Local 235, Lithographers

National Labor Relations Board - Board Decisions

Dec 28, 1970

187 N.L.R.B. 490 (N.L.R.B. 1970)

490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 235, Lithographers and Photoengravers
International Union and Henry Wurst, Inc.
Lithographers & Photoengravers International Union
Local 235 and George W. Gates Co., Inc.
Lithographers & Photoengravers International Union
Local 235 and Unruh-Pummill Mailing Service,
Inc. Cases 17-CB-702, 17-CC-374, and
17-CC-375
December 28, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 31, 1970, Trial Examiner John F. Funke
issued his Decision in the above-entitled proceedings,
finding that the Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He further found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal
of those allegations. Thereafter, the Respondent, the
General Counsel, and the Employer filed exceptions
to the Decision and supporting briefs. The Employer
also filed a Motion to Strike Respondent's Exceptions
to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 Trial
Examiner's Decision, the exceptions,' the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified below.
1. We agree with the Trial Examiner's finding that
by the various conduct set forth in the Trial
Examiner's Decision, the Respondent violated Sec-
tion 8(b)(1)(A) of the Act. The Respondent contends
that it should not be held responsible for such
behavior because it took all possible steps to repudiate
the unlawful conduct which occurred. These steps
I The Employer has moved to strike Respondent 's exceptions on the
ground that they do not comply with Section 102 46 of the Board's Rules
in that they do not "designate by precise citation of page the portions of
the record relied on and the supporting brief does not contain any specific
page reference to the transcript " Section 102 46 states that any exception
which does not comply with the requirements of that section "may be
disregarded " Although Respondent 's exceptions do not fully comply with
187 NLRB No. 63
consisted generally of oral and written instructions to
strikers not to commit acts of violence. Such instruc-
tions are not sufficient to absolve a labor organization
of responsibility for acts of violence committed by
pickets on the picket line and other agents of the
union during the course of an authorized strike.2
2. We agree with the Trial Examiner's finding that
the Respondent did not violate Section 8(b)(4)(i) and
(ii)(B) of the Act.
Henry Wurst, Inc., herein called Wurst, is engaged
in printing and lithographic work. George W. Gates
Company, herein called Gates, is engaged in perform-
ing bookbinding services for printers and lithogra-
phers. At the time the unfair labor practice charges
were filed Gates was a separate corporation. Subse-
quently it was merged with Wurst and became a
division of the latter. Unruh-Pummill Mailing Serv-
ice, Inc., herein called Unruh, is engaged in a mailing
service. Wurst and Unruh are owned by members of
the Wurst family; Gates was similarly owned until it
was dissolved and merged into Wurst.
Wurst, Gates, and Unruh occupy separate sections
of a single U-shaped building. Material is printed in
the Wurst section, and moved successively to the
Gates and Unruh sections for binding and mailing.
Gates and Unruh also do bindery and mailing work
for employers other than Wurst. Similarly, not all of
Wurst's binding and mailing work is performed by
Gates and Unruh. However, 75 percent of Wurst's
bindery and mailing work is done by Gates and
Unruh. Such work for Wurst comprises a somewhat
smaller proportion of the total business of Gates and
Unruh, respectively. Wurst advertises that the three
operations are performed under one roof. It also holds
itself out to the public as "specialists in Direct Mail,
dealer help publication printing" which is in a
"central location . . . for fast, economical, nation-
wide distribution whether by mail, rail, truck or
plane."
In order to insure a smooth flow of work and to
correct any difficulties, production supervisors of
Wurst, Gates, and Unruh meet once a week to
schedule production operations, to check on work
flowing through the building, and to determine
whether additional Wurst work should be given to
Gates and Unruh or to other subcontractors.
Notwithstanding the facts that the Companies are
commonly owned, are located in the same building,
and their operations, as the General Counsel con-
cedes, "tend to resemble continuous flow of prod-
the requirements of the rule , we have decided not to disregard them as the
Employer has not shown prejudice as the result of the deficiency, and we
have found the exceptions to be without merit
2 United Mine Workers of America (Solar Fuel Company), 170 NLRB
No 178, Teamsters Local 783, et al (Coca-Cola Bottling Company of
Louisville), 160 NLRB 1776
LOCAL 235, LITHOGRAPHERS 491
uction," the General Counsel contends that Gates and
Unruh are (in respect to Wurst) neutral "other
persons" as those words are used in Section 8(b)(4)(B)
of the Act and therefore are entitled to the protection
of that section of the Act in a dispute between Wurst
and its employees. In support of the claim that they
are "other persons," Gates and Unruh refer to the
facts that they maintain separate bookkeeping sys-
tems, have separate supervision, and do not inter-
change employees, and their managers have complete
authority in determining labor policies and running
day-to-day operations. Based on the contention that
Gates and Unruh are neutrals, the General Counsel
contends that the picketing of the common premises
was unlawful because it was directed not only at the
employees of Wurst, the primary Employer, but also
at the employees of Gates and Unruh, alleged
neutrals.
