplies in an amount
in excess of $100,000, approximately 90 percent of which is received by it from
outside the State of Arkansas. Respondent annually carries news releases origi-
nated by the Associated Press and the United Press and other international news
gathering organizations and carries advertising of national organizations en-
gaged in interstate commerce of a value in excess of $100,000. Respondent
annually sells material manufactured at its printing plant in an amount in
excess of $100,000, of which amount in excess of 10 percent is shipped by Re-
I During the hearing the following motion made by the General Counsel to amend para-
graph 4 of the complaint as follows was allowed without objection : "All web-pressmen and
apprentices, all stereotypers and apprentices in the newspaper department, and all cylinder
pressmen, platen pressmen, offset pressmen, combination plate makers and camera men,
including apprentices, and all photographers in commercial printing (job printing) de-
partments, exclusive of all supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9 (a) of
the Act."
Without objections on the part of the General Counsel, Respondent's motions made at
the hearing to amend section 7 and the last paragraph of section 8 of its answer to read
as follows were allowed: (1) "Respondent denies that on or about December 20, 1950,
the Union requested to bargain with it as the exclusive representative of its employees in
the unit described in paragraph 4 of the complaint for the purposes of collective bargain-
ing and to meet and bargain with it collectively with respect to rates of pay, wages,
hours of employment and other conditions of employment" ; (2) "Respondent shows fur-
ther that in calling said strike the Union, hereinabove described,, failed or refused to
comply with the provisions of Section 8 (d) (1) and (3) of the Act."
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to and through States of the United States other than the State of
Arkansas.
Respondent concedes that it Is engaged in commerce within the meaning of
the Act and I so find.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
M. THE UNFAIR LABOR PRACTICES
A. Synopsis of events
Uollective bargaining agreements between Respondent and the Union were first
executed in 1940. The latest agreement, prior to that with which this case is
concerned, covered a period from March 25, 1950, through March 24, 1951.
Negotiations seeking to procure a new and revised contract effective March 25,
1951, providing greaten benefits were initiated by the Union on December 22,
1950. Sixteen bargaining sessions were held between that date and September
3, 1951. No agreement was reached. A strike took place on March 29, 1951.
By March 26, 1951, the Union's proposals were as follows: (1) Reduction from
a 40-hour to a 371/2-hour week and from an 8-hour to a 71/2-hour day; (2)
employment of additional operators to man a new press acquired by Respondent
since March 1950; (3) a 10 percent raise; (4) an increase from regular time
to time and one-half for the printing of dodgers; (5) a reduction from an 8-hour
to a 5-hour workday on the Saturday night shift; and (6) the continued in-
clusion of a union-security provision in the new contract sought to be negotiated.'
During the course of negotiations Respondent objected to the continuance of
the inclusion of the union-security clause on the basis that it provided for a
closed shop in violation of both the Taft-Hartley Law and Act 101 of the Acts
2 Commencing at least as early as 1948 the following clauses had appeared in all annual
contracts: (1) "All work performed in these departments mentioned above in this con-
tract shall be done by members of Local Pine Bluff Printing Pressmens and Assistants
Union of North America"; (2) "Anyone making application for employment in any
department mentioned in this contract must apply through the Secretary of the Local
Union, said secretary to make the necessary contact with the proper authorities for
action on his application. By proper authorization is meant the foreman or manage-
pent"; (3) "Union agrees to.use every effort to supply employers with competent Union
pressmen and' assistants on demand. In case of its inability to do so, said employer shall
have the right to employ other pressmen and feeders and all other employees covered
under this contract. If the party of the first part under this clause employs a pressman
or assistant not a member of the Union, who is competent, capable and reliable (The
Executive Board of No. 438 and the Employer are to be judges of his or her competency),
the Union agrees to furnish said men or women a card and allow either to remain in
the employ of said party of the first part, provided no law of either the International or
Local Unions has been violated" ; and (4) "It is not the intention or purpose of either
of the parties hereto to make any provision in this agreement which is in contravention
of any State or Federal Law, and, if it shall, be found that any agreement contained
herein violates any law, such agreement shall be null and void."
