Jackson Daily News, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1938

9 N.L.R.B. 120 (N.L.R.B. 1938)

In the Matter Of JACKSON DAILY NEWS, INC. and JACKSON PRINTING
PRESSMEN AND ASSISTANTS UNION No. 215
Cases Nos. C-437 and R-487.-Decided October 10, 1938
Newspaper Publishing Industry-Interference, Restrcuint, and Coercion: anti-
union statements ; engendering fear of loss of employment ; granting of wage
increases to forestall organization-Unity Appropriate for Collective Bargaining:
stereotypers , pressmen , and assistants ; eligibility for membership in only organi-
zation among employees ; community of interest-Representatives: proof of
choice : certificates of authorization-Collective Bargaining : refusal to recognize
union as exclusive bargaining agent; refusal to discuss proposed contract or
to make counterproposals ; employer ordered to grant union recognition as
exclusive representative-Conciliation: efforts at, by U. S. Department of Labor-
Investigation of Representatives : petition for, dismissed , in view of order to
bargain.
Mr. Samuel Lang, for the Board.
Mr. William H. Watkins, of Jackson, Miss., for the respondent..
Mr. Joe E. Wilson, of Pressmen's Home, Tenn., for the Union.
Miss Carolyn E. Agger, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On October 4, 1937, Jackson Printing Pressmen and Assistants Union
No. 215, herein called the Union, filed a petition with the Regional Di-
rector for the Fifteenth Region (New Orleans, Louisiana) alleging that
a question affecting commerce had arisen concerning the representa-
tion of the pressmen, assistants, and stereotypers employed by Jack-
son Daily News, Inc., Jackson, Mississippi, herein called the respond-
ent. On December 1, 1937, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Na.
tional Labor Relations Act, 49 Stat. 449, herein called the Act,
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended , ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice; and pursuant to Article III,
Section 10 (c) (2), and Article II, Section 37 (b), of the aforesaid
9 N. L. R. B., No. 20.
120
DECISIONS AND ORDERS 121
Rules and Regulations, further ordered that, for the purposes of hear-
ing, the representation case be consolidated with proceedings involv-
ing charges and amended charges which had been filed by the Union.
Upon charges and amended charges duly, filed by the Union, the
Board, by the Regional Director, issued its complaint dated Decem-
ber 2, 1937, against the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (1) and (5) and Section 2 (6) and -(7) of
the Act. A copy of the complaint, accompanied by notice of hearing,
was duly served upon the respondent and the Union. An amend-
ment to the complaint was duly served upon the respondent on Decem-
ber 7, 1937.
The complaint, as amended, alleged in substance, so far as here
material, that the respondent had attempted to discourage member-
ship in the Union by threats of loss of employment, by offers of
increases in wages for withdrawing from membership, by expres-
sions displaying hostility toward -union organization, and by the
questioning of employees concerning their "loyalty" to the respond-
ent, thereby interfering with, restraining, and coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act. The
complaint, as amended, further alleged that the pressmen, assistants,
and stereotypers constituted an appropriate bargaining unit; that
a majority of the employees in this unit had designated the Union
as their representative for purposes of collective bargaining, and that
the respondent had refused to bargain collectively with the Union.
The respondent filed an answer to the complaint, dated December
6, 1937, which was amended on December 8, 1937, denying the allega-
tions with regard to the unfair labor practices charged, alleging that
its business was intrastate in character, and praying that the com-
plaint be dismissed.
Pursuant to notice, a hearing was held at Jackson, Mississippi,
December 9 and 10, 1937, before Eugene P. Lacy, the Trial Examiner
'duly designated by the Board. The Board, the respondent, and the
Union were represented and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
produce evidence bearing upon the issues was afforded all parties.
In its answer the respondent prayed and during the hearing the
respondent moved for dismissal of the complaint upon the grounds
that the operations of the respondent had no such relation to com-
merce among the several States or foreign countries as to confer
any jurisdiction upon the Board; and that the respondent was never
notified that its employees had selected the Union to represent them.
The prayer and motion were overruled by the Trial Examiner.
