Los Angeles Mailers' Union No. 9, Etc.

National Labor Relations Board - Board Decisions

Nov 9, 1965

155 N.L.R.B. 684 (N.L.R.B. 1965)

684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that unless on or before 20 days from the date of their
receipt of this Trial Examiner's Decision Respondents notify the Regional Director
that they will comply with the foregoing recommendations, the National Labor Rela-
tions Board issue an order requiring Respondents to take the action aforesaid.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Carpet, Linoleum and Soft
Tile Local Union No. 1237, Brotherhood of Painters, Decorators and Paper-
hangers of America, AFL-CIO, as the exclusive representative of our employees
as part of a multiemployer unit, and we acknowledge that we are bound by the
terms of a collective-bargaining agreement executed by that union and Sacra-
mento Floor Covering Association, on April 8, 1964.
WE WILL resume our respective installation operations, and we will offer
reinstatement to their former or substantially equivalent positions, to each of
the employees previously terminated by our unilateral discontinuance of such
operations, and make each such employee whole for any loss of pay which he
may have incurred as a result of such termination.
WE WILL NOT in any other manner interfere with the rights granted our
employees by the National Labor Relations Act to organize or bargain
collectively.
WAYNE JOHNSON, an Individual , d/b/a CARMICHAEL FLOOR COVER-
ING COMPANY; JOHN DUNCAN, an Individual, d/b/a DUNCAN
FLOOR COMPANY,
Employers.
Dated------------------- By--------------------------------------------
(Representative) (Title)
NOTE.-We will notify the employees entitled to reinstatement if presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 450 Golden
Gate Avenue, Room 13059, San Francisco, California, Telephone No. 556-3197,
if they have any questions concerning this notice or compliance with its provisions.
Los Angeles Mailers' Union No. 9, a Subordinate Union of the
International Typographical Union and Dow Jones & Com-
pany, Inc. Case No. 21-CB-f310. November 9, 1965
DECISION AND ORDER
On June 28, 1965, Trial Examiner James R. Hemingway issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging 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 Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
155 NLRB No. 68.
LOS ANGELES MAILERS' UNION NO. 9, ETC. 685
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
pane]. [Members Fanning, Brown, 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 Trial
Examiner's Decision, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order.]
1 The Trial Examiner found that the Respondent Union had refused to bargain In good
faith on and after July 2 , 1963, by which date he found that the parties had reached
agreement but the Union thereafter did not process the contract for execution . However,
inasmuch as the complaint alleged the refusal to bargain began on November 21, 1963,
and the General Counsel stipulated to that effect , we adopt the latter date as the date of
the refusal to bargain.
Because of the evidence of bad faith on Respondent ' s part in seeking membership ap-
proval of the contract agreed to by the negotiators , Member Brown agrees that Respondent
has violated Section 8(b) (3) of the Act. He would remedy this violation by entering a
bargaining order such as Is normally utilized in the circumstances . He does not believe
that an order requiring Respondent to sign a contract Is appropriate Inasmuch as It ap-
pears that membership ratification was contemplated by the parties as a prerequisite to
the consummation of a contract and this ratification was never forthcoming.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on April 24, 1964, by the attorney for Dow Jones & Company,
Inc., against Los Angeles Mailers' Union No. 9, a subordinate union of the Inter-
national Typographical Union, herein called Respondent, the General Counsel of the
National Labor Relations Board , on behalf of the Board , caused to be issued on
October 22, 1964, a complaint alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Section
8(b) (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151, et seq., herein called the Act. On November 3, 1964, Respondent
filed an answer , denying the substantive allegations of the complaint.
Pursuant to notice , a hearing was held before Trial Examiner James R. Hemingway
on January 13, 14, and 15, 1965. All parties were represented by counsel and were
afforded full opportunity to be heard, to introduce relevant evidence , and to cross-
examine witnesses. The parties waived oral argument but requested time in which
to file briefs with me. Such time was fixed and was subsequently extended, and
within the extended period of time briefs were received from each of the parties.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Dow Jones & Company, Inc., herein called the Company or Dow Jones, has
been at all times material herein, and is, a Delaware corporation engaged in publish-
ing the Wall Street Journal , a newspaper of general circulation , at its principal place
of business located in New York, New York, and its branch offices located in various
other States, including a branch office at Riverside, California, the only facility
involved in this proceeding.
During the calendar year 1963, the Company, in the course and conduct of its
newspaper publishing operations , held membership in, or subscribed to, various inter-
state news services , published various syndicated features originating and prepared in
States other than the State of California, and advertised various nationally sold
products , a substantial number of such advertisements originating outside the State
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of California. During the said period, the Company derived gross revenue from
said publishing operations in excess of $200,000 and purchased and received at its,
Riverside, California, plant, goods, materials, and supplies valued in excess of
$50,000 directly from points outside the State of California. It is conceded that the
Company, at all times material hereto, has been an employer engaged in commerce
and in a business affecting commerce within the meaning of Section 2(6) and (7)
of the Act and I so find.
