Florence Printing Co.

National Labor Relations Board - Board Decisions

Nov 21, 1963

145 N.L.R.B. 141 (N.L.R.B. 1963)

FLORENCE PRINTING CO . 141
would thus place the Respondent in the dilemma of violating Section 8(a)(5) by
refusing to bargain under the unprotected strike circumstances revealed in this case.
... the strike weapon is not an unqualified right ... [The Board's and Courts']
repeated solicitude for the right to strike is predicated upon the conclusion that
a strike when legitimately employed is an economic weapon which in great
measure implements and supports the principles of the collective bargaining
system.9 [Emphasis supplied.]
It would appear, therefore, in applying the applicable law to the facts in this case,
that where the illegal strike, which was not caused by any unfair labor practice of
the Respondent Company, violated the no-strike clause in the parties' collective-
bargaining agreement, and the Union's request to bargain was conditioned upon no
disciplinary action being taken against the unauthorized strikers, the company was
not legally bound to bargain with the Union while the strike was still in progress.
It is found, accordingly, in view of the foregoing conclusions, and upon the entire
record, that the Respondent's refusal to bargain on January 15, 1963, until the
strikers returned to work was not violative of Section 8(a) (5) of the Act. It will,
therefore, be recommended that the complaint be dismissed in its entirety 1°
9 N L R B v. Erie Resistor Corp., 373 U.S. 221.
'°The conventional conclusions of law which are customarily repeated at this point are
omitted as they will be found in the body of the Intermediate Report.
Florence Printing Co. and Charleston Typographical Union No.
43. Case No. 11-CA-2028. November 01, 1963
DECISION AND ORDER
On May 27,1963, Trial Examiner W. Gerard Ryan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. There-
after, the Respondent filed exceptions to the Intermediate Report and
a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to it three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
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 Intermedi-
ate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner!
'As the record, exceptions, and brief adequately present the issues and the positions of
the parties, the Respondent' s request for oral argument is denied.
The Respondent contends in its brief that the unit found appropriate by the Trial
Examiner is inappropriate because it includes teletype operators and proofreaders, who,
among other considerations , work in a separate room from composing room employees.
We find no merit in this contention, which has been considered in the Intermediate Re-
port. Also, we note that the Union, in its written request for recognition presented to the
Respondent on June 25, 1962, specified that it sought to include machine composition em-
145 NLRB No. 13.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order z of the
Trial Examiner with the following modifications :
1. Paragraph 1(c) is amended by deleting the words "like or re-
lated" and substituting therefor the word "other".
2. Paragraph 2(b) is renumbered 2(c) and the following inserted
as paragraph 2 (b) : 3
(b) Offer to all strikers, upon their application, reinstatement
to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, dis-
missing, if necessary, any employees hired after September 5,
1962, to replace these employees and make each employee whole
for any loss of pay suffered by him as a result of a failure to re-
instate him within 5 days after his application, in the manner set
forth in the section of the Intermediate Report entitled "The
Remedy." Interest at the rate of 6 percent per annum shall be
added to any backpay becoming due under this Order.
ployees ( teletype operators or teletype setters ) and proofreaders . The Respondent there-
upon orally refused outright to bargain, and later, by letter of June 29 , characterized
the Union ' s written request as one for a unit of employees performing "composing room
operations" without questioning the inclusion of said teletype operators and proofreaders.
In the circumstances we find that the Respondent ' s refusal to bargain beginning June 25
was not based upon any objection as to the composition of the unit Raising the issue in
this proceeding comes too late to convince us that the Respondent had a bona fide doubt
of its appropriateness See United Butchers Abattoir, Inc., 123 NLRB 946, 957 In addi-
tion, we , like the Trial Examiner , find that the unit is an appropriate one.
2 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent, Florence Printing Co , its officers , agents, successors , and assigns,
shall :
a With respect to the matter of interest on backpay , see Isis Plumbing & Heating Co ,
138 NLRB 716.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner W. Gerard Ryan at a hearing in
Florence, South Carolina , on January 15 through 22, 1963, on the complaint of
General Counsel and the answer of Florence Printing Co., herein called the Respond-
ent.) The issue litigated was whether the Respondent violated Section 8(a)(1)
and (5 ) of the Act . The General Counsel and Respondent participated in oral
argument and filed briefs.