These four quoted clauses in substance continued to remain in the contracts which
weie renewed in 1949 and in 1950. Slight variations appear, in the 1950 contract, to
wit ; respecting the Union' s agreement to use effort to supply union pressmen and
assistants the latter contract added "If the new employee is not a member of the Union
said employee when judged competent shall have sixty (60) days in which to make
application for the Union" ; and the "savings clause" was changed to read "In the event
any section or portion of this contract be held invalid or in conflict with any State or
Federal Law by any court of competent jurisdiction, such section or portion shall there-
upon be inoperative and of no further force and effect, but such decision shall not affect
the remaining sections or portions hereof and the same shall continue in full force and
-effect."
COMMERCIAL PRINTING COMPANY 473
of the General Assembly of the State of Arkansas of 1947 and Amendment No.
34 to the Constitution of the State of Arkansas, attached to this Report and
marked Appendix A.
The March 26, 1951, proposals were reiterated in a letter from the Union dated
April 2, 1951.
In addition to making these six proposals, the Union had on February 23, 1951,
informed Respondent that International Stereotypqrs and Electrotypers Union,
herein called the Stereotypers, would claim jurisdiction for the stereotyper who
had been included in the contracts concluded by Respondent and the Union
annually since 1940 with the exception of the years 1944 or 1945 and 1948.
On May 16, 1951, Respondent made the concessions of agreeing to reduce
from an 8-hour to a 6-hour workday the Saturday night shift, to increase paid
vacation allowances, and renewed its previous offer to increase the number of
combination web-pressmen and stereotypers from six to seven. On this date
the Company also proposed the incorporation in a contract of certain new pro-
visions' in substitution for the union-security clauses appearing in earlier
contracts.
By May 17 and May 18, 1951, the Union and the Stereotypers made the con-
cessions of agreeing to temper their original demand that the number of com-
bination web-pressmen and stereotypers to be employed should total 17 as re-
quired by their respective bylaws and their subsequent modified demand that
the total should be 11, by proposing to accept a manning of 8 combination web-
pressmen and stereotypers. They accepted Respondent's proposals reducing
the number of hours constituting the workday on the Saturday night shift front
8 to 6 hours and offered to accept a 38-hour workweek.
The Union and the Stereotypers also expressed a willingness, in view of the
Company's concession concerning vacations, to compromise to some extent
respecting their original demands for a 10-percent wage increase and to make
some compromise regarding their proposal that time and one-half should be
paid for printing dodgers.
They further asserted that they were willing to assist the Company in drafting
a clause along the lines appearing in other printing crafts' agreements in the
State of Arkansas, in substitution for the union-security clauses appearing in
former contracts between the Union and Respondent.'
8 These proposals were as follows :
The Company and the Union agree that there shall be no discrimination against
any employee in the bargaining unit described above because of his membership or
nonmembership in any labor organization.
The right to hire, promote, discharge or discipline for cause, and to maintain
discipline ahd the efficiency of the employee, to adopt and enforce working rules, are
solely responsibilities of the Company, except that it agrees that no employee shall
be discriminated against because of his union membership, and that such right is
subject to the terms of this agreement. The products to be manufactured, the
schedule of production, the hours to be worked each week, the assignment of work,
the methods , processes and means of management and production are solely and
exclusively functions and responsibilities of the Company. These functions are illus-
trative, and are not exclusive.
The Union recognizes the Company's right to employ a foreman or mechanical
superintendent who has the authority in the interest of the employer to hire, dis-
charge, suspend , lay off, recall , promote, assign rewards or discipline other employees
or have the responsibility to direct them.
4 By stipulation entered into between the General Counsel and the Union, there was
offered and received in evidence a copy of a contract between the Union and the Arkansas
Democrat of Little Rock, Arkansas, section 2 of which is as follows :
The party of the first part agrees to employ pressmen and pressmen apprentices
under the conditions and at the scale of wages stipulated herein. The Union agrees
to furnish the number of pressmen and apprentices which the Publisher may call
upon the Union to supply, and the Publisher agrees to hire all qualified pressmen,
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 17, 1951, the Union was unwilling to accept that part of the particular
provision submitted by Respondent by way of replacing the union-security
clauses ( see footnote 3) reading as follows :
The products to be manufactured, the schedule of production, the hours
to be worked each week, the assignment of work, the methods, processes and
means of management and production , are solely and exclusively functions
and responsibilities of the Company. These functions are illustrative, and
are not exclusive.