H. THE RESPONDENT AS A LABOR ORGANIZATION
Respondent is a labor organization admitting to membership employees of the
Company, some of whom it represents in collective bargaining. It also represents
employees of other employers in collective bargaining. It is a labor organization
within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Refusal to bargain
1. The appropriate unit
The complaint alleges and the answer, failing to deny, admits that all mailroom
employees at the Company's Riverside , California, plant performing the following
work:
. handling the product as it leaves the conveyor, escalator, or after the product
is loaded on a conveyance from the press fly, the addressing and processing of
same (but excluding the preparation for and the making of mailing lists), and
continues until the finished product is delivered to the tailgate of the truck; ...
excluding guards, watchmen, and supervisors , as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
2. Respondent's majority in the appropriate unit
The complaint alleges and the answer, failing to deny, admits that at all times
material hereto, and continuing to date, Respondent has been, within the meaning
of Section 9(a) of the Act, the exclusive representative of all the employees in the
appropriate unit described above with respect to rates of pay, wages, hours of employ-
ment , and other tetrms and conditions of employment.
3. The negotiations; the collective-bargaining agreement;
and the refusal to sign the written agreement
Negotiations for a collective-bargaining contract between the Company and the
Respondent began in the fall of 1962.1 On April 26, 1963, after an all-day session,
the parties reached an oral agreement. At that meeting, the Company was repre-
sented by George Flynn, at that time the plant manager, by Joseph Fleming, at that
time the assistant to the plant manager, and by Robert McAllister, at that time the
labor relations manager for the Company, while the Respondent was represented by
its then president, Fred Leathem, members of the scale committee, and by Inter-
national Representatives Milton Lomas and Ken Prarie. The last matter to be set-
tled was the term of the contract. The Union had asked a caucus to consider the
Company's last offer concerning that term. After a short caucus, Lomas and the
Respondent's bargaining group came back to the room and Lomas put out his hand
and said, according to McAllister, "You've got a deal." It was agreed that McAllister
would reduce the final agreement to written form and send copies thereof to the
Respondent for execution. It was understood that the agreement would routinely
be submitted to the International Union for approval and to the membership of the
Respondent for approval.
Because of the press of other business, McAllister was unable to reduce the agree-
ment to writing until early in June 1963, and on June 10 he mailed it to the Respond-
ent. On June 17. 1963, Elmo Mathiesen, the successor to Leathem as president of
Respondent, wrote to Fleming, acknowledging receipt of the copies of the draft
agreement, and stating, "While we are checking the agreement with our negotiating
minutes, we feel that the company should put the economic features of the agree-
ment into effect." Mathiesen's letter then stated that as soon as the agreement had
1 The Riverside plant opened in the spring of 1962.
LOS ANGELES MAILERS' UNION NO. 9, ETC. 687
been cleared "from our end" Respondent would notify Fleming and send the signed
copies. Pursuant to this request, the Company did put the terms of the agreement
into effect.
Nothing further was heard from the Respondent until about July 2, 1963, when
McAllister telephoned International Representative Lomas concerning a scheduled
meeting in San Francisco. In this conversation, Lomas told McAllister that there
were a few "language items" that did not conform to their agreement. McAllister
got out a copy of his draft of the contract and went through these objections with
Lomas. Two of the objections concerned the omission of language which was cus-
tomary in ITU contracts and McAllister agreed that he had overlooked this language
.and that it should be included. Another objection raised by Lomas was to the
language of the clause concerning the duration of the agreement. This clause had
been drafted by McAllister to read, "This agreement shall be in full force and effect
on and after the first day of May, 1963, to and including the 31st day of January, 1965,
and shall continue in effect from year to year thereafter unless written notice of
desire to terminate or modify shall be given by either party 60 days prior to the
-expiration date of this contract." Lomas said that the Respondent had not agreed
to an automatic renewal and that an automatic renewal was against the Union's
policy. McAllister agreed to remove the words of automatic renewal but stated that
the Company wanted some kind of notice, and Lomas agreed to give notice if the
language concerning automatic renewal was removed. This was agreeable to McAllis-
ter. Lomas questioned McAllister with regard to whether or not the provision con-
cerning holidays would be retroactive. McAllister stated that the Company would
not give anything retroactively. In the negotiations there had, apparently, been no
discussions concerning retroactivity, and Lomas did not insist upon it as a condition
to execution of the agreement. In McAllister's draft of the agreement, in the pre-
amble clause, the agreement described the Company as "Dow Jones & Company, Inc.,
in the city of Riverside, California," and in section I, "Union Recognition," the draft
read: "The employer hereby recognizes the Union as the exclusive bargaining repre-
sentative of all Mail Room employees covered by this agreement in the city of
Riverside, California." Lomas objected to the use of the words "the city of" in both
places and stated that the Company would never get a contract if McAllister insisted
upon that description. The city of Riverside is located in the county of Riverside,
California. Lomas did not, however, contend that the parties had reached an agree-
ment describing the location of the Company or the unit as in the county of Riverside.