1 The charge was filed on September 5, 1962, and an amended charge was filed on
October 26, 1962. The complaint issued on October 26, 1962. The complaint was amended
at the hearing as follows. Change "July 14" to "July 10" in paragraph 7(a) ; change
"July 10" to "July 14" In paragraph 7(b) ; change "August 13" to "August 3" in para-
graph 7(d) ; change "August 13" to "August 11" In paragraph 7(e) ; change "August 13"
to "August 3" in paragraph 7(f) ; change "July 16" to "August 13" in paragraph 7(k) ;
change "July 15" to "July 24" in paragraph 7(1). At the conclusion of General Counsel's
case-in-chief, an unopposed motion by Respondent was granted to strike all allegations in
the complaint alleging unfair labor practices on the part of Preston Dolin (office manager),
since no evidence was presented that Dolin engaged in any unfair labor practices
FLORENCE PRINTING CO. 143
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the answer admitted, and I find that at all times material
herein the Respondent is a corporation engaged in the publication of a daily news-
paper in Florence, South Carolina; that the Respondent subscribes to interstate news
services and publishes syndicated features and advertisements of nationally sold
products; that the Respondent in the fiscal year preceding the issuance of the com-
plaint in the course and conduct of its business received revenue in excess of
$500,000, and that during the same fiscal year Respondent made sales to and per-
formed services for customers located outside the State of South Carolina valued
in excess of $50,000; and that at all times material herein the Respondent is an
employer engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, the answer admitted, and I find that Charleston Typo-
graphical Union No. 43, herein called the Union, is, and has been at all times
material herein, a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Supervisors
John M. O'Dowd is the president, publisher, and general manager of the Respond-
ent and is an admitted supervisor.
Lee Roy Harris is the Respondent's mechanical superintendent and is an admitted
supervisor.
The complaint alleged and the answer denied that Leo Holland, described in the
complaint as composing room foreman, is a supervisor.
The record contains abundant proof based on credited testimony that Holland
is a supervisor within the meaning of the Act. He grants time off, assigns work,
changes job assignments, makes more money, brings in employees for overtime work,
and has been designated "in charge" when Harris is absent. Employee Glenn A.
Johnson, whose testimony I credit, testified that Holland has given him overtime
work and time off from work and has shifted him from job to job. Employee
Gonzalee Hanna, whom I credit, testified that Harris had instructed him that Holland
was in charge when Harris was not there. Employee Billy M. Thomas, whose testi-
mony I credit, testified he sought out Harris to ask specifically if Holland was his
boss and Harris replied he was when Harris was not there. Thomas answered,
"I sure hate that" and Harris replied, "That is the way it is." Holland has also
assigned overtime work to Thomas and moved him from job to job. Holland also
called Norris D. Windham in for overtime work and has granted him time off
according to Windham's credited testimony. According to the credited testimony
of Larry W. Stokes, Holland gave him overtime in June or July while Harris was
on vacation, has assigned him to different work tasks and work areas, and has
switched his jobs. Romelous E. Bass, whose testimony I credit, testified that Holland
has granted him time off, given him overtime work, and assigned work to him.
When Bass was hired by Harris in December 1951, Harris introduced him to the
working force and told Bass that Holland was the foreman and he was to do what
Holland told him to do. Employee Harry L. Quinn, whom I credit, testified Holland
has given him overtime and time off from work. Employee Edward T. Schuyler,
whom I credit, testified that about 11/2 years before he went to work for the
Respondent he was working in Fayetteville when Holland telephoned him from
Florence offering him a job. Schuyler did not accept at that time. He went to
work for the Respondent in January 1962, and since then Holland has assigned him
overtime work, has granted him time off, and has also switched him from job to
job.
Employee James R. Johnson, whom I credit, testified that Holland has given him
overtime and granted time off and has switched him regularly from job to job.
John M. O'Dowd testified that Harris is the only supervisor in the composing room
but O'Dowd testified on direct examination:
Q. Who designates or appoints supervisors in your plant?
A. Mr. Harris.
Q. And who designates , who actually employs them?
A. Mr. Harris.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Does he employ supervisors?
A. I employ supervisors.
Q. What authority do you give your supervisors?
A. He is to hire and fire and to supervise the makeup of the entire running
of the shop and the makeup men when he is not there carry on, and we have
three of them as I stated before.
Q. And who are they, sir?
A. Mr. Matthews, Mr. O'Neale and Mr. Holland. [Emphasis supplied.]
Q. And they carry on when Mr. Harris is not there, sir?
A. Yes.
Leo Holland on cross-examination admitted that he used his judgment in directing
the flow of work in the composing room and admitted to various instances where
he had given time off and assigned work
On October 14, 1959, the Respondent published a picture of Holland and other
employees in which Holland is clearly named "foreman." There is credited testi-
mony in the record that there has been no change in Holland's duties since then.