The Trial Examiner found that "Wurst, Gates and
Unruh constituted a single employer and that no
neutral employer or other person was involved in the
dispute." We agree that Gates and Unruh are not
neutrals. Wurst, Gates, and Unruh are engaged in an
integrated , straight line operation on common premis-
es, i.e ., Wurst does the printing, Gates, the binding,
Unruh, the mailing . On the basis of these facts, we
find that Gates and Unruh are not neutrals or wholly
unconcerned persons within the meaning of Section
8(b)(4)(B) of the Act.3 We therefore conclude, as did
the Trial Examiner, that by picketing the common
premises occupied by Wurst, Gates, and Unruh, the
Respondent Union did not violate Section 8(b)(4)(B)
of the Act.4
ORDERS
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Local No. 235, Lithographers and
Photoengravers International Union, its officers,
agents, and representatives, shall take the action set
forth in the Trial Examiner's Decisions
It is hereby further ordered that the complaint be,
and it hereby is, dismissed insofar as it alleges that the
Respondent violated Section 8(b)(4)(i) and (ii)(B) of
the Act.
3 National Union of Marine Cooks (Irwin-Lyons Lumber Company), 87
NLRB 54, 56, see Warehouse Union Local 6, ILWU (Hershey Chocolate
Corporation), 153 NLRB 1051, 1061 Cf Bachman Machine Co v N L R B,
266 F 2d 599, 605 (C A 8)
4 The present case is readily distinguishable from American Federation of
Television and Radio Artists (Hearst Corp), 185 NLRB No 26, Los Angeles
Newspaper Guild (Hearst Corp), 185 NLRB No 25, and Miami Newspaper
Printing Pressmen (Knight Newspapers, Inc), 138 NLRB 1346, enfd 322
F 2d 405 (C A D C ), where the Board held that a labor dispute at one
autonomous division of a single company or commonly controlled
companies did not excuse picketing at other autonomous divisions located
elsewhere in these cases , there was no integration of operations of the
separate divisions The instant case is similarly distinguishable from
Bachman Machine Company v N L R B, 266 F.2d 599 (C A 8), and J G
Roy and Sons Company v N L R B , 251 F 2d 771 (C A I), where the courts
held that two family owned corporate employers engaged in different lines
of business at different locations were not a single employer for purposes
of Section 8(b)(4)(B ) because there was common ownership and control
and one company was a substantial customer of the other Again there was
the lack of integrated operations present in this case The court noted in
Bachman that that case would have presented a different problem "if the
two companies were engaged in an integrated operation , as in the Irwin-
Lyons Lumber Company case , 87 NLRB 54 " (supra at 605) Drivers,
Chauffeurs and Helpers Local No 639, Teamsters (Poole's Warehousing), 158
NLRB 1281 , also cited by the General Counsel is similarly inapposite In
that case the Board held that commonly owned warehouse and trucking
operations carried on respectively at two different locations were not so
closely interrelated or allied with each other as to justify picketing of the
warehouse in a labor dispute involving the trucking operation and its
employees
5 The Employer excepts to the Trial Examiner's failure to require the
Respondent to "backpay those persons who , as a result of the
[Respondent 's] illegal activity , lost employment or who were coerced
into terminating their employment with Wurst " We find no meet in this
exception In United Furniture Workers of America (Colonial Hardwood
Flooring Company, Inc), 84 NLRB 563, 565-566, the Board , although
finding that a union had violated Section 8(b)(I)(A) by using coercive
means to prevent nonstrikers from working, held that it was without
statutory power to require the labor organization to indemnify the
employees for any loss of earnings suffered as a result of the unlawful
conduct
6 In footnote 21 of the Trial Examiner's Decision substitute "20" for
"10" days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon charges filed in
Case 17-CC-374, on July 30, 1969, by George W. Gates
Co., Inc., herein Gates, and a charge filed in Case
17-CC-375, on July 29, 1969, by Unruh-Pumpill Mailing
Service, Inc., herein Unruh, and a charge filed in Case No.
17-CB-702, on July 30, 1969, by Henry Wurst, Inc., against
Local Union No. 235, Lithographers and Photoengravers
International Union, herein the Respondent, the General
Counsel issued a complaint, and amendment to the
complaint and an order consolidating the cases alleging
Respondent violated Section 8(b)(4)(i )(u)(B) and Section
8(b)(1)(A) of the Act. The answer of Respondent denied the
commission of any unfair labor practices.
This case, with all parties represented, was heard by me at
Kansas City, Missouri , on April 7 and 8, 1970. At the
conclusion of the case the parties were given leave to file
briefs and briefs were received from the parties on May 14,
1970.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following:
FINDINGS
I THE BUSINESS OF THE COMPANIES
Gates, at the time the charges were filed was a Missouri
corporation which, on September 30, 1969, merged with
Wurst and became a division of Wurst , operating under the
trade name of George W. Gates Company. Gates is
engaged in performing bookbinding services for printers
and lithographers at 1345 Saline , North Kansas City. It
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchases goods and services valued in excess of $50,000
annually directly from places outside the State of Missouri.
Unruh is a Missouri corporation operating a mailing
service at 1345 Saline, North Kansas City, Missouri. It
performs services for customers, who, in turn, purchase
goods and services valued in excess of $50,000 annually
directly from places outside the State of Missouri.
