Houston Chronicle Publishing Co.

National Labor Relations Board - Board Decisions

Mar 7, 1961

130 N.L.R.B. 1243 (N.L.R.B. 1961)

HOUSTON CHRONICLE PUBLISHING COMPANY 1243
Houston Chronicle Publishing Company and Houston News-
paper Guild , Local 113, of American Newspaper Guild, AFL.
CIO. Case No. 23-CA-1007. March 7, 1961
DECISION AND ORDER
On July 29, 1960, Trial Examiner Samuel Ross issued his Interme-
diate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Intermedi-
ate Report, a supporting brief, and a request for oral argument ; ' and
the Charging Party filed a brief in support of the Intermediate
Report.
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 a three-member-panel [Chairman Leedom and Members
Rodgers and Jenkins].
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 exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner as modified herein.
On July 29, 1959, the Union filed a representation petition request-
ing certification as representative of Respondent's editorial employees.
On August 27, 1959, the Union and Respondent executed a stipulation
for certification upon consent election. An election was conducted pur-
suant to such stipulation on October 15, 1959. The Union challenged
the right of five voters to participate in the election. Thereafter, the
Respondent filed objections to the conduct of the election with the
Regional Director. Subsequently, on December 31,1959, the Regional
Director issued his report and recommendations on the challenged bal-
lots and objections. Among other things, the Regional Director
recommended that the challenge to the'ballot of Collier be sustained.
Respondent filed exceptions to the report and recommendations and a
supporting brief. The factual and legal issues raised by such excep-
tions were duly considered and passed upon by the Board in its De-
cision and Direction z issued on February 29, 1960. On March 11,1960,
the Union was certified as the exclusive bargaining representative of
the employees involved herein.
1 Since the record and the briefs adequately present the issues and the positions of the
parties, we hereby deny such request.
2 Not published in NLRB volumes.
130 NLRB No. 125.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint herein alleges, and the Trial Examiner has found,
that the Respondent has refused to bargain with the Union in deroga-
tion of Section 8 (a) (5) of the Act. The Respondent defends its con-
-duct upon various grounds connected with the representation proceed-
ing conducted by the Board. It contends, inter alia, that it has been
relieved of its duty to bargain pursuant to the Board's certification be-
cause it was denied a formal hearing upon issues raised by its objec-
tions to the election and its position with respect to the challenges to
the ballots of Collier and Binion; because of alleged ambiguities in the
description of the certified bargaining unit; and because of an asserted
deviation between the bargaining unit agreed to in the stipulation and
the unit subsequently certified by the Board. We find no merit in these
arguments and defenses.
1. The ballots of Collier and Binion were challenged by the Union,
during the representation election on the ground that, between the
time of execution of the stipulation and the date of the election, Collier
and Binion had assumed new positions which were asserted to be
supervisory in nature. Respondent's objections to the conduct of the
election stem from a letter sent by the Union to Respondent's em-
ployees on October 13, 1959, which is asserted to contain false, inaccu-
rate, and misleading statements. During the course of the representa-
tion proceeding, the Respondent had full and adequate opportunity to
present to the Regional Director all available evidence relating to its
objections and its position with respect to the challenged ballots. Re-
spondent's objections, its exceptions to the Regional Director's report,
and the supporting evidence it adduced were all carefully considered
and evaluated by the Board. This is reflected in the Board's Decision
and Direction of February 29, 1960, in which the Board, having given
full weight to the Respondent's factual allegations and contentions
relative to the objections to the conduct of the election and the dis-
puted status of Collier, stated that a formal hearing on these issues
was unnecessary. The Respondent's objections were accordingly dis-
missed, and Collier was determined to be a supervisor within the mean-
ing of the Act, and hence ineligible to participate in the election.
In essence, the Respondent now argues that the denial of a formal
hearing in the representation proceeding on its objections and the
issue as to Collier's status was arbitrary and capricious, and that the
lack of such formal hearing renders the Board's certification a nullity.