While the general rule is that newspaper clippings are not probative of the facts
alleged therein, this picture published by the Respondent, is, as contended by the
General Counsel, an admission against interest. It represents a holding out to the
other employees (who are pictured with Holland) that Holland has supervisory
status. Holland testified that his duties had not changed since the picture was
published.
While the record is clear that Holland does not have the right to hire and fire
employees, the possession of any one of the powers enumerated in Section 2(11) of
the Act is sufficient to establish supervisory status since the section is interpreted
disjunctively. Section 2(11) provides:
The term "supervisor" means any individual having authority in the interest
of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to direct them, or
to adjust their grievances, or effectively to recommend such action, if in con-
nection with the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent judgment.
Accordingly, I find that Leo Holland is a supervisor within the meaning of the Act.
B. The violations of Section 8(a) (1) of the Act
On the approximate dates set forth below, Supervisor Lee Roy Harris engaged
in the following conduct which I find to be violative of Section 8(a) (1) of the Act 2
On or about August 3, Superintendent Lee Roy Harris called employees Bass,
Quinn, and Glenn A. Johnson to President O'Dowd's office and told them that he
wanted to talk to them because he felt they were the leaders in the Union's organizing
movement. When the employees denied being leaders he told Johnson there was
no use for him to deny it because Johnson's father-in-law had told him Johnson
was one of the organizers; and Harris told Bass it was useless to deny it because
Harris knew the people had been meeting at Bass' house. Harris interrogated them
as to whether they had been to Charleston to contact the Union for organizational
purposes and why they had contacted the Union, and what made them think the
Union would offer any more than they had at the Company at the present time.
Harris told them in effect that he had O'Dowd's approval for pay increases and
2-week vacations but these could not be granted while the Union's letter demanding
recognition was in force. Harris told him he felt sure if Bass, Quinn, and Johnson
would talk to the other employees they could get the letter requesting recognition
withdrawn. The three employees each individually refused to sign a proposal peti-
tion for a pay raise or to get the other employees to effect the withdrawal of the
Union's letter requesting recognition.
The Respondent interrogated and threatened its employees when Superintendent
Harris asked employee Gonzalee Hanna, in the last of June, if he had anything to do
with the union mess, and when Hanna denied any knowledge thereof, Harris advised
him not to have anything to do with it because O'Dowd would close the doors
before he would have a union in his place of business.
On or about July 14, Harris called employee Alice T. Swift into Dolin's office
and told her he knew she had been talking with employee Bass about "that damn
union stuff"; that he knew she was a member of the Union and those who were in
the Union would get hurt. On or about July 24, Harris asked Swift to do him a
2 All dates hereinafter refer to 1962 unless otherwise stated.
FLORENCE PRINTING CO. 145
favor by typing up a letter asking for pay increases and 2-week vacations . Harris
said he would guarantee the pay increases and vacations if she would get the other
employees to sign it by pretending it was entirely her own idea. Swift refused
Harris' request.
During the first week in July, Harris approached employee Romelous E. Bass
at the timeclock as Bass was about to punch in and told him he heard that Bass
was the instigator in "this union business" and that Bass was going to get hurt.
Harris told Bass it was useless for Bass to deny he was the instigator because Harris
had gone to Charleston to check on him. Harris further informed Bass that O'Dowd
would never accept the Union and would close "the damn doors" first.
On or about August 13, while Bass was operating his machine, Harris came to
him and said he would appreciate it if Bass would try to talk other employees out
of organizing the Respondent because "you are only going to get hurt." Harris then
suggested that if Bass and employee Glenn Johnson would swing to Harris' side
they could put the paper out, never miss an edition, and let the others "go on the
street."
On or about July 9, Harris told employee William A. Matthews that if it were not
for the Union, Matthews would then be getting more money and vacations.
During the last week in August, Harris took employee Edward T. Schuyler into
one of the Respondent's offices and told him he wanted to find out how Schuyler
felt about the Union; that Harris said he had told O'Dowd he was going to find out
how everybody felt about it even if he had to go to jail and that O'Dowd had said to
go right ahead and O'Dowd would serve half of his time. During the discussion,
Harris questioned whether O'Dowd would go along for better working conditions
and said if there was a strike that Schuyler would be replaced.
On August 11, Harris interviewed employee Joseph W. Blake and told Blake
that O'Dowd would close the doors rather than sign a contract with the Union.
Blake was hired and worked from August 13 to 31.