Three and one-half months later, on September 3, 1951, the Union informed
Respondent that it would accept a provision providing that the functions referred
to as illustrative and not exclusive in the above-quoted clause, should be subject
to arbitration or a grievance committee rather than the prerogative of manage-
ment . The Union also accepted the proposal by Respondent that it should
recognize Respondent's right to employ supervisors having authority to hire,
discharge , and otherwise deal with control and direct employees 6
The parties were never able completely to agree and on September 3, 1951,
Respondent notified the Union and the Stereotypers it was raising a question of
representation and the meeting was adjourned.
and apprentices furnished in response to such calls so far as the Publisher may
lawfully hire such pressmen and apprentices under State and Federal Laws in force
at the times such prospective employees are made available for employment by the
Publisher. It is agreed that all men furnished by the Union to the employer to cover
regular situations shall be eligible to work at straight time rates . Nothing in this
agreement shall obligate the office to hire men when there is no work to be performed
nor shall any payment be made for any day or days on which no paper is published.
The sole right of the Publisher to determine the specific days on which publication
shall be maintained shall not be open to question and the Publisher shall be the
judge of the number of men required . This contract and scale of wages applies only
to newspaper web-pressmen and their regular apprentices.
By similar stipulation there was also offered and received in evidence a copy of a contract
between the Union and Southwestern Publishing Company, a newspaper of Fort Smith,
Arkansas , sections II and IX of which are as follows :
The Union agrees to furnish competent workmen at regular straight time rates,
and its members agree to comply with the conditions enumerated herein during
the life of this agreement . The Publisher agrees to employ members of the Union
to cover all positions which this contract contemplates , including that of Foremen.
If upon twelve (12) hours notice, the Union fails to supply the number of competent
men called for by the Publisher , at regular straight time rates , other competent men
may be employed by the Publisher temporarily until the Union is able to furnish
the number of competent men required , at regular straight time rates.
The Publisher reserves the right to select the Foreman and name Man -in-Charge.
(1) When more than one press is in operation , the Foreman shall be considered a
part of the crews.
(2) The Foreman of the Press Room shall be a practical Webb Pressman and a
member of the Fort Smith Printing Pressmen and Assistant 's Union number 145.
He shall be the judge of competency and shall hire, discharge , supervise and govern
all employees, give out all the situations , and assign all men to their positions in
the Press Room of which he is Foreman , in accordance with the terms of this agree-
ment. In event of a disagreement in regard to the Foreman 's orders, which cannot
be adjusted amicably by the Publisher and employee or employees concerned, said
disagreement shall be submitted to a Standing Committee provided elsewhere in
this agreement . Pending a decision of the disagreement , the Foreman 's orders shall
be followed as given. The Union shall not discipline the Foreman for carrying out
the instructions of the Publisher or his representative as authorized by this contract
and scale. Employees may protest against the Foreman's action but if the Foreman,
after careful consideration decides his actions warranted by this contract , he need
not change conditions unless directed to do so by the Publisher or by decision of the
Joint Standing Committee.
s Although the Union 's representative in his testimony mentioned the first article in
Respondent 's proposed contract , I find from its context the testimony was intended to
refer to the last paragraph of proposal of May 16, 1951.
COMMERCIAL PRINTING COMPANY 475
About a week before March 29, 1951, Armistead Freeman, Respondent's
vice president, was stopped during his rounds of the plant by Thurman Faulkner,
an apprentice offset pressman and shown a broken press part. Faulkner
stated in substance that it would be unfortunate should the press break down
at - ,a ,time when labor relations were strained and the conversation turned to
the question of how negotiations toward arriving at a collective bargaining
contract between the Union and Respondent were progressing. When Freeman
stated that the parties were still meeting and trying to agree, Faulkner indi-
cated that Freeman should realize there might be a strike if no agreement
eventuated. Freeman expressed the hope that there would be no strike and
asked Faulkner what his position would be if the employees should strike.