During the hearing the Trial Examiner made several other rulings
.on objections to the admission of evidence. The Board has reviewed
122 NATIONAL LABOR RELATION'S BOARD
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed . The rulings are affirmed.
The respondent filed a brief dated December 17, 1937, relating to
the evidence and to the question of the Board's jurisdiction over the
cause.
On February 9, 1938, the Trial Examiner filed his Intermediate
Report in which he found that the majority of the employees in
the printing and stereotyping departments had designated the Union
as their representative for purposes of collective bargaining; that
the respondent had refused to bargain collectively with the Union
as exclusive representative of the employees in the alleged appro-
priate unit and that the respondent had interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed them
in Section 7 of the Act . The Trial Examiner recommended that
the respondent cease and desist from interfering with, restraining,
and coercing its employees ; and that the respondent recognize, and
bargain collectively with the Union as the representative of the
respondent 's employees in the press and stereotyping departments.
On February 25, 1938 , the respondent filed exceptions to the Inter-
mediate Report . The Board has considered these exceptions and
finds them to be without merit.
On March 26, 1938, the respondent , filed a motion for the resub-
mission of the cause to the Trial Examiner , alleging that prior to
the hearing it had not understood that the Union represented a ma-
jority of the employees or that the Union desired to bargain as to
any matter other than a closed-shop agreement ; that subsequent to
the hearing , the respondent met with the representative of the Union
and discussed wages, hours, and a closed-shop contract . On April 29,
1938, the respondent filed an amendment to its motion . The amend-
ment, after reserving the respondent's objection to the Board 's juris-
diction, stated that the respondent "is willing to deal with its em-
ployees collectively , and to recognize as exclusive bargaining agent
such representatives as its employees in said unit may designate. The
company is willing to recognize Joseph A . Wilson ( representative
of the Union ) as such representative ." The Regional Director
reports that the Union does not agree that the question of a closed-
shop agreement is the only point of difference between it and the
respondent , and that the Union contends that the respondent has
refused to bargain collectively with the Union or its , representatives.
Since the motion was filed subsequent to a full hearing with all
parties participating , we are of the opinion that the motion should
be denied . While prior to the hearing the respondent may have mis-
understood its duty under the Act, if it has since determined to bar-
gain collectively , it will not now be injured by an order to do so.
The motion , as amended , is therefore hereby denied.
DECISIONS AND ORDERS 123
'On September 27, 1938, a hearing for the purpose of oral argument
was had before the Board at Washington, D. C. Only the Union
.appeared. The respondent submitted a brief.
Upon the whole, record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation, engaged in the publica-
tion of a daily afternoon newspaper and a Sunday morning news-
paper in the city of Jackson, Mississippi. The daily circulation of
the newspaper is between 28,000 and 30,000, practically all of which
is confined to the State of Mississippi. The respondent's newspaper
carries news of local, national, and foreign affairs, local and national
advertising matter, special features, cartoons, and comic strips. Out-
of-State news is supplied by the United Press, to which the respond-
ent , is a subscriber, and by the Associated Press, of which the re-
spondent is a member. The news dispatches are delivered by these
organizations to the respondent's place of business by means of tele-
type machines located in the respondent's building and are there
picked up by reporters employed by the respondent. The Associated
Press, by its rules, is entitled to all local news which appears in the
Jackson Daily News. This local news is sent out by teletype by the
local representative of the Associated Press and amounts to an aver-
age of 1,300 words a day, according to the local representative's esti-
mate. The national advertising carried by respondent's newspaper
is procured for it by an agent which has its place of business outside
of the State of Mississippi. The sale of advertising service to na-
tional advertisers accounts for 12.38 per cent of respondent's total
Income, or $41,654.63.