Wurst is a Missouri corporation engaged in the printing
and lithography industry at 1331 Saline, Kansas City,
Missouri. It purchases goods and services valued in excess
of $50,000 annually directly from places outside the State of
Missouri.
Gates, Unruh, and Wurst are engaged in commerce
within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Evidence
1. Violations of section 8(b)(1)(A)
The collective-bargaining contract between Wurst and
the Respondent expired April 30, 1969 i, and on July 1
Respondent struck Wurst.2 Incidents stemming from this
strike are the grounds for the allegations of violations of
8(b)(1)(A)•
Rubin DePeralta, employed by Wurst as a strike
replacement in mid-July, testified that on July 24 Robert
Dickens, assistant to the president of Respondent, visited
him at his home. According to DePeralta, Dickens, who
knew DePeralta from another job, asked him if he knew
there was a picket line at Wurst, told him that he did not
want to see DePeralta get hurt and that he (Dickens) could
not control Respondent's 900 members. Dickens told him
he might be pulled off the road one night and get his brains
knocked out. Dickens added that things might get rough
and that the Wurst employees were not as violent as
Respondent's other members and asked him for the names
and addresses of other employees then working so he could
give them the same advice . DePeralta also testified that on
November 5 Dickens walked across one of the plant
driveways as DePeralta was approaching and jumped in
front of the car, almost causing DePeralta to hit him.
On examination by counsel DePeralta testified that on
the second day of his work pickets shouted obscene epithets
at him as he was leaving and threw rocks at the car in which
he was leaving.
Dickens testified that on his visit to DePeralta's home he
asked him not to work there and when DePeralta
mentioned that he had been followed home he told him the
1 Unless otherwise noted all dates refer to 1969
2 When the strike started picket lines were set up for the around-the-
clock duty on 4-hour shifts. A picket captain was in charge of each shift
and about six or seven pickets were on duty See G.C Exh 2
3 1 believe that portion of the testimony quoted which reads "not to be
militant" is an error on the part of the reporter It does not effect the
findings made herein
Respondent wanted a peaceful strike, but could not control
900 members.
Ronald Betteron testified that he had been employed by
Wurst as a pressman, went on strike on July 1 and returned
to Wurst in December. He served as a picket on a 4-hour
shift and was instructed by Harold Larso, Respondent's
president, "Not to be militant, not to be playing around,
not to be playing baseball or football, to look after it and to
be militant in the driveways." 3 The pickets were instructed
to walk back and forth across the driveways carrying signs
and also noting the license numbers of the cars of Wurst
employees. The purpose of notations was to let the
strikebreakers know their names and addresses would be
known to Respondent. Betteron attended union meetings
during the strike period which were addressed by
International officers as well as Larson and at which the
members were told to call the strikebreakers at night simply
to harass them. 4 Betteron made one telephone call to a
strikebreaker named Hatfield and hung up when he
answered. Betteron stated he had thrown nails in Wurst's
driveways but had never been instructed to do so.
Gary Mansur testified that he had been employed in the
pressroom at Wurst, had gone on strike on July 1 and
returned to work in November. He had walked the picket
line and had attended union meetings . At one of these
meetings Larson advised them to make telephone calls to
employees who were working and had been present at a
restaurant when Betteron called Hatfield. He also testified
that the pickets were instructed to give the Wurst employees
a "hard time" when they were leaving the plant; 5 that the
pickets would follow them in cars and take their license
numbers. He also told another employee he might have his
head beaten in. After he returned to work a can of paint
remover was thrown on the car in which he was riding.
Nails were thrown in the driveways at times and rocks were
thrown at the parked cars of Wurst employees at times .6 He
never saw guns or clubs on the picket line nor did he see
any pictures taken by the strikers. On one occasion human
waste was placed on the doorknobs of the Wurst building.
The picket captain was asleep when this was done.?
Harry Fisher, foreman at Wurst, testified that he drove to
the plant on July 7 to go to work. His testimony as to what
happened reads:
A. At that particular time I was riding with my
sister-in-law who worked at Selby Carpet Company
over on Taney and she let me out at the center gate at
the entrance and, as I walked up to the line, naturally,
there were approximately four pickets standing there.
One of them was Bob Wysong who was standing there
with a 2 by 2, oh, by approximately 4-1/2 feet long. He
stepped up in front of me and told me not to go in the
plant. Then the pickets from the other two gates started
drifting up to where I was-Bob was standing in front
of me-and my sister- in-law, when she saw this, backed
up. She wanted to take me in. I said , "No, there are not
4 Betteron also testified that Larson and Dickens told the members not
to make such calls.
5 The pickets complied with this instruction by shouting obscenities and
threats at the strikebreakers
B This was not done pursuant to any instructions received from Larson
or Dickens
I This incident was not alleged in the complaint.
LOCAL 235, LITHOGRAPHERS
enough pickets on this line to keep me out of there." So
Bob told me, he said, "I wouldn't go in there if I was
you because it wouldn't be healthy." I said, "Bob, I am
going to give you three reasons why I am going in there.
First of all", I said "it is cooler inside, and", I said
"second, I am Harry Fisher, and", I said, "third, I
wasn't in the union before this strike happened and I
am not union now."