Faulkner told Freeman that he would have no choice other than to go out
with the other employees. Freeman replied that there would be no hard feelings
if Faulkner should strike with the other men but he wanted him to know
that he would be taken care of if he should remain and work. About March
26, 1951, Raymond Hale, the sole combination cameraman and platemaker
employed by Respondent, asked Freeman if he could take his 1950 vacation
then. Freeman told Hale he and Respondent's assistant secretary and manager
were exceedingly busy with union negotiations, that he did not know how
much work there was to be performed and could not let him take off at that
time. Previously about March 20, 1951, Hale had asked Freeman how negotia-
tions were coming along. Freeman stated the parties were meeting and trying
to agree on the terms of a contract. The question arose as to what would happen
if a strike occurred. Freeman asked Hale what he was going to do if they
did have a strike. Hale stated he would have to go out with the others. Free-
man then asked Hale if he could not join the photoengravers union and thereby
become disassociated from the Union in case a strike should take place. Hale
replied that it was too late and he could not do so because he was not a
photoengraver.
B. Conclusions
The Alleged 8 (a) (5) Violations
The Union desired to amend the 1950-51 agreement in the first five of the six
respects already mentioned. The Respondent desired to eliminate from a new
agreement any clause providing for a union or a closed shop. All of these
matters= were fully discussed during the course of the 16 bargaining sessions,
both before and after, and the Union called the strike on March 29, 1951.
In my opinion, Respondent's refusal to accept the Urion's proposed revisions
after full and open discussion does not demonstrate a disregard of its statu-
tory obligation. The Act does not compel either party to agree to the other
proposals. It only requires the parties to confer in good faith. The Respond-
ent repeatedly pointed out that the reductions in working hours, the increases
in pay, and the adding of additional employees sought by the Union would
involve an expense it would be unable to bear. The evidence demonstrated that
acquiescense in the Union's proposals would have cost Respondent $6,600 for
the first 3 months of 1951 and that for the same period the profits, without
considering any increased expenses , amounted to only $2,000. I find that
Respondent made a genuine and sincere effort to persuade the Union to accept
its position. Of course the validity of its position that it could not meet the
additional expense involved in an acceptance of the Union's proposals depended
upon the existence of facts peculiarly within the Respondent's knowledge.
Respondents sought to make those facts known to the Union by offering to let
the Union examine its books and to pay half of the expense involved in having
476. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an impartial accountant determine its financial status. The Union rejected
this offer, stating it did not see where the question whether or not the Company
was making money should enter into the problem. In addition to offering to,
renew the 1950-51 contract without the inclusion of what it considered a
closed-shop provision, Respondent made such concessions as agreeing to employ
an additional combination web-pressman and stereotyper, to pay time and
one-half after 6 hours work on the Saturday night shift, and to grant more.
liberal vacation benefits. The Union and the Sterotypers, working in concert,
in turn made such concessions as agreeing to modify their original proposal.
of 17 as a suitable number combination web-pressmen and stereotypers to be
employed, to 8, 1 more than Respondent considered necessary and was willing
to employ, to accept Respondent's counterproposal reducing the number of hours
to be employed at straight pay on the Saturday night shift and to reduce
demands for a 371/2-hour week by one-half hour. In some manner Respondent
came to believe that the Union had withdrawn its proposal that time and one-half,
should be paid for printing dodgers. However, the Union denied having made
such recession, at the same time,. nevertheless, expressing its readiness to make,
some compromise concerning the proposal as well as its original request for 10 per-
cent pay increase.
At no time however, was either the Union or were the Stereotypers agreeable
to signing a 1950-51 contract that did not contain some sort of a union or
closed-shop provision. They maintained the position that the Union had worked
for years to get such a provision incorporated in contracts, that they had no
intention of agreeing to eliminate it, and that the clause contained in previous
contracts reading: "It is not the intention or purpose of either of the parties
here to make any provision in this agreement which is in contravention of any
State or Federal Law, and, if it shall be found that any agreement contained
herein violates any law, such an agreement be null and void," cured any il-
legality that might inhere in the provision's inclusion.' The Union's offer or
suggestion that it would assist the Company in drafting a union-security clause
along the lines of those contained in other Arkansas printing crafts' collective
bargaining agreements did not amount, at most, to a surrender of its proposal
that a union- or closed-shop proposal of some character be included in the new
agreement. A reading of the quoted sample sections of the two other agreements
executed by the Union in Arkansas (see footnote 4) makes clear the fact that
no phraseology acceptable to the Union would provide that Respondent should
have the right to employ and continue in its employment anyone it chose re-
gardless of his membership or nonmembership in the Union.