We do not agree with this premise of Respondent. At the time the
Board passed upon these two issues, there existed no dispute or con-
flicting assertions relative to the facts surrounding each such issue.
The Board, in regard to each of these specific issues, accepted the Re-
spondent's factual assertions at full face value. In the absence of any
open factual or credibility questions, the Board made and announced
its legal conclusions based upon the uncontroverted facts then before
HOUSTON CHRONICLE PUBLISHING COMPANY 1245
it. Consequently, we reject the Respondent's contention that it is
being deprived of procedural due process by virtue of our denial of a
formal hearing on these specific issues in the representation proceed-
ing. Moreover, we note.that the Respondent made no effort at the
hearing in the instant complaint case to adduce any new or additional
evidence bearing upon these two issues, but instead chose to rely upon
the denial of a formal hearing in the representation proceeding as a
naked defense to its refusal to bargain.'
On the other hand, the Board recognized, in its Decision and Direc-
tion of February 29, 1960, that there were conflitcing factual assertions
relative to the new position held by Binion that should be resolved by
a formal hearing. However, when it became apparent that Binion's
ballot could not affect the final results of the election, the Regional
Director, in accordance with the Board's instructions, did not conduct
such a hearing, but instead issued a certification.
It is true that supervsiory positions may not as a matter of law be
included within the scope of an appropriate unit for the purposes of
collective bargaining. As a matter of policy, however, the Board does
not normally withhold its certification in cases where the union has
demonstrated a clear majority in an otherwise appropriate unit and
a dispute. over the unit placement of certain employees cannot affect
the results of the election. This is so because the Board's long experi-
ence demonstrates that in the vast majority of cases, good faith
discussion between the parties will resolve such disputes without the
necessity of further recourse to the Board for a final adjudication.
Here this policy has apparently been frustrated because the Re-
spondent adopted an adamant position against collective bargaining
before there was ever an opportunity to reach the issue of Binion's
unit placement. Moreover, we note that the Respondent made no
effort to adduce evidence as to Binion's new position at the hearing in
the instant case. Further, it made no effort following the certification,
and before its announced refusal to bargain, to seek clarification of
the Board's certification. Where, during the course of bona fide collec-
tive bargaining, the parties are unable to resolve such issues in con-
formity with the Act and the Board's decisions thereunder, then either
one or both have a continuing right to seek clarification from the
Board. The availability of such recourse is not, of course, to be con-
strued as a license for the abandonment of orderly collective bargain-
ing on all other points that may then be open before the parties. In
8 This case is distinguishable from N.L .R.B. v . Joseph Sidran d/b/a Sidran Sportswear,
181 F. 2d 671 (C.A. 5), denying enforcement to 81 NLRB 270. There the court denied
enforcement of the Board's Order on the ground that the respondent had not been
granted a hearing on material factual issues that were disputed by the respondent in the
representation case as well as in the subsequent unfair labor practice case . Here, in the
absence of any such disputed facts regarding these two issues in the representation pro-
ceeding, no such hearing was necessary or warranted.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the circumstances of this case, we find that the Respondent's alleged
doubt as to the, inclusion or exclusion of Binion's present position was,
and is, not a defense to the refusal-to-bargain charge now before the
Board.
2. The Respondent also defends its refusal to bargain with the
Union on the grounds of alleged ambiguities in the description of the
certified bargaining unit. As set forth more fully in the Intermediate
Report, the Union's representation petition covered all employees of
the editorial department of the Houston Chronicle Publishing Com-
pany. The Respondent subsequently entered into a stipulation for
certification upon consent election in which the appropriate collective-
bargaining unit.was defined as "The editorial department of the Hous-
ton Chronicle," excluding 10 named supervisors. The Respondent
and the Union also agreed at the time the stipulation was executed
that 111 named employees on a "payroll list," which was attached to
and made a part of the stipulation, were the employees in the unit and
were eligible to vote in the election. The employees thus named in-
cluded Respondent's editorial department employees working at its
home offices in Houston, Texas, and other editorial department em-
ployees located at Austin, Texas, and Washington, D.C. Provision
was made in the stipulation for employees at these latter named loca-
tions to vote in the election by means of mail ballots.