Approximately 35 per cent of the respondent's total expenses are
incurred in the purchase of goods and services originating outside
the State of Mississippi. The cost of special features and the Asso-
ciated Press and United Press services amounted to $31,312.59, or 9.73
per cent of the total expenses incurred for the fiscal year ending
November 30, 1937. Feature and advertising materials are sent to
the respondent by wire, express, parcel post or through the regular
mail. The respondent purchases almost all of its raw materials,
newsprint, ink, metal, mats and blankets outside of the State at a
yearly cost of $80,566.55, or 24.10 per cent of the respondent's ex-
penses. The largest single item purchased outside of the State is the
newsprint, which is brought from Canada by rail. The respondent
purchases about 1,500 tons of newsprint a year, which cost $52,722.73
in the fiscal year ending November 30, 1937; freight on newsprint
amounted to $23,654:31, or 7.30 per cent of the total expenses of the
I
124 NATIONAL LABOR RELATIONS BOARD
newspaper. All of the ink used by the respondent is brought by
regular interstate truck lines from Louisiana to its plant.
The respondent employed seven men and a foreman in its stereo-
typing and printing departments (pressroom) in July 1937. At the
time of the hearing, the respondent employed eight men and a part-
time foreman.
II. THE ORGANIZATION INVOLVED
Jackson Printing Pressmen and Assistants Union No. 215 is affili-
ated with the International Printing Pressmen and Assistants Union
of North America and is a labor organization, admitting'to its -mem-
bership printing pressmen, their assistants, and stereotypers in the
respondent's plant.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Caleb Dortch, who ran an. engraving plant of his own, was also the
foreman of the respondent's pressroom. On July 27, 1937, the day
when an attempt was made by the Union to open negotiations with
the respondent for a union contract, Dortch called two employees,
Hudson and Mashburn, over to his engraving, plant. Dortch then
informed Hudson that the "trouble" they were having with the Union
was about to "get" their jobs and that if the matter were dropped,
Johnson, the respondent's business manager, "talked like" he would
give them a raise. Dortch also told the employees that Johnson was
very "bitterly against the Union." Hudson was a union member;
Mashburn was not. Two employees testified that several days later
Dortch reported to them that Johnson had said that "whenever a
union contract was placed" on his desk, "he would fire the entire
crew." At the hearing, Dortch denied making • this statement but
admitted that he had told Mashburn that Johnson was very much
opposed to a "union contract" and that if the agitation for one con-
tinued, he did not know what would happen.. Dortch further stated'
that he had told several employees that he feared that the fight for
union recognition was a losing one because of Johnson's attitude. In
view of Dortch's admissions,,we are satisfied that he made substan-
tially the statement attributed to him and we so find.
Although at the hearing Johnson denied that Dortch had informed
him as to the attitude of various employees toward, the Union,
Dortch admitted that he had found out from the various employees,
whether they would take the side of Johnson or that of the Union,
if decisive action became necessary, and that he had reported their
attitudes to Johnson. Dortch testified that his purpose in so doing
was to "iron out all of the difficulties in the press room." Dortch
frankly stated that another method employed by the respondent to
DECISIONS AND ORDERS 125
iron out the difficulties was the granting of raises to certain of the
employees. Wage raises had been promised to some of the employees
for sometime in the future, but they were granted sooner than was
originally contemplated, with the admitted purpose of discouraging
the men from pressing for a union contract.
Dortch stated at the hearing that Johnson did not object to em-
ployees carrying union cards so long as they did not attempt to use
them in collective bargaining. It was this attitude of Johnson's
which Dortch attempted to convey to the employees. The respond-
ent's actions in warning its employees that their jobs might be en-
dangered if they persisted in pressing for a contract, in indicating
that if the union activity was stopped a raise might be forthcoming,
and in fact granting a wage increase for that express purpose, were
intended to discourage union membership and collective bargaining.
From the facts set forth above, we find that the -respondent has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
B. The refusal to bargain collectively
1. The appropriate unit
The Union alleges that the unit appropriate for collective bargain-
ing consists of the pressmen, assistants, and stereotypers employed
in the respondent's plant. Evidence was introduced to show that the
pressmen, assistants, and stereotypers worked closely together in get-
ting out the paper after it had been set up in the composing room ;
that some employees worked as both pressmen and stereotypers; that
Dortch, the foreman, was not considered a part of the bargaining
unit, and that the pressmen, assistants, and stereotypers were eligible
for membership in the Union. The respondent denied in its answer
that these employees constituted an appropriate bargaining unit but
made no alternative suggestion and introduced no evidence in support
of the denial.