Q. (By Mr. Hurley) What happened at that time?
A. I was standing there with a stick in front of me
and then, of course, I told him to move out of my way
because I was going on in and go to work.
Q. Did you eventually go in?
A. Yes, he moved out of the way and I walked on
in.
Steve Patsch, employed by Wurst, testified that when he
drove to work on July 23 two pickets walked in front of his
car and one of them jumped on the hood. He drove on at
about two miles an hour and the picket jumped off and
kicked his car. He identified this picket as Ron Betteron.
(Betteron, a witness for the General Counsel, could not
recall the incident.) He also testified that he was told he
could have four of five flat tires. On Sunday, July 27, Patsch
received word from his father to call Dickens. He called
Dickens, admitted he worked at Wurst, and was told that
he could put himself in jeopardy by working there and that
while they (union representatives) preached nonviolence to
their members they could not control them. Patsch told
Dickens he would quit his job and Dickens told him he
would not be harassed at the gate. The next morning, after
he told the pickets he was going in to quit, he was passed
without incident.
Dickens testified that he had a talk with Patsch's father
and told him he (Dickens) would appreciate it if Patsch did
not go to work since the plant was on strike. Dickens did
not testify to any conversation with Patsch.
Gary Coe testified that he applied for work at Wurst on
July 25 and that when he left the plant he was followed by a
pickup truck to the Dispatch plant where he was working at
the time. Later a man whom he identified as Henry
Mansur, an employee at Wurst, came to the plant and
asked him if he was going to go to work for Wurst. Mansur
asked him if he knew there was a strike at Wurst and told
him "there had been some guys beat up down there." 8 As to
the car which had followed Coe to the Dispatch Mansur
said the occupants (unidentified) might have been drinking
and might be militant. Mansur also told him he (Mansur)
was doing picket duty at Wurst and that they (the pickets)
harrassed the strikebreakers and called them names; that
there were 900 members of Respondent and some were
wilder than others. Mansur was not called as a witness.
John Jurgen testified that on or about July 29 a picket
struck his car with the back of his hand and that the pickets
called him a scab. (Jurgen did not deny that he was
scabbing at the time.)
James Walton testified that he worked as a flyboy for
Wurst in July and August. He testified to an incident on
August 12 as follows:
B There is no evidence in the record that any physical violence, in the
nature of a "beating up" of strikebreakers, took place at the Wurst plant
9 The Charging Party offered no testimony, rejected, that Thomas
493
A. I don't know his name, one day I was on my way
to work, one of the employees, he didn't want to go
through the driveway and cause any trouble so he led
me out up by Nationwide Paper Company. I was
walking on my way down toward the north driveway.
One of the pickets who had on shorts called to the other
pickets down toward that driveway. When I got down
there he asked me where was I going. I told him I was
going to work. He says, "You are not being too smart. I
wouldn't go to work if I were you." I told him, "Well,
when I started I didn't know they were on a strike and it
wasn't my fault they were on a strike." He then said,
"Why don't I talk to Harold Larson of the union," that
he would take me out to dinner and get me ajob with a
company that had a good union. He gave me Harold
Larson's phone number and I told him I would call him.
At that time another fellow, a short, dark-haired
fellow, told me I should think it over because if I didn't
something bad might happen to me, and then he
showed me a knife with a blade about nine or ten inches
long.
Walton managed to push past the pickets and got into the
plant without further ado. The only two pickets Walton
could identify were Gary Mansur and Ron Betteron.
Neal Kennedy testified that he was occasionally followed
by pickets in a Buick Riviera as he left work and would
have to go 40 or 50 blocks out of his way to lose them. He
also testified that on several occasions, the pickets, as he
drove through to work, would hold 2 inches x 2 inches
sticks in a threatening fashion and warn him that he had
better not go in and that he could be hurt. On one morning
a picket threw a lighted cigarette between the rubber shield
and the window glass on the passenger side of his car.
Larry Thomas testified that he was employed part-time
by Wurst in July and that his employment was probationar-
y. On July 22 as he drove to work he observed a picket in
the driveway taking pictures but he went right in. As he left
the parking lot on that day a picket told him he had better
keep his windows rolled up or he would be sorry and added
that he would knock his (Thomas's) head in.9 As a result of
this harassment, Thomas resigned his employment with
Wurst, although he was never actually assaulted by anyone.
Steve Alexander testified that he went to work for Wurst
about August 1 and that one day when he went to work on
his motorcycle a picket shouted to him that he should take
it in with him because when he returned it would not be
there and that when he came -it he should wear his helmet
because they (the pickets) would run him into a brick wall.
As he was coming out the south driveway that night a
picket hit him on the head with a broomstick. (The record
does not indicate whether he was wearing his helmet.
Presumable he was.)
Wayne Altenburg testified that he started to work for
Wurst in July and that as he was leaving work on July 24 a
picket took down his license number and that on that
morning one of the pickets told him his wife and children
might wind up dead. He also received telephone calls at
home in the middle of the night (anonymous) telling him
would have continued his employment had it not been for these threats
and suggested that Thomas was entitled to backpay from the Respondent
for any loss of wages suffered as a result of Respondent's coercion.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had better not go to work the next day. Sometimes
he received no message at all, the caller simply hung up.