The Board, in its Decision and Direction of February 29, 1960, dis-
posing of the objections and challenges growing out of the election,
defined the stipulated and appropriate bargaining unit as "All em-
ployees in the editorial department of the Employer's Houston, Texas,
newspaper operation. . . ." The Regional Director ultimately cer-
tified the Union as the exclusive representative of the employees in
such unit.
The Trial Examiner found that the unit described above, which
utilizes the term "Employer's Houston, Texas, newspaper operations,"
has been, and is, the appropriate certified unit. The Trial Examiner
further found that the Respondent had unlawfully refused to bargain
with the certified representative of that unit. Respondent excepts to
these findings because the complaint sets forth the term "Houston,
Texas, plant," in describing the unit alleged to be appropriate and cov-
ered by the certification. The Respondent argues that the unit alleged
in the complaint differs from that certified, and that, in any case, the
unit descriptions in the certification, the complaint, and the Interme-
diate Report are all defective because, contrary to the parties' origi-
nal stipulation, they purport to exclude the Austin; Texas, and Wash-
ington, D.C., segments of the editorial department.
We reject the Respondent's contention that it had a basis for a good-
faith doubt as to the scope of the bargaining unit for which it is re-
HOUSTON CHRONICLE PUBLISHING COMPANY . 1247
quired to bargain,4 or that ,there is a fatal variance between the unit
agreed to in the stipulation and that subsequently certified. The
Austin, Texas, and Washington, D.C., segments of the Respondent's
editorial department were included in the' agreed-upon payroll list
appended to the stipulation, and no document bearing the imprimatur
of the Board, the General Counsel, or the Trial Examiner has ever sug-
gested that employees at these locations were excluded, from the cer-
tified unit. The headquarters of, and focal point for, all the Respond-
ent's editorial department activities is its Houston, Texas, offices. In
these circumstances, we find that neither the term "Houston, Texas,
plant," as used in the complaint, nor the term "Houston, Texas, news-
paper operations" as used in the Intermediate Report, is actually at
variance with the unit agreed upon in the stipulation and. for which
a certification subsequently issued. We see no reasonable basis for the
Respondent's contentions relative to confusion as to, or variance in,
the scope of the appropriate certified unit.5
3. Respondent finally seeks to excuse its refusal to bargain on the
ground that the Union was certified as the representative of "all em-
ployees" in the editorial department, notwithstanding prior agreement
that three. specific individuals, Jackson, Rickard, and McLemore were
to be ineligible to vote in the election. At the time the stipulation was
entered into, and at Respondent's urging, it was agreed that these three
named individuals would be deemed ineligible to participate in said
election. Their names were physically stricken from the payroll list
that was appended to, and which became a part of, the stipulation.
The Respondent now contents that the certification is defective, in
that it departs from the stipulation, because it did not specifically
exclude these three named individuals from the unit. Conversely, and
somewhat inconsistently, the Respondent argues that, in any -event,
the stipulation arbitrarily deprived these three individuals of a right
to vote, and the certification is therefore void. We reject these
contentions.
When considered in connection with the stipulation and the payroll
list from which the names of the three individuals were deleted, it is
apparent that the words "all employees"' in the certification cannot
reasonably be construed as purporting to include these individuals.
Indeed, the Union has made no request to bargain for these three in-
* It is apparent , as indicated in the Intermediate Report, that the Respondent had de-
cided it would "refuse to bargain" with the Union on March 7 , 1960. The General
Counsel's complaint herein did not issue until 1 month later. It appears to us that the
Respondent ' s present contention with regard to variance in unit descriptions is an after-
thought and rationalization for its prior unlawful refusal to bargain.