Nevertheless, he insisted that the words "in the city of" be omitted from the contract.
Lomas admitted in his testimony that the reason for insisting upon this was that he
preferred to leave this language ambiguous so that the Respondent could argue that
the unit consisted of all employees as previously described in the county of Riverside
rather than just in the city of Riverside. McAllister refused to agree to the excision
of those words, and this was the only point upon which agreement was not then
reached. Lomas notified Mathiesen of the corrections agreed upon. Although
Mathiesen denied it, there is evidence from which it may be believed that Mathiesen
or someone acting for the Respondent then sent a copy of the agreement to the
International for approval.
Later, at a meeting concerning another matter in San Francisco on July 18, 1963,
McAllister had a brief conversation with Lomas in which the disputed words "in the
city of" were discussed. McAllister told Lomas that Fleming's notes corroborated
his, and that he could not agree to delete those words. Lomas also told McAllister
that the Riverside plant was hiring nonunion people and that he did not like that.2
He asked McAllister to look into this matter. So far as the evidence discloses, Lomas'
objection was not to the hiring language of the contract but rather to the Company's
practices thereunder.
No further communication concerning the agreement took place until September 3,
1963, when Fleming wrote a letter to Mathiesen, president of the Respondent, stating
that Lomas had informally notified the Company that the language of section I
["in the city of Riverside"] was the remaining area of disagreement . Fleming stated
that Respondent's objection did not coincide with the understanding reached and
that he would appreciate hearing from Mathiesen on this matter. Mathiesen replied
on September 25, 1963, stating that "there seems to be some misunderstanding on
this Section," and "as soon as I can get a clear answer, will drop you a line or call
you." He never gave the answer referred to.
' The agreement did not contain a hiring hall agreement or a closed -shop provision.
The Company took the position that anyone it hired was eligible for membership in the
Respondent.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In October 1963 a meeting of representatives of various locals of ITU was held at
the International's headquarters in Colorado Springs, Colorado. Mathiesen testified
that he was called to this meeting "to join with some other brothers from around
the country to discuss the situation of Dow Jones & Company," and he testified that
he took with him the draft agreement as submitted by McAllister. Being asked by
the General Counsel if this was the first time that the tentative agreement had been
submitted to the International for approval, Mathiesen answered that it was. Counsel
for the General Counsel then showed Mathiesen an excerpt from The Los Angeles
Citizen, a union publication, which appeared on July 12, 1963. In this publication,.
in a column written by Mathiesen, appeared the following language:
The tentative negotiated agreement with Dow Jones & Company, Inc., of River-
side has been sent to the International for approval to present to the member-
ship. If it returns by Sunday [July 14, 19631 we will vote on it.
In explaining the discrepancy, Mathiesen testified that what he had sent to the
International was "not a document as such," that there had been sent a letter "com-
paring the Dow Jones tentative agreement or tentative minutes . . . as compared to
the Hillboro agreement."
At the meeting in Colorado Springs, the local union representatives were instructed
to hold negotiations on collective-bargaining contracts in abeyance as much as pos-
sible. The reason for this instruction was that the International intended to propose
negotiating with Dow Jones on a national scale at the expiration of existing
agreements.
Having heard nothing from the Respondent about the status of the tentative agree-
ment since Mathiesen's letter of September 25, 1963, Fleming, on November 12„
1963, wrote a letter to him requesting that the contract be signed. On November 21,
1963, pursuant to a decision by the Company, Fleming telephoned Mathiesen and
told him that the Company would consent to the elimination of the words "the city
of" from the preamble and from the recognition clause of the draft agreement.
,,Mathiesen was noncommittal.
On March 13, 1964, having heard nothing further from the Respondent, Fleming
wrote to Mathiesen stating that 4 months had elapsed since the final issue between
them had been resolved and again requested execution of the written agreement.
Mathiesen did not answer this letter. On March 20, 1964, Respondent's secretary-
treasurer wrote to Fleming, saying:
Los Angeles Mailers' Union No. 9 hereby advises you of our desire to enter
into collective bargaining for a contract through the I.T.U. Joint Bargaining
Committee.
We have selected Mr. Elmo Mathiesen as our representative to the Joint
Bargaining Committee. We have given to our representative, the power and
authority to act in behalf of Los Angeles Mailers' Union No. 9, I.T.U.
Fleming, on behalf of the Company, on April 3, 1964, replied to the foregoing
letter, reviewing the circumstances of the delay of the Respondent in signing the
contract and stating that if the Respondent refused to execute and return a copy of
the contract, the Company would have no recourse but to pursue its legal remedies.