Thomas Cunningham testified that he was working for
Wurst on December 3 when he and two other employees
left the plant . His car was followed by Ron Betteron and, in
another car, by Rudy Galistel. Both cars followed him so
closely that two accidents were narrowly averted. The
pursuers finally dropped the chase at Kansas City.
At the conclusion of Cunningham 's testimony General
Counsel's Exhibit 4 was offered and received over the
objection of Respondent 's counsel . This document reads:
L.P.I.U. LOCAL 235
913 Tracy Ave.
Kansas City, Mo.
SHOP CHAIRMAN - Please post on your plant
bulletin board or wherever permitted to do so.
TO ALL L.P.I.U MEMBERS:
The following are in plant cabs at Henry Wurst, Inc.,
who were already employees of the company that are
trying to work on Litho production work.
PRESS ROOM
Jack Wray (Pressroom
supervisor-Former
Member also brought his
son in)
Al Arnold, Sr. (Vice President of Sales)
Herb Taylor (Salesman-Former ITU
member)
Tom Cunningham (Salesman-Litho
probationary employee
prompted to the office)
Charles Robinson (Maintenance Supervisor
who also brought his son
in)
Leonard Ladd (Maintenance Foreman
who also brought his son
in. Former ITU and
Railroad card holder.)
Red Holmes (Traffic Controller)
Chuck Jungers (Bowers Ink in plant, man
paid by Bowers Ink
Company in Chicago)
Don't Buy Bowers Ink
H. R. Wurst (Company Vice
President--Gladstone City
Councilman)
John Wurst (Company President)
Henry E Wurst (Chairman of the Board)
PLATE ROOM
Bill George (Prep Supervisor)
Mike Mullins (Student-Son of Bernard
L. Mullins, M.D. North
Kansas City)
STRIPPING
Dan Davis (Company Officer)
Vickie Hoye (Office Accounting Clerk)
Lee Wilhite (Quality Control)
There is obviously only one craftsman in the entire
bunch and it takes more than that. The company
normally has 7-8 press crews and is attempting to run
with 1-2 crews because they have only one pressman
(Jack Wray).
If you know any of these above listed in plant scabs, let
them know what you think about this and the fact that
the company is trying to take away what has been
negotiated over the last twenty years along with only
offering substandard increases.
FRATERNALLY,
HAROLD R. LARSON,
PRESIDENT
LOCAL 235, L.P.I.U.
John Wurst, president of Wurst, testified that he saw
Robert Wysong, a picket, throw nails into the south
driveway leading to the Wurst parking lot. He identified the
nails as 2-inch roofing nails which had been used by the
company. He stated that nails were frequently thrown in
the driveways by pickets and that Wurst had costs of about
$700 for repairing flats for employees' cars.
For the Respondent Harold Larson, its president,
testified that on November 20 Respondent issued written
instructions to its pickets which were stapled to the back of
its picket signs. These instructions 10 (Resp . Exh. 1) read:
INSTRUCTIONS TO PICKETS
All pickets are directed to carefully follow these
instructions.
1. You are only to picket in the area that has been
assigned to you.
2. You are particularly warned not to make any
statements to anyone. You are absolutely forbidden to
request that anyone stop working or not make
deliveries.
3. You must keep silent and answer no questions of
suppliers, employees or anyone else.
4. You are not to block ingress and egress to the plant
and you are not in any way to interfere with the
entrance to or work of any employee at the plant.
5. All pickets are directed to peacefully and silently
patrol the area assigned to them . Pickets are to keep
walking at all times in the area and they are not to wave
picket signs at anyone or anything.
6. An attempt may be made by employees or others to
involve you in an argument. Keep silent and keep
walking. If someone starts trouble , you must not
10 The instructions were issued following a local court injunction
enjoining unlawful conduct on the picket line
LOCAL 235, LITHOGRAPHERS 495
become involved in a fight. Don't fall into the
company's trap.
7. In the event the police appear, you are to speak to
them respectfully. If they ask you about the purpose of
the picketing, you are to simply advise them that you
are on strike against the Wurst Printing Company. You
are to say nothing more. You are to comply with any
orders or instructions that the police may give to you.
After you have complied with their instructions,
immediately notify your picket captain or the represent-
ative of the local union of what the policy said or any
instructions that they gave.
8. If something comes up for which you are not
prepared, stop picketing and contact your union
representative and await instructions.
In addition, Respondent's counsel, Robert S. Fousek,
instructed the pickets to lawfully and peacefully picket, not
to throw nails or anything else and not to block ingress and
egress to and from the plant. At a shop meeting set up on
July 23 they were told not "to use any verbal language" to
employees entering or leaving the plant and not to harass
employees by telephone.
On cross-examination Larson stated he drove to the
picket lines on several occasions to observe how it was
being conducted and that he talked to the pickets, telling
them to walk across the driveways but not to block them.
He did instruct the pickets to follow employees as they left
the plant and to take their license numbers. He did not
instruct the pickets to take pictures. He also told his
members the Union would post bonds for members who
were arrested.