5 Notwithstanding our conviction that there exists no reasonable grounds for mis-
interpretation as to the scope of the certified unit, we will , in our Order entered herein,
include language which will clearly and specifically indicate that the Respondent's duty
to bargain is not limited to editorial department employees physically located at
Houston, Texas.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dividuals. As for Respondent's inconsistent assertion that they should
be included in the bargaining unit, such assertion is, of course, at var-
iance with Respondent's original position in the matter when the stip-
ulation was executed both by the Union and itself. Moreover, al-
though afforded an opportunity to adduce evidence at the hearing in
this case as to the status of these individuals-and thus attack its own
stipulation-the Respondent failed to produce any admissible evidence
that would prove or tend to demonstrate that these individuals were
erroneously excluded from participation in the election.
ORDER
Upon the entire record of this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended; the National Labor
Relations Board hereby orders that the Respondent, Houston Chron-
icle Publishing Company, its agents, officers, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Houston Newspaper
Guild, Local 113, of American Newspaper Guild, AFL-CIO, as the
exclusive representative of all of the employees in the editorial de-
partment of the Respondent's Houston, Texas, newspaper operation,
including those employees in such department located at Austin,
Texas, and Washington, D.C., and excluding all other employees,
guards, and supervisors as defined in the Act, in respect to rates of
pay, wages, hours of employment, or other terms and conditions of
employment.
(b) In any like or similar manner interfering with, restraining, or
corecing its employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist Houston
Newspaper Guild, Local 113, of American Newspaper Guild, AFL-
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
and protection, or to refrain from engaging in such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Houston Newspapers
Guild, Local 113, of American Newspaper Guild, AFL-CIO, as the
exclusive representative of all employees in the aforementioned appro-
priate unit, in respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and if an under-
standing is reached, embody such understanding in a signed
agreement.
HOUSTON CHRONICLE PUBLISHING COMPANY 1249
(b) Post at its offices at Houston and Austin, Texas, and Washing-
ton, D.C., copies of the notice attached hereto marked "Appendix."'
Copies of the said notice, to be furnished by the Regional Director for
the Twenty-third Region, shall, after having been duly signed by the
Respondent, be posted by Respondent immediately upon receipt
thereof and maintained by it for a period of not less than 60 consecu-
tive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Notify the said Regionual Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
E In the event that this Order is enforced by a decree of it United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively upon request with Houston News-
paper Guild, Local 113, of American Newpaper Guild, AFL-
CIO, as the exclusive bargaining representative of all our
employees in the bargaining unit described herein, in respect to
rates of pay, wages, hours of employment, or other terms and
conditions of employment, and if an understanding is reached, we
will embody such understanding in a signed agreement. The
bargaining unit is:
All employees in the editorial department of our Houston,
Texas, newspaper operation, including those employees in
such department located at Austin, Texas, and Washington,
D.C., and excluding all other employees, guards, and super-
visors as defined in the Act.
HOUSTON CHRONICLE PUBLISHING 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.
597254-61-vol. 130-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by Houston Newspaper Guild, Local 113, pf American
Newspaper Guild, AFL-CIO, herein called the Union, the General Counsel of the
National Labor Relations Board issued a complaint dated April 7, 1960, and an
amendment to the complaint dated April 8, 1960, against the Houston Chronicle
Publishing Company, herein called the Respondent, alleging that Respondent has
engaged in and is engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) of the Labor Management Relations Act, as
amended (61 Stat. 136, 73 Stat. 519), herein called the Act. The Respondent has
filed an answer which denies the commission of the unfair labor practices.
Pursuant to notice, a hearing was held before Samuel Ross, Trial Examiner,, on
May 4, 1960, at Houston, Texas. All parties were represented at the hearing by
counsel and were given full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues.
Upon the entire record in the case, 1 make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, a Texas corporation whose principal office and place of business
is located in Houston, Texas, is engaged in the puolication of a daily newspaper.
During the past 12 months, a representative period, the Respondent held memner-
ship in or subscribed to the services of Associated Press and United Press, published
nationally syndicated features, and advertised nationally sold products. Respond-
ent's gross annual volume of revenue during this period was in excess of $200,000.