Upon receipt of this letter, Mathiesen caused a copy of Fleming's letter to be made
and he sent it to the International for advice. Mathiesen testified that he was there-
after instructed by the International to submi the collective-bargaining agreement
to a vote of the membership. He was unable, in his testimony, to fix the date when
he had received these instructions.
On April 16, 1964, Mathiesen wrote to Fleming that the "tentative negotiated
agreement with your Company has not been presented to the membership for
approval, but will be presented at the regular May union meeting," and that if
acceptetd by the Respondent, copies would be sent to the president of the Interna-
tional for approval signature.
Mathiesen testified that the regular monthly meeting took place on the second
Sunday of the month and that there had been such a meeting each month between
December 1963 and May 1964. This means that the April meeting was held on
April 12, 1964, after the date of the receipt of Fleming's last letter. At that April
meeting, there was a discussion of the contemplated national agreement for Dow
Jones,3 the proposed wage scale of which was considerably higher than under the
agreement reached by the Respondent and the Company. The. Respondent's May
meeting was advanced from the second Sunday of the month to the first Sunday
(May 3). At this meeting, one of the first matters of business was a review of the
8 There was no evidence that this agreement had been actually proposed to Dow Jones
as yet although a draft apparently had been prepared as early as January 1964.
LOS ANGELES MAILERS' UNION NO. 9, ETC. 689
status of negotiations on the Hillboro contract. The tentative Dow Jones contract
was then brought up for consideration. George Russell, an employee of the Com-
pany at Riverside, testified that one of the officers of the Union had stated, before
the vote was taken, that at the meeting of the month before there had been mention
made of a nationwide contract for Dow Jones. Russell thought the officer was Math-
iesen . When Mathiesen called for questions or discussion about the Dow Jones
contract, Russell asked what the difference would be in pay under the Dow Jones
and the nationwide contract. Russell testified that Mathiesen answered that the
nationwide contract rate would be from $15 to $25 a week higher. Mathiesen denied
that he made this statement at this time. He testified that he ruled Russell's question
out of order until after the vote was taken and that then he had entertained the ques-
tion and had answered that the contract rate under the nationwide agreement would
be from $15 to $20 a week higher. According to Russell, one member asked, before
the vote, whether, if the contract with Dow Jones was signed, the Respondent would
be able to go with the rest of the locals in the nationwide contract, and that Mathiesen,
had answered that it would not. Whether or not Mathiesen gave the aforesaid dif-
ference in rate of pay before or after the vote on the Dow Jones contract was taken
I find to be immaterial in view of the fact that the nationwide contract had been
discussed at the April meeting, that this had been called to the attention of the mem-
bership at the May meeting before the vote was taken, and that the members were
informed that the Respondent could not participate in such a national agreement if
it signed the Dow Jones contract. Six of the members present were from the River-
side plant; the rest were from other plants. No testimony was given concerning the
number of members attending this meeting nor what the vote actually was. The
only indication of the size of the meeting was testimony that the 6 members from
the Riverside plant sat in the back row and that there were 50 rows of seats. Before,
calling for a vote, Mathiesen stated that the Respondent's scale committee recom-
mended the adoption of the Dow Jones contract. The membership voted against the
contract, which had been reached a year before.
On May 5, 1964, Mathiesen wrote a letter to Fleming in which he stated that the
tentative negotiated agreement between the Company and the Respondent had been
presented to the members at the May meeting held on May 3, that "although I had
nothing to do with the negotiations, I personally recommended acceptance," and that
"after much discussion by the members, the tentative negotiated agreement was
rejected by a secret ballot." Since the date of the last letter the Union has insisted,
through its International, on bargaining on a national basis, and the Company has
refused to recognize other than separate units.
3. Conclusions
It is the General Counsel's and Company's contention that the Respondent's failure
to, and decision not to, sign the written memorial of the agreement reached on
April 26, 1963, constituted a refusal to bargain within the meaning of Section 8(b) (3)
of the Act. Respondent contends that, at least until November 21, 1963, when the
Company yielded and agreed to the omission of the words "the city of" in the pre-
amble and recognition clauses, there was no complete agreement, and that the delay
in taking a vote thereon between November 21, 1963, and May 3, 1964, was not
unreasonable. The Respondent further takes the position that a condition precedent
to its obligation to sign a contract was a favorable vote of the membership and
approval by the International. Although this point is not explicitly dealt with in
their briefs, the General Counsel and Company apparently consider those acts as
mere formalities which would not affect the existence of a collective-bargaining
agreement. The Company's brief suggests that this is, in general, the Company's
contention by arguing that, after the Respondent requested that the Company put
into effect the substantive provisions of the agreement, Respondent was estopped from
denying the existence of the agreement.
a. Authority of negotiators
It is commonly understood that a principal may authorize his agent to negotiate
and make a collective-bargaining contract or he may limit the agent's authority to
negotiating and recommending a collective-bargaining contract. If the agent's
authority is so limited, normally a contract does not exist unless the principal approves
the recommended agreement.4 Where past dealings have demonstrated that nego-
* Whether or not technically correct, this act of approval is often called "ratification."