On the approximate dates set forth below, I find that Leo Holland, a supervisor
as found above, engaged in the following conduct which I find to be violative of
Section 8(a) (I) of the Act:
On August 17, Leo Holland (referred to at times in the record as foreman)
stopped employee Glenn A. Johnson on the way to his machine and told him that
he did not think the employees realized that if the Union came in some of the
apprentices would have to be laid off to conform to a ratio of 1 apprentice for 10
journeymen.
During the first week in July, Holland approached employee Gonzalee Hanna
in the washroom and said he knew Hanna had nothing to do with the Union because
Hanna had too much to lose because Hanna's wife had a business in Florence
and Hanna had just bought a home there. Holland repeatedly said beginning in
later June or early July that O'Dowd would close the plant before he would accept
the Union.
On or about August 1, Holland asked employee Dorothy Porter if she had been
asked to join the Union and she answered that she had not been asked to join.
Holland then stated that O'Dowd would never go along with the Union nor would
he recognize it.
On or about August 18 in a conversation with employee Billy M. Thomas, Holland
stated that if the Company granted a wage increase the Union might consider it to be
a bribe. Later that night Holland asked Thomas if he had joined the Union and
when they went out "on the street" was Thomas going with them. Thomas replied
in the affirmative. Holland then replied that if Thomas ever walked out he would
never get back again. Still later that same night, Holland stated to Thomas that if
the Union came in, only one apprentice would be employed.
About a week before the strike, which occurred on September 5, employees
Norris D Windham, Romelous E. Bass, and Holland were together in the wash-
room. Holland told them he would be glad when this union mess is over and they
could all get a raise; that unions are all right in some shops but would never work
there because O'Dowd will never negotiate with any union.
In the latter part of July, subsequent to July 25, Holland told employee Larry W.
Stokes that O'Dowd had said that if they would give O'Dowd the names of those
who started this union business all would be forgotten.
On the same day in July that Harris charged employee Romelous E. Bass with
being the instigator of the union business, as set forth above, Holland informed
Bass that Harris had told Holland that Bass was an instigator in the union activity
and that Bass was going to get hurt. Holland continued that they were all fine
boys and Holland hated to see them get hurt; that O'Dowd would never recognize
the Union: that Holland had worked for O'Dowd for 35 years and he was a stubborn
734-070-64-vol. 145-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
old man and O'Dowd had said he would close the doors first. Holland also asked
Bass, if Bass thought a $2 raise would stop union activity and Holland said he
would talk to O'Dowd about it.
On or about August 27 or 28, Holland told employee Harry L. Quinn that if
the boys had not started that "damn mess" they would be enjoying 2-week vacations
and a substantial increase in pay.
About the first week in July, Holland told employee Edward T. Schuyler that
O'Dowd would never recognize a union and would close the doors first. Holland
continued by telling Schuyler that he had always been a good boy until he got
messed up with the union crowd.
On or about July 1, Holland told employee James R. Johnson, who was an ap-
prentice, that if the Union came in one or two apprentices would have to go. About
the middle of July, Holland told him O'Dowd would close the doors before he
would let the Union in.
About August 28, Holland told James R. Johnson that he would take a petition
to O'Dowd if it had everyone's name on it but he could do nothing until the Union
was dropped.
The above facts are based on the credited testimony of Glenn A. Johnson,
Gonzalee Hanna, Alice T. Swift, Dorothy Porter, Billy M. Thomas, Norris D.
Windham, Larry W. Stokes, Romelous E . Bass, William A. Matthews, Harry L.
Quinn, Edward T. Schuyler, Joseph W. Blake, and James R. Johnson.
Contrary testimony and denials by Lee Roy Harris and Leo Holland have not
been credited.
C. The violation of Section 8(a)(5) of the Act
1. The appropriate unit
The Union demanded recognition for a unit for all journeymen and apprentices.
performing composing room operations such as machine composition, machinist
work, hand composition, lineup and lockup work, proofreading, and markup and
layout work.
The complaint alleged anappropriate unit to be "all journeymen and apprentices
performing composing room operations . . . excluding all other employees and
supervisors. . . . .
At the hearing the General Counsel introduced evidence and contended for a unit
for all journeymen and apprentices and to include proofreaders and teletypsetters.