Upon the foregoing admitted facts, I find that the Respondent is engaged in inter-
state commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Houston Newspaper Guild, Local 113, of American Newspaper Guild, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On July 29, 1959, the Union filed a petition with the Board requesting certifica-
tion as the representative of the Respondent's employees in a unit composed of "all
employees of the editorial department" of the Respondent.' On August 27, 1959,
the Union and the Respondent, with the approval of the Regional Director for the
Twenty-third Region, entered into a stipulation for certification upon consent elec-
tion. By the terms of the stipulation, the parties agreed that the appropriate
collective-bargaining unit was "the editorial department of the Houston Chronicle,
in accordance with a payroll list" as of August 27, 1959, which was attached to the
agreement. The stipulation excluded "supervisors as defined in the act" from the
unit and specifically designated the excluded supervisors by name. The stipulation
further provided, inter alia, that the three employees of Respondent's Washington,
D.C., Bureau would be permitted to vote by mail. On October 15, 1959, from 3 to
5 p.m., the election was conducted. Out of 111 eligible voters, 109 cast ballots.
The original tally of ballots disclosed that 54 voted for the Union and 50 against
the Union. Five ballots were challenged by the Union, two on the ground that
these persons had been promoted to supervisory positions before the election.2
Accordingly, the challenged ballots were sufficient in number to affect the results
of the'election.
On October 21, 1959, the Respondent filed timely conditional objections to "the
conduct of the election and conduct affecting the results of the election." In said
objections, the Respondent contended that all five of the voters challenged by the
Union were persons whose names were on "the agreed eligibility list" and that,
therefore, the Board agent acted "arbitrarily, capriciously and unreasonably" in per-
mitting the challenges. The Respondent's objections further asserted that a letter
sent by the Union by special delivery to the Respondent's employees on October 13,
1959, interfered with a fair election because it contained "deliberately false, inaccu-
rate and misleading statements" in respect to the wage rates and fringe benefits pro-
1 Case No. 39-RC-1430.
The other three challenges were to the votes of the employees who worked in Re-
spondent 's Washington , D.C., Bureau.
HOUSTON CHRONICLE PUBLISHING COMPANY 1251
vided by the Union's contract with another newspaper, the San Antonio Light, and
concerning the legal consequences which would follow if the Respondent withdrew
its unilateral pension from the. editorial employees in "a discriminatory manner."
Thereafter, on December 31, 1959, the Regional Director issued his report and
recommendations on the challenged ballots and the conditional objections filed by
the Respondent. Therein, the Regional Director recommended that the challenges
to the ballots of the two alleged supervisors, Everett Collier and Clayte Binion,
should be sustained because as of the date of the election they had been promoted
to and held supervisory positions. In respect to the challenges of the votes of the
three employees in Respondent's Washington Bureau, the Regional Director con-
cluded that the challenges were lacking in merit but, in view of his conclusions in
respect to Collier's and Binion's supervisory status, the Regional Director recom-
mended that since these three votes were "no longer determinative," they should
not be opened. In respect to the alleged "false,' inaccurate and misleading" state-
ments in the Union's letter of October 13, 1959', the Regional Director concluded,
contrary to the contentions of the Respondent, that the letter did "not exceed the
bounds of permissible campaign propaganda," especially in view of the high level
of intelligence of editorial employees. Accordingly, the Regional Director con-
cluded that the objections to the conduct of the election did not raise substantial
and material issues and recommended that they be overruled.3
On January 6, 1960, the Respondent filed timely exceptions to the Regional
Director's report and recommendations and a demand for a hearing on its excep-
tions. On January 11, 1960, the Union also filed limited exceptions thereto and a
request to withdraw its challenges to the ballots of the three Washington Bureau
employees. On February 29, 1960, the Board issued its Decision and Direction
determining the issues raised by the exceptions filed by the parties. The Board
agreed with the Regional Director that Everett Collier, who admittedly became a
probationary supervisor before the election, lost his status as an eligible voter.