Respondent contends that the Union engaged in a strike in order to attempt
to compel Respondent to execute an unlawful union-security agreement, that as
a consequence the strike was unlawful and in violation of Section 8 (a) (3) of
that Act, that as a result of such conduct the Union forfeited any rights it had
to represent Respondent's employees, and that accordingly, Respondent was not
obliged to bargain with the Union after March 29, 1951.
6 The fact that the Union would be willing to disregard an employment provision repug-
nant to the specific language or basic policy of the Act and the Arkansas Constitutional
Amendment and Enabling Act, when and if it should be declared illegal, furnished no
justification for asserting it should continue to remain in a new contract.
If Respondent had agreed to the inclusion of an illegal condition it would not be likely
to bring to light its own violation of the Act, and an affected employee should not be
required to file a charge nor the General Counsel obliged to prosecute a complaint, for
the purpose of testing the issue, before the Board having itself but disputable jurisdiction
to determine the question as to what is or is not unlawful union security in the State of
Arkansas.
COMMERCIAL PRINTING COMPANY 477
The burden of establishing by a fair preponderance of substantial evidence
that the strike . was designed , at least in substantial part, to achieve , in the form
of an illegal employment provision an unlawful goal, falls upon Respondent.
In my opinion , it has not sustained this burden . In the face of the testimony
of John A. Aeschliman, Sr., the union representative, that the strike was precipi-
tated because of the Union's belief that the Company was not bargaining with
him or attempting to bargain with him in good faith and because of what the
Union considered the Company's inconsistency in hiring an additional worker and
at the same time contending it did not need an additional employee, and in the
absence of convincing testimony that the strike was called in an attempt to compel
Respondent to accept an illegal union-security provision , I feel that Respondent
has done no more than raise a suspicion that this synergy was directed at
attaining an unlawful end.
But suspicion is not proof. Therefore, in arriving at the ultimate conclusion
that Respondent has not refused to bargain with the Union in violation of Section
8 (a) (5) of the Act, I am guided by considerations other than by this particular
contention . Furthermore , Respondent did not discontinue bargaining negotia-
tions after the strike but met with the Union on at least seven occasions and made
certain concessions already adverted to, after March 29. Respondent seemingly,
not only recognized that there was a chance that what seemed a steely rigidity
of bargaining positions on all matters, except those pertaining to the existing em-
ployment provision, before strike action , afterward might very well become
transmogrified by time and circumstance to a more ductile alloy of compromise,
but also realized that if in the presence of a strike it could have avoided the
obligation to bargain by declaring further efforts to be useless , the Act would
largely fail of its purposes.
Neither is it deemed necessary since I have arrived at the conclusion that
Respondent has not violated Section 8 (a) (5) of the Act , to consider whether
the bargaining unit claimed by the General Counsel is appropriate or whether
the pressroom employees and the job shop employees must be regarded as sep-
arate units. It is sufficient to point out that under all the circumstances of
this case, the record as a whole does not indicate that any intransigence on a
particular issue reflected Respondent 's intention to avoid coming to an agree-
ment. Although it does appear that Respondent refused to accede to all the
Union 's demands which would have involved increasing the expense of con-
ducting its business, it went to considerable pains, even to the extent of offer-
ing the Union an opportunity to audit its books ( an offer rejected by the Union),
in an attempt to satisfy the Union that its reasons for its refusal were adequate.
It was willing at all times to discuss, and did discuss with the Union and
the Stereotypers , these and other union proposals , including even the Union's
desire to continue the existing or a substantially similar employment provision
and urged upon the Union a clause that would meet the requirements of the
Act., Respondent not only offered to renew the old contract without the dis-
puted employment provision , but also agreed to various liberalizing concessions
on other issues . Under these circumstances , and in view of its previous satis-
factory relations with the Union over a period of 10 years, I am not persuaded
that Respondent 's intransigence on certain issues involving costs it strove to
convince the Union it could not bear, indicated an intention to avoid coming
to any agreement and feel that Respondent 's position on the issues wherein it
did not agree with the Union , did not constitute a refusal to bargain in good
faith . I find no evidence that Respondent approached the bargaining table other
than with a sincere desire to reach a lawful agreement . Accordingly , I shall
recommend dismissal of the allegations of the complaint that Respondent re-
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fused to bargain with the Union in violation of Section 8 (a) (1) and (5) 'of
the Act.