This, I believe, summarizes the testimony relevant to the
8(b)(I)(A) charges. I have not included the testimony of
Henry Wurst relating to a day on which the plant area was
flooded and a picket placed a sign over a drain which had
been cleared, thereby again blocking the drain. I do not see
that this establishes either restraint or coercion of
employees
2. Conclusions as to 8 (b)(l)(A)
It may seem unrealistic to require that a picket line shed
the sweetness and charm of Vassar 's daisy chain 11 or that it
maintain the dignity of the procession of cardinals
(although so close a formation would not be tolerated) but
that appears to be the trend of Board decisions. The
following findings are, I believe, in accord with prior
decisions of the Board.
Based on testimony which I credit I find Respondent
violated Section 8(b)(1)(A) by:
(a) Dickens ' statements to DePeralta that he (DePeralta)
might be pulled off the road one night and get his brains
knocked out; that all the union members were not peaceful
and that he could not restrain 900 members.12
(b) The shouting of threats and obscenities by the pickets
at strikebreakers as they crossed picket lines.
(c) Taking down the license numbers of cars which
crossed the picket lines.
(d) Calling strikebreakers at their homes at night to
harass them.
(e) Throwing nails in the driveways leading to the Wurst
plant.
(f) Distribution by Respondent of its "scab list containing
the names of strikebreakers to its members.13
(g) Following employees of Wurst in cars as they left the
plant.14
(h) Blocking access to the plant to strikebreakers as they
attempted to enter.15
Other incidents set forth in the testimony of the witnesses
are rejected as insufficient to constitute restraint and
coercion of employees even giving full latitude to the
"imprecision" of those terms.
It is true that Respondent neither authorized nor ratified
most of the conduct found unlawful herein and that its
instructions to its members proscribed coercive activity.
Respondent did, however, authorize the strike, it set up the
picket lines and it appointed the picket captains who
supervised them. Under these circumstances and absence
evidence that Respondent took authoritative steps to
repudiate unlawful conduct I find that under the rules of
agency peculiar to labor law it was responsible for the
misconduct of the strikers.16
3. Violations of Section 8(b)(4)(i)( ii)(B)
The General Counsel has alleged that Respondent
violated Section 8(b)(4)(i) and (u)(B) by (1) inducing
employees of Gates and Unruh to cease work for Gates and
Unruh and (2) has picketed the premises of Gates and
Unruh in each case with the purpose of forcing Gates and
Unruh to cease doing business with Wurst.
The threshold question presented is whether Gates and
Unruh were neutral employers not involved in the dispute
between Respondent and Wurst or constituted, together
with other employers, a single integrated enterprise. An
aerial view of the premises (G. C. Exh. 3)17 indicates that
Wurst, Gates, and Unruh occupied a common situs and
were all housed in the same building. Also occupying the
premises were Continental Color Press, Inc., and Printing
Park, Inc., Printing Park, whose stock was owned by
Continental, built the premises and Continental owned and
leased certain of the presses to the other corporations. All
of these corporations were owned in substantial part by and
controlled by the Wurst family. On September 30, 1969,
Gates and Continental were dissolved as separate corpora-
11 The daisy chain would be anachrostic today but there must be those
who feel some nostalgia for the days when girl graduates carried flowers
rather than bucks and did not salute the dean of women with four-letter
obscenities
i2 There is conflict between the testimony of DePeralta and Dickens as
to what was said at this meeting at DePeralta's home Both appeared to be
credible witnesses and it is not without hesitation that I credit DePeralta I
make a similar finding with respect to Patsch's testimony that he was told
by Dickens that he was putting himself in jeopardy by working and that he
could not control all the members
13 G C Exh 4
14 In reaching this conclusion no reliance has been placed on the
testimony of Gary Coe The persons alleging following Coe were never
identified
11 This refers to testimony of Patsch that two pickets walked in front of
his car and that one of them jumped on the hood While I regard this
incident as minimal, I think, accompanied by the other coercive conduct, it
is sufficient under Board decisions to establish a violation
16 United Mine Workers of America, et a!, 170 NLRB No 178
17 See also Resp Exh 2
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions and were merged with Wurst and Printing Park
became a wholly owned subsidiate of Wurst. The stock
ownership and management of these corporations have
been set forth in Joint Exhibit 1, a copy of which has been
attached hereto as Appendix "A."
As to the operations of the companies, John Wurst
testified that Wurst performed the printing and lithographic
work and that Gates and Unruh, as subcontractors to
Wurst, performed bindery and mailing services respective-
ly. Although Wurst testified that Gates and Unruh
submitted bids for such work in competition with other
companies he admitted that Gates and Unruh obtained
three-quarters of such work as was required by Wurst and
were preferred subcontractors. All bank accounts, payrolls,
and audits were separately maintained.18 Wurst further
testified that each of the companies maintained its own
labor policy and that there was no interchange of
employees among the companies and that facilities such as
lunchrooms, rest rooms, and working equipment, including
storage space, were separately maintained. Welfare and
pension plans were separately operated. The brief of
counsel for the Charging Party sets forth 12 areas in which
the companies exercised independent authority and there is
evidence in the record to support his conclusions in each
instance.