Accordingly, the Board sustained the challenge to Collier's ballot. In the absence
of any opposition by the Respondent, the Board granted the request of the Union
to withdraw its challenges to the ballots of the three Washington Bureau employees
and directed that they be opened and counted. In respect to the remaining chal-
lenge to Clayte Binion's ballot, the Board concluded that the Respondent's excep-
tions regarding Binion's disputed supervisory status raised substantial and material
issues of fact which could best be resolved by a hearing. Accordingly, the Board
directed that if after counting the ballots of the three Washington Bureau employees
Binion's ballot could affect the result of the election, a hearing should be' held to
resolve the issue as to Binion's status. Finally, in respect to the Respondent's ex-
ceptions based on the Union's letter of October 13, 1959, to the editorial employees,
the Board concluded that these exceptions did 'not raise any issues of fact or law
which would warrant reversal of the Regional Director's recommendation. Accord-
ingly, the Board overruled the objections and denied the Respondent's request for
a hearing thereon.
On March 7, 1960, pursuant to the Board's Decision and Direction, the ballots
of the three 'Washington Bureau employees were opened. Two of the ballots were
against the Union and one of the ballots was a blank and void. Accordingly, the
revised tally of ballots showed that there were 54 votes for the Union, 52 against
the Union, I void ballot and I'unopened challenged ballot.4
On March 7, 1960, after the Respondent learned of the revised results of the
election, its president, John T. Jones, Jr., by a written memorandum "to the staff,"
advised its employees of the said election results and stated that the Union would
"shortly" be certified by the Board as the "bargaining agent for the editorial depart-
ment" and would request negotiations for a contract, and that the Respondent
would refuse to bargain because that was the "only way" to obtain court review of
the Board's decision .5 Thereafter, on March 11, 1960, the Regional Director cer-
tified the Union as the exclusive representative of the employees involved. Accord-
ing to the uncontradicted and credited testimony of the Union 's agent , Christoffer-
son, on March 16, 1960, in an informal conference with Respondent's president,
he requested the Company "to recognize the certification the NLRB had issued in the
8In reaching this recommendation, the Regional Director relied in part on the fact that
on October 14, 1959, the Respondent had dispatched a telegram to its editorial department
employees disputing the validity of the Union's computation of the pay of San Antonio
Light reporters and the assertions in respect to the legal consequences attending a with-
drawal of pension benefits. ' .
4 Since Binion's ballot could not, therefore, 'affect the outcome of the election, it was
not opened and no hearing was held to determine his alleged supervisory status.
0 General Counsel's Exhibit No. 14.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guild's behalf and to bargain with the Guild for the people who had been involved
in the election." President Jones replied that the Guild knew why the Respondent
was refusing to bargain. Thereafter, on March 21, 1960, the Union formally re-
quested the Respondent to bargain with it. In response to this demand, Respond-
ent's President Jones signed and delivered to the Union a letter which had previ-
ously been prepared.6 In this letter, the Respondent stated that 'it ."must refuse to
recognize" the Board 's certification of the Union as the bargaining agent of its
editorial department employees , because:
(a) The Board's certification is invalid and void for each of the reasons
set forth in the Chronicle's objections to the election, exceptions and demand
for hearing served on the Guild;
(b) The certification- is ambiguous, because the inclusion or exclusion of
Clayte Binion is not resolved;
(c) The Chronicle has been arbitrarily and unlawfully denied a hearing
on the certification issues.
The letter also stated, "The Chronicle, therefore, refuses to bargain with the Guild
because of its good faith doubt that the Guild represents a majority of its em-
ployees and the invalidity of the Board's certification."
At the hearing in the instant case, the Respondent attempted to prove that the
Union had demanded bargaining for a unit which was more extensive than the
unit which had been stipulated and certified by the Board, and that, therefore, the
Respondent had not refused to bargain for the certified unit. In furtherance of this
objective, the Respondent introduced into evidence the payrolls of its editorial de-
partment for the time when the stipulation for certification upon consent election
was entered into, and when the election was conducted, upon which appeared the
names ofZeena G. Jackson, Thomas Rickard, and Ivy E. McLemore. However,
on the stipulated payroll which. the parties had appended to.,the stipulation for
certification upon consent election, these three names had been stricken by consent.?