The Alleged 8 (a) (1) Violations
At the time the strike took place , the Union was the representative of Re-
spondent 's employees . Of course , Respondent was obligated to deal with it, and
not with the employees individually .. The record shows that before the strike,
Respondent's vice president , Armistead Freeman , asked employee Faulkner what
his position would be if the employees should strike and told Faulkner there
would be no hard feelings if he should go out with the other men, but he wanted
him to know that he would be taken care of if he would remain at work," and
asked employee Hale what he was going to do if the men struck and if he could not
join the Photo Engravers Union so that he could remain at work in the event of a
strike . It is apparently the contention of the General Counsel (although the
point was neither argued or briefed ) that such conduct on the part of an em-
ployer necessarily has the effect of undermining the authority of the bargaining
representatives of his employees, and thereby unlawfully interferes with the right
of the employees to bargain collectively , in violation of Section 8 (a) (1) of the
Act. These inquiries and remarks must be considered in their context . Freeman
is a young contemporary of both Faulkner and Hale and on especially friendly
terms with the former . Under the particular circumstances and on the basis of
the opportunity I had of observing both Faulkner and Freeman , I consider the
words "taken care of ," or their substantial equivalent , were calculated to give
Faulkner no other impression than that if he chose to stay he could count on
remaining at work under the conditions and prospects that had prevailed in the
past. During the course of the bargaining discussions, Freeman , while making
his daily rounds throughout the plant and his close contacts with its relatively
few employees , was frequently queried by them concerning the progress of nego-
tiations . It is not entirely clear whether these numerous discussions were
initiated or encouraged by Freeman or by.the employees themselves . It was not
proven by the General Counsel that in the instances of Faulkner and Hale the
references to the possibility of a strike were first made by them or by Freeman.
Rather it would appear with respect to Faulkner , that that subject grew out of a
conversation commenced by Faulkner relating to a broken press part and Faulk-
ner's indication that Freeman should realize there might be a strike if Respondent
and the Union could not agree on a contract . With respect to Hale, it would seem
that the subject arose during a conversation started by Hale's inquiry of Free-
man concerning the progress of negotiations . When Hale asked Faulkner, a
few days later , about taking his vacation , nothing was said about the imminence
of a strike or what Hale might do if one were called . Certainly there was no
evidence either that Freeman made any promise to Hale or that he took advantage
of Hale's request for a vacation , at the critical hour it was made, to ingratiate
himself with Hale by granting the request in the hope that Hale would either
seek to withdraw from the Union and join another or refrain from joining others
in a strike.
In view of all the circumstances in this case , including the absence of the com-
mission of any other unfair labor practices , I do not believe that the evidence
pertaining to only two isolated incidents in which any representative of man-
agement discussed the impending strike with its employees , sufficiently estab-
"Freeman denied making this employee any offers to "stay on" or asking him to "stay
on," but on the record as a whole, I find this denial unconvincing evidence that he did
not at least paraphrastically inform Faulkner he would be taken care of if he should
remain at work. _
COMMEIRCIAL- PRINTI 91ijiOMPANY 479-
fishes the fact of an attempt to undermine the Union's authority to warrant the
issuance of a remedial order.
Therefore, on the record as a whole I shall also recommend dismissal of the
allegations of the complaint that Respondent interfered with, restrained, and
coerced its employees in violation of Section 8 (a) (1) of the Act.
CoxcLvsIONs OF LAW
(1) The operations of Respondent, Commercial Printing Company, Pine Blur,
Arkansas, constitute and affect trade, traffic, and commerce among the several
States, within the meaning of Section 2 (6) and (7) of the Act.
(2) Pine Bluff Printing Pressmen and Assistants Union No. 438, International
Printing Pressmen and Assistants Union of North America, AFL, is a labor organ-
ization within the meaning of Section 2 (5) of the Act.