Upon the entire record and the credited testimony, I find that all journeymen
and apprentices performing composing room operations, including proofreaders and
teletypesetters, employed by the Respondent in its Florence, South Carolina, plant,
exclusive of all other employees and all supervisors as defined in Section 2(11)
of the Act, constitute a unit appropriate for collective bargaining within the meaning
of Section 9(b) of the Act. My reasons follow:
The Respondent contends that proofreaders and teletypesetters should not be in-
cluded in the unit because there is no similarity of skills between employees in the
composing room and the teletype room; that the pay scale is different and working
conditions are dissimilar. The Respondent introduced into evidence that teletype-
setters and proofreaders are in a room separated from the composing room by two
walls and a stairwell; that it takes 30 to 60 days to learn the skill of operating a
teletype machine; that anyone who can read and spell can do proofreading; and
that it takes 6 years to train a man in the skills of the composing room and there
could be no interchange of employees.
Proofreaders have historically long been considered as an essential part of com-
posing room work and there is no reason in my opinion to exclude them from the
composing room unit here.
The uncontradicted testimony shows that the teletypesetter is a machine used
since 1928 in the composing room for the purpose of producing type. It has two,
units, one of which is basically a typewriter keyboard; and a machine which per-
forates or punctures holes in tape. After the tape has been perforated it is folded
and fed through a Linotype or any type machine that has an automatic portion
attached to the keyboard, and the feeding of tape into it automatically actuates the
keys and sets type with the end product being a line of type in the same fashion as if
it were a manually operated machine
John M. O'Dowd testified that teletype punchers punched the tape to send back
to the composing room where it is put on a machine that is set automatically, and
that running the tape through the machine sets the reading type.
Alice T Swift, whose testimony I credit, testified that she and other teletype-
setters at times take proof, after it has been corrected by proofreaders, set up the type,.
FLORENCE PRINTING CO. 147
and then take the type to the composing room for the employees there to put on the
linotype machines.
Thus it appears that the chief function of linotype operators and teletypesetters
is the production of type for copy, and the only difference is the mechanical means
employed for the task.
There is no history of bargaining and the composing room employees , includ-
ing linotype operators , teletypesetters , operators , proofreaders , makeup men, moni-
tors and apprentices , have common supervision.
Finally, the variance from a unit described in the complaint and a unit described
in the Union 's request for recognition and a unit herein found to be appropriate
cannot be characterized as "substantial ." Brewery and Beverage Drivers and
Workers, Local No. 67, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, AFL-CIO (Washington Coca-Cola Bottling
Works) v. N.L.R.B., 257 F. 2d 194 (C.A.D.C.).3
2. The Union's majority
Respondent 's witness , John M. O'Dowd , testified that on June 25 there were 14
employees in the composing room and 3 teletypesetters and 2 proofreaders.
There is no doubt that the Union represented a majority of the composing em-
ployees on June 25. General Counsel 's witnesses , Glenn A. Johnson , Gonzalee
Hanna, Alice T. Swift, Alicia Flowers, Dorothy Porter, Billy M. Thomas, Norris
Windham, Larry W. Stokes, Romelous Bass, W. A. Matthews, Harry L. Quinn,
Edward T. Schuyler , and James R. Johnson , all testified to having signed authoriza-
tion cards for the Union between May 20 and June 18. In addition , General
Counsel's witness, Donald McFee, identified a card signed by composing room
employee Ernest Anderson at 1 p.m. on June 25, approximately 3 hours before the
meeting with J. M. O'Dowd , at which time the Union requested recognition. Thus,
there was a total of 14 cards signed by June 25 from a total of 19 employees.
3. The Respondent's refusal to bargain in good faith
When the union representatives , McFee and Winter , presented the Union 's written
request for recognition and bargaining to O'Dowd in his office on June 25 , O'Dowd
read it and then immediately said, "I will not sign a union contract. " Such a state-
ment, which is nowhere denied in the record , has been held to be an outright refusal
to bargain with a union violative of Section 8(a) (5). (Marlboro Electronic Parts
Corp., 127 NLRB 122, footnote 1.) At this meeting with O'Dowd the union repre-
sentatives informed O'Dowd they had cards with them signed by a majority of the
employees . They agreed to give the cards to O'Dowd at that time provided he
would agree to recognize the Union if the cards showed a majority. O'Dowd
refused and he was not shown the cards nor were the names of the signers divulged
although O 'Dowd asked for the names. O'Dowd told them that several years prior
there had been union activity in Florence and he had requested a list of names of
those who were joining the union and that after the union had given him the list, he
had beaten the union at that time . The union representatives then offered to prove
the majority in a secret election to be conducted by any third party , such as by any
minister to be selected by O'Dowd, or by O'Dowd's attorney, or by any public
official, or by a consent election by the Board. O'Dowd refused any means to
resolve the question of majority. He advised McFee and Winter he would advise
them further after he had consulted his attorney . On June 29 the Respondent sent
the following letter to Winter:
Mr. WILLIAM WINTER, Jr.