The president of the Union testified that he believed that the excision was because
they were employed by Associated Press. Whether these three persons were em-
ployed by the Respondent in its editorial department or were employees of Associ-
ated Press,s 1 regard the Respondent's contention that the Union demanded bargain-
ing for a unit more extensive than that certified by the Board as without support
in the record. There was no testimony that the Union demanded to bargain for
these three persons. Indeed, the record affirmatively shows that their names were
not even mentioned or discussed by the Union or the Company at either of the
times that bargaining was demanded, and the record further shows that the Union
requested bargaining only *for the unit which, the Board had certified. Moreover,
the Respondent did not, at any time prior to the hearing herein, base its refusal to
bargain with the Union upon the alleged impropriety of the Union's demand for
bargaining. On the contrary, the record is clear and I find that the only reason
for the Company's refusal to bargain with the Union was to test the validity of the
Board's certification as stated in the Company's memorandum to its employees
dated March 7, 1960, and its letter to the Union delivered on March 21, 1960.
For all the foregoing reasons, I reject as without merit and as an apparent after-
thought,. the contention of, the Respondent that the Union's demand for bargaining
exceeded the unit covered by the Board's certification.9
Upon. the record herein, I find and conclude that at all times material herein,
the Union has been and now is the exclusive representative of all of the Re-
spondent's employees in a unit appropriate for purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, and other terms and condi-
tions of employment. Moreover, based on the Respondent's letter delivered to the
Union on March 21, 1960, I find and conclude that on and after the said date, the
Respondent has refused to bargain with the Union, and thereby the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act. I further find and conclude that by reason of its re-
fusal to bargain with the Union, the Respondent has also interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed in Section 7 of the
6 General Counsel's Exhibit No. 15.
' On the latter payroll the notation "A.P." is written alongside these stricken names.
6 I excluded from evidence the attempt of Respondent's Executive Sports Editor Peebles
to testify regarding the status of these three persons because he admitted that he did not
supervise them and had no way of ascertaining whether they worked for Respondent or
Associated Press.
9 The foregoing was the only issue concerning which the Respondent offered proof at
the hearing in this case.
MOLONEY ELECTRIC COMPANY 1253
Act, and -hag thereby engaged in and i's engaging in unfair labor practices ` within the
meaning of Section 8 (a)( I) 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 the operations of the Respondent described 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Houston Newspaper Guild , Local 113, of American Newspaper Guild, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. All employees in the editorial department of the Respondent 's Houston, Texas,
newspaper operations, excluding all other employees , guards, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
3. At all times since March 11, 1960, the Union has been and continues to be the
exclusive bargaining representative of all the employees in the aforementioned unit
for the purpose of collective bargaining within the meaning of Section 9(a) of the
Act.
4. By refusing , on and after March 21, 1960 , to bargain collectively with the
Union as exclusive representative of its employees in the aforesaid unit, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (5) of the Act.
5. By the aforesaid refusal to bargain collectively , the Respondent has interfered
with, restrained , and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Moloney Electric Company and Local 1 , International Brother-
hood of Electrical Workers, AFL-CIO, Petitioner . Case No.
14-RC-3780. March 7, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing and a. further hearing on remand were held
before John W. Noble, Jr., hearing officer.' The hearing officer's
1 On July 8, 1960 , the Board issued an unpublished decision and direction of election in
this proceeding , and on July 15, 1960, an order correcting that decision. Thereafter the
Petitioner filed a motion for clarification and the Intervenor filed a memorandum in oppo-
sition thereto. The Board, having duly considered these matters , on September 13, 1960,
issued an order in which it vacated its prior actions, denied the Petitioner 's motion to
clarify, and remanded the case to the Regional Director for further hearing.
In its original decision the Board had found , in essence , that there was a craft unit of
electricians that could appropriately be severed from the overall unit represented by the
Intervenor . The later actions of the parties indicated , in the opinion of the Board, that
130 NLRB No. 123.