Despite this I find that Wurst, Gates, and Unruh
constituted a single employer and that no neutral employer
or "other person" was involved in the dispute. All were
operated in a closely related enterprise for the common
benefit of the Wurst family and certain other officers and
stockholders. The fiction of autonomy was maintained
largely for tax and accounting purposes, perfectly legiti-
mate, but not binding upon me in reaching decision under
Section 8(b)(4) of the Act. It would indeed be difficult to
hold that these entities, operated under a single roof,
serving as a common enterprise and owned and controlled
by a single family could be said to have independent labor
policies. While Wurst dealt with one union, Gates with
another, and Unruh with none this resulted from the
divergence in actual operations which called for separate
skills. The facts in this case are far stronger in support of the
single employer theory than in United Steelworkers
(Auburndale Freezer), 177 NLRB 1321, and on that ground
I must recommend dismissal.19
IV. THE REMEDY
Having found Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
from the same and take certain affirmative action necessary
to effectuate the policies of the Act.
1s The mergers of the companies were effected with the approval of
Internal Revenue and tax considerations appear to have been the leading
motive
19 While the decision of a district judge is not binding upon the Board
or the examiner the application for an injunction , which requires less
evidence of violation than a hearing on complaint, was dismissed in
Thomas C Hendrix, etc v Lithographers and Photoengravers International
Union Local 235, U S District Court , Western District of Missouri, Civil
Action 17992-3 The Court found that "Unruh -Pumphill Mailing Service,
Inc., George W. Gates and Henry Wurst, inc , constitute a single employer
or portions of a common enterprise , and George W Gates and Unruh-
Upon the basis of the foregoing findings and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By engaging in the conduct as found in paragraph A,
2, of this decision Respondent has restrained and coerced
employees in the exercise of the rights guaranteed by
Section 7 of the Act and has thereby violated Section
8(b)(1)(A) of the Act.
2. Respondent has not violated Section 8(b)(4)(i)(ii)(B)
of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law it is hereby recommended that
Respondent Local 235, Lithographers and Photoengravers
International Union, its officers, agents , representatives,
and assigns shall:
1. Cease and desist from:
(a) Telling its members and employees of Wurst that they
might be pulled off the road and have their brains knocked
out for crossing the picket line at Wurst.
(b) Telling its members and employees of Wurst that it
could not control or restrain the actions of its membership.
(c) Shouting threats and obscenities through its pickets at
employees of Wurst who attempted to cross the picket line.
(d) Telling its members to take down the license numbers
of the cars of employees who attempted to cross the picket
line.
(e) Telling its members and having its members call
employees of Wurst at home at night to harass them for
crossing the picket line.
(f) Throwing nails in the driveways of the Wurst plant.
(g) Distributing a "scab list" of the names of Wurst
employees who worked during the strike.
(h) Blocking access to the Wurst plant to Wurst
employees as they attempted to enter the plant.
(i) Following Wurst employees in cars as they left the
plant.
(I) In any like or related manner restraining or coercing
employees of Wurst in the exercise of the rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action:
(a) Post at the offices and meeting halls of the
Respondent at Kansas City, Missouri, copies of the notice
attached hereto and marked "Appendix B."20 Copies of
said notice, to be furnished by the Regional Director for
Region 17, shall, after being signed by a duly authorized
Pumphill Mailing Service, Inc, do not constitute any "other" employers as
those words are used in Section 8(b)(4) of the Act "
20 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided by Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes. In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "POSTED BY ORDER OF
THE NATIONAL LABOR RELATIONS BOARD" shall be changed to
LOCAL 235, LITHOGRAPHERS 497
representative of Respondent, be posted immediately upon writing, within 20 days from the receipt of this decision
receipt thereof and be maintained by it for 60 consecutive what steps have been taken to comply herewith.zi
days thereafter in conspicuous places, including all places It is further recommended that the complaint, as to all
where notices to members are customarily posted. Reason- allegations not specifically found to be in violation of the
able steps shall be taken to insure that said notices are not Act shall be dismissed.
altered, defaced or covered by other material. read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
(b) Mail signed copies of said notice to the Regional STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
Director of Region 17 for posting by Henry Wurst, Inc., if NATIONAL LABOR RELATIONS BOARD"
willing, at all locations where notices to employees are Si In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director, in
customarily posted . writing, within 10 days from the date of this Order what steps Respondent
(c) Notify the Regional Director for Region 17, in has taken to comply herewith"
APPENDIX A
STIPULATIONS OF THE PARTIES
Counsel for the Petitioner and Counsel for the Respondent hereby
stipulate and agree to the facts set forth below.