The restatement of the Law of Agency uses the word "ratification" in a more limited
sense.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiators' recommendations carry considerable weight and are usually accepted in due
course, it is readily understandable that the negotiators for both sides, and even the
principals, would come to regard acceptance or ratification by the principal as a
formality only; and a rejection by the principal in such a case might well be deemed
an act of bad faith, especially in the absence of a bona fide reason for dissatisfaction
with the substantive provisions of the negotiated terms of the contract .-5 That there
was no bona fide reason for dissatisfaction with the substantive provisions of Respond-
ent's tentative negotiated agreement with the Company on June 17, 1963, less than
2 months after the tentative agreement was reached, is evidenced by the fact that the
Respondent's president, on behalf of the Respondent, on that date requested the
Company to put into effect "the economic features" of the contract and indicated
that execution would depend only on checking the language of the draft agreement.
It is not contended that its president lacked authority to make this request, a request
actually complied with by the Company. After this indication of satisfaction with
the substantive terms of the agreement, the membership of the Respondent would,
indeed, have had to show some serious reason for not accepting the recommenda-
tion of the Respondent's negotiating committee if it was to contend that it was
acting in good faith, because its dissatisfaction would have to relate to the terms of
the contract itself rather than to the composition of the bargaining unit or to some
other collateral matters No such reason was given by Respondent. It assumed
that rejection could be arbitrary. With this I disagree.
b. Disagreement on language
The objections raised in early July 1963 by International Representative Lomas
to certain language included in, or omitted from, the draft of the agreement presented
no serious problem. Most of the objections related to omissions which the Company
readily conceded should have been in the contract. One objection to language included
(as distinguished from omitted) related to the automatic renewal provision which
Lomas and McAllister agreed to amend, McAllister agreeing to drop the automatic
renewal clause and Lomas agreeing that, in advance of the time when negotiations
were to commence, Respondent would serve on the Company notice of its desire to
enter into negotiations for a new agreement at or after the expiration of the current
one. Under these circumstances, the Respondent, having the drafts of the agreement,
could have amended them in accordance with the understanding reached and returned
them to the Company for approval of language. Its failure to do so suggests a
desire on its part to delay execution of the agreement for some collateral reason.
True, Lomas contended that there still continued to be reason for objection because
of inclusion of the words "the city of" in describing the Company's location and,
hence, the unit as described in the recognition clause. I am not satisfied that this
objection was raised in good faith. No contention had been made during negotiations
that the unit should be described as covering all mailroom employees of the Com-
pany in the county of Riverside. At the time of negotiations, the Company's employ-
ees in the described unit were all working in the city of Riverside and the Company
had voiced no intention of expanding its operations outside the city limits. Even
if the parties had not, in negotiating, used the words "city of" in connection with
"Riverside," it is obvious that when they spoke of Riverside they had in mind the
city of Riverside. Normally, a company's location or address is stated not merely
as within a county when it is located in a city. The more precise location is almost
uniformly stated in contracts. If the contrary had been intended here, it would be
expected that the parties would have agreed specifically to the use of the description
"county of," and Respondent does not contend that they ever so agreed. Lomas as
much as admitted in his testimony that he desired to create an ambiguity by use of
the description "Riverside" alone as distinguished from "the city of Riverside,"
although he never claimed that any agreement had been made to describe the loca-
tion as "in the county of Riverside." Thus, Lomas' objection to the inclusion of the
words "the city of' cannot be said to have been in good faith. It may be suspected
that even at that time Lomas was aware of the possibility that the International
intended to propose nationwide bargaining with the Company and seized upon a
technicality to impede final execution of the contract. Whatever his reason, I find
that this was not a proper objection and that the parties had actually reached agree-
ment not only on all substantive terms on April 26, 1963, but also had, in the tele-
phone conversation between McAllister and Lomas on July 2, 1963, come to agree-
8 See Sheet Metal Workers Union, Local No. 65, AFL-CIO (Inland Steel Products Com-
pany), 120 NLRB 1678; Operating Engineers Local Union No. S (California Association
of Employers), 123 NLRB 922, 929.
6 See The Standard Oil Company, 137 NLRB 690 at 691.
LOS ANGELES MAILERS' UNION NO. 9, ETC. 691
ment on all essential language to express their understanding . Lomas notified the
Respondent's president of the agreed corrections. At that time, Respondent should
have submitted its contract to vote of its membership formally to approve the agree-
ment already tentatively accepted.
c. Delay and bad faith
From about July 2, 1963, on, I find, Respondent exhibited bad faith in failing to
submit the contract to its membership for approval and to execute it. There is
every reason to believe that at that time approval would have been automatic.