Vice President, Charleston Typographical Union No. 43
P O. Box 576
Charleston, South Carolina
JUNE 29, 1962.
DEAR MR. WINTER : I have your letter of June 25th in which you advise me
that your Local Union represents a majority of the employees of our firm who
perform composing room operations . The Company doubts your majority
status and has been advised by counsel that the Company will not recognize
nor bargain with your Union until you have established your majority status
through an election conducted by the National Labor Relations Board.
Very truly yours,
J. M. O'Dowu, President.
See footnote 5, infra
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the Respondent engaged in interference, restraint, and coercion violative
of Section 8 (a) (1) as found above, until shortly before the employees went out on
strike on September 5.
During the latter part of August, McFee met with Jack Wright 4 for the purpose
of requesting the Company to agree to a consent election to be conducted by some
minister or public official or an attorney. Wright advised McFee the Company's
position was as stated in its letter of June 29. Wright further informed McFee that
he (Wright) was not a labor lawyer but that he would take the matter up with
Attorney Ellison Smith who had been employed in this matter. McFee replied that
the employees were getting restless and he requested an answer as soon as possible.
Thereafter on September 4, McFee and Winter visited Wright at his office. McFee
expressed disappointment that he had not heard from Wright and Wright told him
that after reaching Ellison Smith the position of the Company was still as stated in
its letter of June 29. McFee again asked that a consent election be held and that
he would leave the choice of the individual to conduct the election up to the
Company and requested an answer as soon as possible. McFee then handed a
petition to Wright which contained the names of the employees seeking recognition
under the Union. Wright testified that he would take the matter up with Ellison
Smith and advise him. McFee replied that he would have to have an answer that
-day, that the matter was very urgent because the men could not put up with what
was happening at the plant, or "words to that effect."
On September 5, McFee telephoned Wright who told him no decision had been
reached either to recognize the Union or to enter into a consent election, and such
decision would not be made until Ellison Smith arrived in Florence the next day.
McFee told Wright unless a decision was forthcoming, the employees would not be
to work.
On September 5, 13 of the employees who had signed cards went on strike and
have since remained on strike.
Wright testified that he accepted the petition and returned it by mail on Sep-
tember 6 to the Union, pursuant to instructions of Ellison Smith. Wright further
testified that he did not show the petition or tell anyone at the newspaper about it.
If the Respondent's refusal to recognize the Union was due to a good-faith doubt
of the Union's majority status, then there has been no violation of Section 8(a)(5)
of the Act.
It is equally clear that if the Respondent's refusal to recognize the Union was.in
bad faith, then there has been a violation of Section 8(a)(5) of the Act
Following O'Dowd's statement on June 25 that he would not sign a union contract,
the Respondent engaged in interference, restraint, and coercion violative of Section
8(a) (1) as found above. Such conduct continued until shortly before the employees
went on strike on September 5. I find that the strike which began on September 5
was caused by Respondent's unfair labor practices. On September 5, the Respondent
had further evidence of a visual nature of the Union's majority. This majority
support has continued and the strike was still in progress at the time of the hearing
herein. Notwithstanding such evidence, the Respondent has made no further reply
to the Union's demand for recognition.
An employer may refuse recognition to a union when motivated by a good-faith
doubt of that union's majority status. Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d
732, 741 (C.A.D.C.), cert. denied 341 U.S. 914; N.L.R.B. v. Chicago Apparatus
Company, 116 F. 2d 753, 758 (C.A. 7). The principle applied is the equitable
one that an employer who has a good-faith doubt of majority has a right to have
the doubt resolved and is "entitled to adequate proof" in a Board election that the
union in fact represents a majority. N.L.R B. v. Chicago Apparatus Company,
supra, p. 758 But since this exception to the mandatory bargaining duty prescribed
by the statute is based upon equitable principles, the employer is not permitted to
avoid bargaining where, as here, it engages in unfair labor practices which tend to
dissipate the union's majority. N.L R.B. v. Federbush Company, Inc., 121 F. 2d
954, 956 (C.A. 2), cert. denied 304 U.S. 576. Such an employer, having made
"no attempt to learn the facts" and instead having embarked on an unlawful course
of action designed to undermine the union and prevent a free election, must "take
the chance of what [the facts] might be." NL.R.B. v. Remington Rand, Inc., 94
F. 2d 862, 869 (C.A. 2). Such an employer cannot later be heard to say it doubted
the union's majority. N.L.R.B. v. Samuel J. Kobritz, d/b/a Star Beef Company,
193 F. 2d 8, 14 (C.A. 1); N.L.R.B. v. Reed & Prince Manufacturing Company,
4 Wright is an attorney for the Respondent who recommended to O'Dowd that Attorney
Ellison D. Smith be retained in this proceeding . Wright noted his appearance as one of
the attorneys for the Respondent in the proceeding.