(3) Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
ACT 101 OF THE ACTS OF THE GENERAL ASSEMBLY
OF THE STATE OF ARKANSAS OF 1947
ACT 101
AN ACT for the Enforcement of the Provisions of Amendment No. 34 to the Constitution;
and for Other Purposes
Be it enacted by the General Assembly of the State of Arkansas:
SECTION 1. Freedom of organized labor to bargain collectively, and freedom
of unorganized labor to bargain individually is declared to be the public policy
of the State under Amendment No. 34 to the Constitution.
SEC. 2. No person shall be denied employment because of membership in, or
affiliation with, a labor union ; nor shall any person be denied employment
because of failure or refusal to join or affiliate with a labor union ; nor shall
any person, unless he shall voluntarily consent in writing to do so, be com-
pelled to pay dues, or any other monetary consideration to any labor organ-
ization as a prerequisite to or condition of, or continuance of, employment.
SEC. 3. No person, group of persons, firm, or corporation, association, or labor
organization shall enter into any contract to exclude from employment, (1)
persons who are members of, or affiliated with, a, labor, union ; (2) persons who
are not members of, or who fail or refuse to join, or affiliate with, a labor
union ; and (3) persons who, having joined a labor union, have resigned their
membership therein or have been discharged, expelled or excluded therefrom.
SEC. 4. Any person, group of persons, firm, corporation, association, labor
organization, or the representative, or representatives thereof, either for him-
self or themselves, or others, who signs, approves, or enters into a contract con-
trary to the provisions of this Act shall be guilty of a misdeameanor; and,
upon conviction thereof shall be fined in a sum not less than $100.00 nor more than
$5,000.00, and each day such unlawful contract is given effect, or in any manner
complied with, shall be deemed a separate offense and shall be punishable
as such as herein provided.
The power and duty to enforce this Act is hereby conferred upon, and vested
in, the Circuit Court of the county in which any person, group of persons, firm,
corporation, unincorporated association, labor organization, or representatives
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'thereof, who violate this Act, or any part thereof, resides or has a place of
business, or may be found and served with process.
SEC. 5. This Act shall not'apply to existing contracts, but shall apply to any
renewals or extensions thereof.
SEC. 6. The provisions of this Act are severable, and the invalidity of one
shall not affect the validity of the others.
SEC. 7. Labor controversies,' the disruption of industrial and agricultural
labor by labor disputes, the effort to force laborers to join, or to refrain from
'joining, labor organizations, are a menace to the peace, quietude, safety and
prosperity of the people of the State; an emergency is therefore declared, and
this Act shall take effect from and after its passage.
Approved : February 19, 1947.
AMENDMENT NO. 34 TO CONSTITUTION OF STATE OF ARKANSAS
No. 34. RIGHTS OF LABOR
SECTION 1. Discrimination for or against union labor prohibited.-No person
shall be denied employment because of membership in or affiliation with or
resignation from a labor union, or because of refusal to join or affiliate with
a labor union ; nor shall any corporation or individual or association of any
kind enter into any contract, written or oral, to exclude from employment
members of a labor union or persons who refuse to join a labor union, or because
of resignation from a labor union ; nor shall any person against his will be com-
pelled to pay dues to any labor organization as a prerequisite to or condition
of employment.
SEC. 2. Enforcement of amendment.-Legislation authorized. The General
Assembly shall have power to enforce this article by appropriate legislation.
OCEAN Tow, INC., PETITIONER and SEAFARERS INTERNATIONAL UNION
OF NORTH AMERICA and PACIFIC COAST MARINE FIREMEN, OILERS,
WATERTENDERS AND WIPERS ASSOCIATION . Case No. 19-RM-77.
June 3, 1952
Supplemental Decision and Direction
On February 13,1952, the Board issued a Decision and Direction of
Elections 1 in the above-entitled case, directing separate elections to be
conducted on each of the Employer's two ships, with the ultimate unit
finding, whether a single unit or two, to depend on the results of these
.elections.
. On March 7, 1952, one of the competing unions, Seafarers Interna-
tional Union of North America, herein called the SIU, filed a "Petition
for Reconsideration by Full Board," contending that only a single unit
'composed of employees on both vessels of the Employer is appropriate.
The Employer filed a memorandum in support of the motion, and the
Pacific Coast Marine Firemen, Oilers, Watertenders and Wipers As-`
sociation, the other competing union, a telegram in opposition. On
1 98 NLRB 77.
99 NLRB No. 84.