Although Mathiesen testified that the draft agreement had not been submitted to
the International for approval before October 16, 1963, I do not credit his testimony.
In the normal course of dealings, an agreement, when reduced to writing, is sub-
mitted to the International for approval. The International has a contract committee
that looks over the draft to be sure that there is nothing in it that contravenes its
general laws or policy and that it contains all essential and customary language for
the provisions covered. Mathiesen's statement in the union publication of July 12,
1963, that the Dow Jones contract had been submitted to the International and that
it would be voted on at the July meeting if it was returned in time, impeaches Math-
iesen's testimony. It is readily inferrible that, following Lomas' telephone conversa-
tion with McAllister on July 2, 1963, Lomas notified Mathiesen of the changes
agreed to, that Mathiesen had prepared a draft containing the agreed language and
submitted it to the International, and that the International on July 12, 1963, was
expected to approve it. In fact, I find reason to believe that the International did,
in fact, approve it, for, although Respondent did not concede that the contract had
technically been approved by the International, Mathiesen testified that when, in
April 1964, the Company threatened to take legal action and he had requested advice
from the International, that body had instructed him to submit the contract to the
membership for vote. Yet, if Mathiesen's testimony were believed, the International
never approved "any document as such" embodying the agreement between the
Company and the Respondent covering the Riverside plant. I can only conclude
that the International had already approved the agreement , whether or not it had
approved it "as a document."
The evidence convinces me, and I find , that representatives of various locals of
the ITU, having contracts with the Company at various plants about the country,
met at the International's headquarters in Colorado Springs, Colorado, in October
1963 , to agree among themselves and representatives of the International upon the
terms desired in a nationwide contract and that the International there suggested, if it
did not instruct, that the locals refrain from reaching agreement with the Company
on any new contracts until the national agreement could be proposed. In the case
of the Respondent, which had already reached oral agreement, this called for an
act of bad faith. I further find that the delay of the Respondent in submitting the
written agreement to the membership for a vote after it learned that a national agree-
ment was being contemplated was motivated by such collateral consideration and
was not motivated by any belief that the terms of the agreement had not been put
in proper language. This conclusion is fortified by the fact that even after the
Company had agreed to omit the words "the city of" from the two places where
they appeared in the draft, the Respondent continued to delay and failed to respond
until legal recourse was mentioned by the Company in April 1964. Then it took
steps to do what it should have done 9 or 10 months before. However, by this time
the contemplated national agreement had been revealed to the membership. In
fact, it was a topic of discussion at the April 14, 1964, meeting of the Respondent.
Although the members may not have seen a draft of this contemplated proposal, they
were aware that the terms thereof would be more favorable to them than the one
they then had and that since the one they then had would not expire for another 9
months, they could not enjoy the chance of the more favorable terms of a nationwide
agreement if they approved the one already reached in fact. Mathiesen, when asked
about this at the May 1964 meeting, so informed the membership before the vote was
taken on the existing agreement. Under the circumstances, I find that the disapproval
of the contract voted on was not based on considerations connected exclusively with
that contract.
In summary, I find that the Respondent in bad faith delayed submission of the
contract to a vote of the membership and engineered the ultimate submission thereof
in a way designed to defeat its approval in order to attempt to alter the existing
appropriate unit from a plantwide to a nationwide unit and to bargain for more
favorable terms in a nationwide contract, thereby refusing to bargain within the
meaning of Section 8 (b) (3) of the Act.
212-809-6 6-vol. 155-45
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Dow Jones & Company, Inc., 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
commerce and the free flow thereof.
V. THE REMEDY
The Company urges, as part of the remedy, that the Respondent be required to
sign the 1963 contract notwithstanding the fact that this contract, by its terms, expired
on January 31, 1965. The Respondent, on the other hand, contends that the case
is moot and that this would be a futile act. If the Respondent is required to sign
the agreement, the Company apparently contemplates claiming a right to an addi-
tional 60 days following the date of notice of desire to reopen or to negotiate a new
agreement. With regard to this, Respondent points to the fact that it wrote a letter
to the Company on January 12, 1965, stating:
As we previously notified you, our membership has rejected the proposed col-
lective bargaining agreement between you and us. Accordingly, there is no
collective bargaining agreement in effect between us.
Without prejudice to the above, this will notify you of our desire to terminate
any and all collective bargaining agreements between us, verbal or written,
express or implied, which may exist or may be found hereafter to exist including
without limitation the purported agreement with the expiration date of Jan-
uary 31, 1965.
Even if the contract were found to be binding on Respondent, the latter contends,
this letter would be compliance with the contract terms and would terminate the
agreement as of 60 days from the date of such notice, to wit: March 12, 1965.
Hence, the Respondent reasons, the contract would be extinct in any event and
Respondent should therefore not be required to sign the contract. The Company,
on the other hand, contends that the aforesaid notice should be given no legal effect
since it was designed to thwart these proceedings.