We find that the pressmen, assistants, and stereotypers,_ excluding
the foreman, constitute a unit appropriate for the purpose of collec-
tive bargaining, and that said unit will insure to employees of the
respondent the full benefit of their right to self-organization and
collective bargaining and otherwise effectuate the policies of the Act.
2. Representation by the Union of the majority in the appropriate
unit
In July 1937, the respondent employed seven pressmen and stereo-
typers in its plant. It was not disputed, and there was considerable
evidence that, of these, three were members of the Union in July 1937
and for sometime previous thereto. On July 26, 1937, three other
employees, Mashburn, Abraham, and Carithers, signed certificates of
126 NATIONAL LABOR RELATIONS BOARD
authority, authorizing the Union to represent them in bargaining
with the respondent. The certificates were introduced in evidence
and the employees testified that they had signed them. About a
month thereafter, another man was given full-time employment in
the respondent's pressroom and he became a union member.
At the hearing, three employees testified that they no longer desired
the Union to represent them. One of the employees, Mashburn,
talked to counsel for the Board on December 6, just prior to the
hearing, and informed him that he still desired the Union to repre-
sent him. Two nights later, Mashburn was told by the foreman to
go to a meeting in the office of counsel for the respondent, at which
Johnson, the respondent's business manager, was present. Mash-
burn testified, on cross-examination, that it was then he decided that
he no longer desired the Union to represent him. We are unable to
give any weight to a decision made by an employee under such cir-
cumstances and therefore disregard the repudiation. The repudia-
tion of the Union by the other two men is also open to some ques-
tion as to whether they had acted of their own free will, but since
their action can have no effect upon the question of a majority, it
is not necessary to discuss it.
We find that on July 26, 1937, and thereafter, the Union was the
duly designated representative of the majority of the employees in
the appropriate unit, and, pursuant to Section 9 (a) of the Act, was
the exclusive representative of all of the employees in such unit for
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusal to bargain
On July 28, 1937, Joe Wilson, the union representative, telephoned
Johnson and asked him for an interview. Johnson replied that he did
not know what there was to talk about but agreed to see Wilson
the following day. Wilson then mailed a letter to Johnson which
stated that Wilson would like to discuss an enclosed proposed con-
tract covering hours, wages, and working conditions. Johnson was
disturbed by the telephone conversation and went to see one Wallace,
the State organizer for the Union, whom he had known for some time.
Johnson informed Wallace that Wilson was attempting to organize
his pressroom in order to obtain higher wages, which the respondent
was unable to pay. Johnson further stated that he did not like
outsiders butting in and dictating. Wallace told Johnson that lie
was unable to assist him.
On July 29 Johnson met with Wilson. Wilson's letter and the
proposed contract had not arrived at the time of the interview but
came later during the afternoon. Wilson asked Johnson whether
he had seen the contract and informed him that the Union represented
DECISIONS AND ORDERS 127
a majority of the employees in the press and stereotyping divisions,
and asked Johnson to recognize the Union as the collective bargain-
ing agency for them and to meet with a committee of the employees
to discuss wages, hours, and working conditions. Johnson refused to
recognize the Union or meet with the employees, stating that he
would not "sign anything" and that he had "nothing to talk about"
with the employees' committee. Wilson told Johnson that he did
not know whether or not he could sign the contract until he saw it.
Johnson replied that "if it is a contract which calls for the unioniza-
tion of my press room I will tell you now I will not do it." Johnson
stated at the hearing that he did not even read Wilson's letter and
the proposed contract when they arrived that afternoon, because 'he
``wasn't interested."
A few days later, Wilson, having been convinced that he could
make no headway with the negotiations, referred the matter to the
Director of Conciliation of the Department of Labor. The repre-
sentative of the Department of Labor was unable to arrange a
settlement of the dispute and informed Wilson that the respondent's
officials "couldn't reconcile themselves to deal with" the Union. A
further attempt at negotiation was made about 2 weeks later, when
the president of the local again asked Johnson to recognize the Union
as the bargaining agent for the employees, since a majority of them
had so designated it. Johnson again refused.`-
Johnson denied that he had been informed, by the employees or by
Wilson, that a majority of the employees had designated the Union
as their representative for collective bargaining and said that he
did not know this to be a fact. However, both Wilson and the presi-
dent of the, local testified that they had so informed Johnson, and
we find that Johnson was so informed.