A. The following is a complete listing of the stockholders and their
respective stock holdings of Henry Wurst , Inc., George W. Gates Co., Inc.,
Unruh-Pummill Mailing Service , Inc., Continental Color Press , Inc., and
Printing Park, Inc., on July 1, 1969:
1. Henry Wurst, Inc. 2. George W. Gates Co., Inc.
Henry Wurst 2,000 shares Harold Phelps 1 shares
Virginia N. Wurst 2,000 Jean W. Archer 158
Mrs. Susan W. Carter 56,950 Virginia M. Wurst 1
Jeffrey Carter 1,200 John C. Wurst 5
Stephen Carter 1,200 Henry R. Wurst 5
Carol Carter 1,200 Susan Carter 5
Mrs. Jean Archer 56,950 Jeffrey Carter 5
Andrea Archer 1,200 Stephen Carter 5
Henry R. Wurst 61,250 Carol Carter 5
Virginia R. Wurst 2,400 Michael Wurst 5
Russell Wurst 2,400 Amy Wurst 5
Tony Wurst 2,400 Tim Wurst 5
Valerie Wurst 2,400 Emily Wurst 5
John C. Wurst 104,450 Virginia R. Wurst 5
Michael Wurst 2,400 Tony Wurst 5
Amy Wurst 2,400 H. Russell Wurst 5
Tim Wurst 2,400 Valerie Wurst 5
Emily Wurst 1,200 Donald Carter 5
Phyliss Wurst 5
Margaret Wurst 5
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Unruh-Pummill Mailing Service. Inc.
John C. Wurst 700 shares
Henry R . Wurst 600
Raymond S . Storer 400
James L. Pummill 400
E. J. Unruh 400 (now Treasury stock)
4. Continental Color Press. Inc.
Henry E. Wurst 170 shares
Virginia M. Wurst 14
5. Printing Park. Inc.
All stock was owned by Continental Color Press, Inc.
Be After the merger of Henry Wurst , Inc., George W. Gates Co. Inc ., Continental
Color Press , Inc. and Printing Park, Inc. on September 30, 1969 , the following
changes in corporate structure and. stock ownership occurred and continue to
the present:
1. Henry Wurst. Inc. (successor corporation)
Henry Wurst - 72,196 shares
John C. Wurst - 68,850 shares
Henry R . Wurst - 40,681 shares
(No other stockholders holding common stock)
2. George W. Gates Co .. Inc.,
dissolved
3. Continental Color Press. Inc.
dissolved
4. Printing Park. Inc.
became a wholly owned subsidiary of Henry Wurst, Inc.
LOCAL 235, LITHOGRAPHERS
C. Unruh Pummill Mailing Service, Inc., was not involved in the
aforesaid merger, and its ownership was not thereby affected or changed in
any way.
499
D. The following constitutes a complete list of the officers and
directors of the foregoing corporations , and is current except where otherwise
indicated.
1. Henry Wurst, Inc.
.
John C. Wurst
Henry R. Wurst
Daniel S. Davis
John B. Smith
A.L. Arnold, Jr.
Henry E. Wurst
George W. Gates Company,
President and Director
Vice-President and Director
Treasurer and Director
Secretary and Director
Director
Director
Inc, (unitl September 30, 1969)
Harold Phelps
Alfred C. Salmon
John B. Smith
President and Director
Vice-President and Director
Secretary Treasurer and Director
3. Unruh-Pummill Mailing Service Inc.
Raymond S . Storer
James L. Pummill
William E. Fassbinder
John B. Smith
President and Director
Vice-President and Director
Secretary-Treasurer /Director
Director
4. Continental Color Press . Inc. (until September 30, 1969)
.
John C. Wurst
Henry R. Wurst
John B. Smith
Henry E. Wurst
Printing Park. Inc.
President and Director
Vice-President and Director
Secretary-Treasurer and Director
Director
John C. Wurst President and Director
Henry R. Wurst Vice-President and Director
John B. Smith Secretary-Treasurer and Director
Henry E. Wurst Director
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THOMAS C . HENDRIX, Regional Director
of the Seventeenth Region of the
National Labor Relations Board, for
and on behalf of the National
Labor Relations Board,
Petitioner,
Signed
(Name and Title)
LITHORGRAPHERS & PHOTOENGRAVERS
INTERNATIONAL UNION LOCAL 235,
Respondent.
Signed
(Name and Title)
COUNSEL FOR CHARGING PARTIES
Signed
(Name and Title)
APPENDIX B
NOTICE To
EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell any members of our union or any
employees of Henry Wurst, Inc. that they might be
pulled off the road and have their brains knocked out
because they have crossed the picket line maintained by
us at Henry Wurst, Inc.
WE WILL NOT tell any members of our union or any
employees of Henry Wurst, Inc., that we cannot control
or restrain the actions of our members
WE WILL NOT, through pickets at Henry Wurst, Inc.,
who are subject to our control, shout threats and
obscenities at persons who attempt to cross said picket
lines.
WE WILL NOT tell our members to take down the
license numbers of the cars of employees of Henry
Wurst, Inc., who attempt to cross the picket line.
WE WILL NOT tell our employees to call employees of
Henry Wurst, Inc., at their homes or otherwise harass
them for crossing the picket lines.
WE WILL NOT have our pickets at Henry Wurst, Inc.,
(Date)
(Date)
(Date)
throw nails in any of the driveways leading to the Henry
Wurst plant.
WE WILL NOT distribute or post a "scab list" of the
names of employees working at the Henry Wurst plant
during the strike.
WE WILL NOT have our pickets follow employees of
Henry Wurst, Inc., as they leave the plant at night.
Dated By
LOCAL No. 235,
LITHOGRAPHERS AND
PHOTOENGRAVERS
INTERNATIONAL UNION
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
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.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board 's Office, 610
Federal Building 601 E. 12th Street , Kansas City, Missouri
64106 , Telephone 816-374-5181.