One other aspect of the situation, however, was not expressly voiced by either side,
although I am confident that it did not escape their attention. The Riverside plant
was a new operation opening in the spring of 1962. The agreement reached on
April 26, 1963, was the first one in which the appropriate unit was described. The
Company desires to retain the local plant unit, while the Respondent desires to
bargain in a nationwide unit of all the Company's plants where Respondent has
chapels. Had there been no 1963 contract, there would, presumably, be no defined
unit limited to the Riverside plant. I judge that this is a substantial part of the
reason why the Respondent desires not to sign the 1963 agreement now, acknowl-
edging the plantwide unit to be appropriate at a time when it is pressing for a
nationwide unit.
Perhaps, legally, the findings I have made, if not disturbed in subsequent proceed-
ings, might suffice to bind the Respondent to the appropriate unit herein described.
However, the signed contract might more effectively foreclose argument. I cannot
say that it would serve no useful purpose to require that Respondent now sign the
expired contract. As the Board said in International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America, etc. (Maremont Automotive
Products, Inc.), 134 NLRB 1337, footnote 4, 1339, ". . . the Company is entitled to
any legal protection which may have arisen under the contract, if fully executed,
and to obtain such execution if it so desires." In that case, the contract had already
expired as it has here, so that decision is controlling here.
Accordingly, I shall recommend not only the customary cease-and-desist order
and an order affirmatively to bargain, upon request by the Company, but also an
order requiring the Respondent, upon request by the Company, to sign the contract
as drafted by McAllister and as subsequently amended in the July 2, 1963, telephone
conversation between McAllister and Lomas, as evidenced by the corrected draft
introduced in evidence herein as General Counsel's Exhibit No. 3, with, however,
one modification. That exhibit was prepared by McAllister to show the changes
actually agreed upon by himself and Lomas in the July 2, 1963, telephone conversa-
tion. In that conversation, Lomas objected to the automatic renewal language of
section 29, "Duration of Agreement." McAllister concurred and this language is
shown as stricken in General Counsel's Exhibit No. 3. However, McAllister told
Lomas in that conversation that the Company could not agree to do so without
LOS ANGELES MAILERS' UNION NO. 9, ETC. 693
notice. Lomas then agreed that notice would be given. Lomas did not, however,
expressly adopt the language of section 29 covering notice as shown in General
Counsel's Exhibit No. 3. That language was drafted in connection with the automatic
renewal clause which originally read:
This agreement shall be in full force and effect on and after the 1st day of May,
1963, to and including the 31st day of January, 1965, and shall continue in
effect from year to year thereafter unless written notice of desire to terminate
or modify shall be given by either party sixty days prior to the expiration of
this contract.
In preparing General Counsel's Exhibit No. 3, McAllister changed the comma after
"1965" to a period, struck out "and shall continue in effect thereafter unless" and
capitalized the initial letter of the next word, "written." It will be observed that
Lomas, in agreeing to a notice provision, did not agree that it would be given before
the expiration date of the contract. He agreed merely to give 60 days' written notice
of desire to terminate or modify the contract. The sense of his agreement was that,
if the notice were given even on or after January 31, 1965, the Company could not
be required to commence negotiations until 60 days after notice. Accordingly, the
final sentence of section 29, as shown in General Counsel's Exhibit No. 3, should be
amended before signing to read: "Either party desiring to open this contract may do
so by serving a sixty-day written notice upon the other party at any time after a
date sixty (60) days prior to January 31, 1965."
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Company is an employer within the meaning of Section 2(2) of the Act.
3. The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
4. All mailroom employees at Dow Jones' Riverside, California, plant performing
the following work:
. handling the product as it leaves the conveyor, escalator, or after the product
is loaded on a conveyance from the press fly, the addressing and processing of
the same (but excluding the preparation for and the making of mailing lists),
and continues until the finished product is delivered to the tailgate of the
truck; ...
excluding guards, watchmen, and supervisors, as defined in the Act, constitute a unit
appropriate for collective bargaining within the meaning of Section 9(b) of the Act.
5. At all times material hereto, and continuing to date, Respondent has been,
within the meaning of Section 9(a) of the Act, the exclusive representative of all
the employees in the appropriate unit (described in paragraph 4, above, of these
conclusions of law) with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
6. By failing and refusing after July 2, 1963, to fulfill its obligation to sign a writ-
ten memorial of the agreement reached in negotiations with the Company on April 26,
1963, Respondent has engaged in and is still engaging in unfair labor practices within
the meaning of Section 8 (b) (3) of the Act.7
7. The unfair labor practices hereinabove found are unfair labor practices affecting
commerce 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, upon the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that Respondent, Los Angeles Mailers' Union
No. 9, a subordinate union of the International Typographical Union, its officers,
agents, and representatives, shall:
1. Cease and desist from refusing upon request of Dow Jones & Company, Inc.,
to execute a written memorial of Respondent' s agreement with said Company reached
at the bargaining session cn April 26, 1963, as described herein, with the langu . e
concerning notice, as described in the section hereinabove entitled "The Remedy ."