FLORENCE PRINTING CO. 149
118 F. 2d 874, 886 (C.A. 1), cert. denied 313 US. 595; Scobell Chemical Company,
Inc. v. N.L.R.B., 267 F. 2d 922, 926 (C.A. 2).5
Assuming, arguendo, that the Respondent had any doubt of the Union's majority
prior to September 5, such doubt was dispelled by the strike in which 13 of 19
eligible employees participated. It is well settled that the appearance of striking
employees on a picket line may constitute evidence of majority as well as an in-
depenent demand for recognition. N.L.R.B. v. Irving Taitel, et al., d/b/a I. Taitel
and Son, 261 F. 2d 1, 4 (C.A. 7), cert. denied 359 U.S. 944; N.L.R.B. v. Barney's
Supercenter, Inc., 296 F 2d 91, 94 (C.A. 3); Scobell Chemical Company, Inc. v.
N.L.R.B., 267 F. 2d 922, 925 (C.A. 2). Certainly after the strike began the
Respondent could no longer contend in good faith that it doubted the Union's
majority. Cf. N.L.R.B. v. Barney's Supercenter, Inc., supra.
An employer's failure to respond to union offers to prove majority representation
is evidence that its doubt of majority is not based on good faith. N.L.R.B. v.
Dahlstrom Metallic Door Company, 112 F. 2d 756, 757 (C.A. 2); N.L R.B. v.
1. Taitel and Son, supra; N.L.R.B. v. W. T. Grant Company, 199 F. 2d 711, 712
(C.A. 9), cert. denied 344 U.S. 928; N.L R.B. v. Loren Decker, d/b/a Decker
Truck Lines, 296 F. 2d 338, 341 (C.A. 8); Idaho Potato Growers, Inc. v.'N.L R.B.,
144 F. 2d 295, 308 (C.A. 9), cert denied 323 U.S. 769.
Accordingly, I find on the entire record that the Respondent refused to recognize
the Union, not because it doubted its representative status, but because it was
seeking to forestall collective bargaining with the Union which represented a
majority in an appropriate unit in violation of its obligation under the Act.6 I there-
fore find that the Respondent on and after June 25 refused to bargain in good faith
with the Union as the representative of its employees in an appropriate unit in
violation of Section 8(a) (5) and (1) of the Act?
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations set forth in section I, above, have a close, intimate,
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 Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. I have found that on June 25, 1962,
and at all times thereafter, the Union was the authorized and exclusive representative
of the Respondent's employees in an appropriate unit for the purposes of collective
bargaining, and that on and after that date the Respondent refused to bargain with
said representative in violation of the Act. Accordingly, I shall recommend that
Respondent be ordered to bargain, upon request, with the Union as the authorized
and exclusive representative of its employees in the appropriate unit described
herein; and in the event an understanding is reached, embody such understanding
in a signed agreement.
Having found that the Respondent's striking employees are unfair labor practice
strikers, and as the record does not establish that the strikers have abandoned the
strike or are unavailable for reemployment, I shall recommend that the Respondent,
upon application, offer the strikers reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights and privileges,
dismissing, if necessary, any employees hired after September 5, 1962, the day the
strike started, to replace the striking employees. I shall recommend that the
Respondent be ordered to make whole those strikers who are entitled to reinstate-
ment for any loss of pay they may suffer by reason of the Respondent's refusal,
if any, to reinstate them, upon request, by payment to each of them of a sum of
money equal to that which he normally would have earned as wages during the period
beginning 5 days after the date on which be applied for reinstatement and terminat-
ing on the date of the Respondent's offer of reinstatement, such loss to be computed
in the manner set forth in F. W. Woolworth Company, 90 NLRB 289.8
5 Similar principles govern any professed doubt as to the appropriateness of the bargain-
ing unit sought by the Union. NL.R.B. v. Clarksburg Publishing Company, 120 F. 2d
976, 980 (C.A. 4) ; N.L.R.B. v. Jackson Press, Inc, 201 F. 2d 541, 544 (C.A. 7).