Both at the hearing and in his conference with Wilson, Johnson
indicated that his primary objection to entering into a contract with
the Union was that he was opposed to a closed shop. While the Act
does not compel an employer to enter into a closed-shop agreement,
or to agree upon any particular terms, it does require him to accept
the procedure of collective bargaining, that is, to negotiate with the
honest intent to reach a collective agreement. In his interview with
Wilson, Johnson not only refused to consider the proposed closed-
shop provision but also failed to indicate that he might consider a
contract which did not contain such a provision or to offer any
IIn its brief , the respondent questions the authority of the president of the local to
represent the Union, and further states that neither he nor Joe Wilson gave the respondent
authentic notice that they were duly authorized agents of the Union. The record is clear
that Wilson, at least, identified himself as a representative of the Union and that the
authority of the two individuals to represent the Union was not questioned by the re-
spondent. We find it unnecessary to pass upon this contention , however, since the re-
spondent 's position throughout the entire proceeding has not been that it refused to bar-
gain because it was not sure that it was dealing with duly authorized agents, but rather
that it was willing to bargain but was unwilling to sign a closed -shop contract.
128 NATIONAL LABOR RELATIONS BOARD
counterproposal . The evidence clearly establishes that the respond-
ent's attitude goes beyond an unwillingness to sign a closed-shop
agreement . The respondent 's actions throughout the negotiations,
particularly the refusal to meet with a committee of the employees,
and the refusal even to discuss a closed-shop contract , do not evidence
a serious attempt . upon the part of the respondent to come to an
agreement with the Union.
We find that the respondent , on July 29, 1937 , and at all times
thereafter , refused to bargain collectively with the Union as the
representative of its employees in the appropriate unit in respect to
rates of pay , wages , hours of employment , and other conditions of
employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed 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.
THE PETITION
In view of the findings in Section III-B above as to the appro-
priate unit and the designation of the Union by a majority of the
respondent's employees as their representative, it is not necessary to
consider the petition for certification of representatives. Conse-
quently, the petition for certification will be dismissed.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW .
1. Jackson Printing Pressmen and Assistants Union is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. The pressmen, assistants, and stereotypers employed by the re-
spondent, excluding the foreman, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
3. Jackson Printing Pressmen and Assistants Union was on July
26, 1937, and at all times thereafter has been the exclusive repre-
sentative of all employees in such unit for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Jackson Printing Press-
men and Assistants Union as the exclusive representative of the em-
ployees in the above-stated unit, the respondent has , engaged 'in and
DECISIONS AND ORDERS 129
is engaging in unfair labor practices , within the meaning of Section
8 (5) of the Act.
5. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of the
Act, has engaged in and is engaging in unfair labor practices , within
the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent , Jackson Daily News, Inc., Jackson , Mississippi , and its
officers, agents , successors , and assigns, shall:
1. Cease and desist :
(a) From refusing to bargain collectively with Jackson Printing
Pressmen and Assistants Union as the exclusive representative of the
pressmen , assistants , and stereotypers employed by the respondent,
excluding the foreman;
. (b) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Jackson Printing Press-
men and Assistants Union as the exclusive representative of the
pressmen , assistants , and stereotypers employed by the respondent,
excluding the foreman , in respect to rates of pay, wages , hours of
employment , and other conditions of employment;
•(b) Post immediately, and maintain for a period of at least thirty
(30) consecutive days from the date of posting, notices to its employees
in conspicuous places throughout its pressroom , stating that the
respondent will cease and desist as aforesaid;
(c) Notify the Regional Director for the Fifteenth Region in writ-
ing within ten ( 10) days from the date of this Order what steps the
respondent has taken to comply herewith.
And it is further ordered that the petition for investigation and
certification of representatives be, and it hereby is, dismissed.
MR. DONALD WAKEFIELD SMITH took no part in the consideration of
the above Decision and Order.