9 Joy Silk Mills, Inc. v . N.L R B., 185 F. 2d 732 (C.A.D.C.), cert. denied 341 U S. 914.
Tinley Park Dairy Co ., d/b/a Country Lane Food Store, 142 NLRB 683.
8 Sidney Seltzer and Ralph Seltzer, d/b/a G. cE S. Electric Company, 130 NLRB 961.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the nature of the unfair labor practices found to have been committed,
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 is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Charleston Typographical Union No. 43 is a labor organization within the
meaning of Section 2(5) of the Act
3. All journeymen and apprentices performing composing room operations, in-
cluding proofreaders and teletypesetters, employed by Respondent in its Florence,
South Carolina, shop, exclusive of all other employees and supervisors as defined in
the Act, as amended, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
4. On June 25, 1962, and at all times since that date, the Union 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 employment by virtue of
Section 9 (a) of the Act.
5. By refusing, on June 25, 1962, and at all times thereafter, to bargain collec-
tively with the Union, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
6. By its interrogation, threats, and promises of benefits, thereby interfering with,
restraining, and coercing its employees 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 within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Florence Printing
Co., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with Charleston Typographical Union
No 43 as the exclusive representative of all its employees in the following ap-
propriate unit: All journeymen and apprentices performing composing room opera-
tions, including proofreaders and teletypesetters, employed by Respondent in its
Florence, South Carolina, plant, exclusive of all other employees and all supervisors
as defined in Section 2 (11) of the Act.
(b) Interrogating employees concerning their membership in or activities on
behalf of the Union, or any other labor organization. in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8(a) (1) of the Act, or threaten-
ing them with reprisals for their membership in or activities on behalf of the Union
in violation of Section 8(a)(1) of the Act, or promising them benefits for foregoing
their membership in or activities on behalf of the Union in violation of Section
8 (a) (1) of the Act.
(c) In any like or related manner interfering with. restraining, or coercing its
emnlovees in the exercise of the rights guaranteed in Section 7 of the Act
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Upon request, bargain collectively with the above-named Union as the ex-
clusive representative of all the employees in the appropriate unit and embody in
a siened agreement any understanding reached.
(b) Post at its plant, copies of the attached notice marked "Appendix." 9 Conies
of said notice, to be furnished by the Regional Director for the Eleventh Region,
9In the event this Recommended Order be adopted by the Board, the words "A Decision
and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order."
FLORENCE PRINTING CO. 151
shall, after being duly signed by a representative of the Respondent, be posted by it
immediately upon receipt thereof, and be maintained by it for a period of 60 con-
secutive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Eleventh Region, in writing, within 20
days from the date of receipt of this Recommended Order, what steps have been
taken in compliance.'o
is In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read: "Notify the said Regional Director, in writing, within 10 days from
the date of this Order, what steps have been taken in compliance "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL, upon request , bargain collectively with Charleston Typographical
Union No. 43, as the exclusive representative of all employees in the bargaining
unit described below, with respect to rates of pay, wages, hours of employment,
and other conditions of employment , and, if an understanding is reached,
embody such understanding in a signed agreement . The bargaining unit is:
All journeymen and apprentices performing composing room operations,
including proofreaders and teletypesetters, employed in our Florence,
South Carolina, plant, exclusive of all other employees and all supervisors
as defined in Section 2 (11) of Act.
WE WILL NOT interrogate our employees concerning their membership in or
activities on behalf of the Union, or any other labor organization, in a manner
constituting interference , restraint , or coercion in violation of Section 8(a)(1)
of the Act.
WE WILL NOT threaten our employees with reprisals for their membership in
or activities on behalf of the Union in violation of Section 8(a)(1) of the Act.
WE WILL NOT promise our employees benefits for foregoing their membership
in or activities on behalf of the Union in violation of Section 8(a)(1) of the
Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations , to joint or assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in union or other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities.
WE WILL offer to all strikers, upon their application, reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges , dismissing , if necessary , any employees hired
after September 5, 1962, to replace these employees and we will make each
employee whole for any loss of pay suffered by him as a result of our failure
to reinstate him within 5 days after his application.
All our employees are free to become, remain , or refrain from becoming or
remaining members of any labor organization.
FLORENCE PRINTING CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the strikers above referred to, if presently serving
in the Armed Forces of the United States, of their rights to full reinstatement upon
their application in accordance with the Selective Service Act and the Universal
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 1831
Nissen Building, Winston-Salem, North Carolina, Telephone No. 724-8356, if they
have any question concerning this notice or compliance with its provisions.