7 The complaint does not in this case allege any derivative violation of Section
8(b) (1) (A) of the Act. See The Standard Oil Company , 137 NLRB 690, footnote 3.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which I find will effectuate the policies
of the Act:
(a) If requested to do so by the Company, forthwith sign and deliver to the
Company, an original copy of the agreement reached on April 26, 1963, as described
in the section above entitled "The Remedy," and upon request, at an appropriate
time, bargain collectively with the Company in accordance with Respondent's obliga-
tion under the Act, and, if an understanding is reached, embody such understanding
in a signed agreement.
(b) Post at Respondent's offices and meeting places copies of the attached notice
marked "Appendix." 8 Copies of such notice, to be furnished by the Regional
Director for Region 21 of the Board, shall, having been first duly signed by
Respondent's authorized representative or representatives, be posted by Respondent
immediately upon receipt thereof and be maintained by Respondent for 60 consecu-
tive days thereafter, in conspicuous places, including all places where notices to their
members are customarily posted. In the event that notices to members are cus-
tomarily given through the medium of a union publication, said notice shall be
published in such publication in like manner. Reasonable steps shall be taken by
Respondent to insure that notices posted as required herein are not altered, defaced,
or covered by any other material.
(c) Mail to the said Regional Director a sufficient number of copies of said notice
to enable the Company, if it desires, to post them at its Riverside, California, plant,
in places where notices to employees are customarily posted.
(d) Notify the said Regional Director, in writing, within 20 days from receipt of
the Recommended Order regarding the steps that have been taken to comply
herewith.9
8If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Exam-
iner" In the notice. If the Board's Order is enforced by a decree of a United States
Court of Appeals, the notice will be further amended by the substitution of the words "a
Decree of the United States Court of Appeals, Enforcing an Order" for the words "a
Decision and Order."
Q If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 21, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF Los ANGELES MAILERS' UNION No. 9, A SUBORDINATE
UNION OF THE INTERNATIONAL TYPOGRAPHICAL UNION
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL, if requested to do so by Dow Jones & Company, Inc., sign and
execute the agreement reached by and between said Company and this Union
on April 26, 1963; and, as the exclusive representative of the employees in the
unit below described, we will, upon request, bargain collectively with the afore-
said Company at an appropriate time, and, if an understanding is reacbad, we
will embody such understanding in a signed agreement.
The bargaining unit is:
All mailroom employees at the Company's Riverside, California, plant
performing the following work:
handling the product as it leaves the conveyor, escalator, or after the
product is loaded on a conveyance from the press fly, the addressing
and processing of same (but excluding the preparation for and the
making of mailing lists), and continues until the finished product is
delivered to the tailgate of the truck; .. .
excluding guards, watchmen, and supervisors, as defined in the Act.
LOS ANGELES MAILERS' UNION No. 9, A SUBORDINATE UNION OF
THE INTERNATIONAL TYPOGRAPHICAL UNION,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
LOCAL 562, UNITED ASSOC. OF JOURNEYMEN, ETC. 695
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.
If members have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, 849
South Broadway, Los Angeles, California, Telephone No. 688-5204.
Local 562, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO; Local 318, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada , AFL-CIO and Layne-
Western Company and Local 554, Well Drillers Division , Inter-
national Union of Operating Engineers , AFL-CIO. Case No.
14-CD-198. November 9,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following the filing of charges on May 24,
1965, by the Layne-Western Company (hereinafter called Layne or
the Employer), alleging a violation of Section 8(b) (4) (i) and (ii)
(D) of the Act. The charge was subsequently amended on May 27,
1965 . The charge, as amended, alleged that Locals 318 and 562 of the
United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, AFL-CIO
(hereinafter referred to as Local 318 and Local 562, or collectively as
Pipefitters), have induced or encouraged employees of Layne to cease
work and have threatened Layne, where in each case an object was to
force or require Layne to assign certain steps in the installation of a
vertical turbine pump at Southeast Missouri State College to mem-
bers of Local 562 rather than to its own employees who are repre-
sented by Local 554, Well Drillers Division, International Union of
Operating Engineers, AFL-CIO (hereinafter called Local 554 or
Operating Engineers). Thereafter, a duly scheduled hearing was
held before Hearing Officer Philip Dexter on July 12, 1965. The
Employer and the Pipefitters appeared at the hearing and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses , and to adduce evidence bearing on the issues.' The rulings
of the Hearing Officer made at the hearing are free from prejudicial
error and are hereby affirmed. A brief filed by the Employer has
been duly considered.
1 The Operating Engineers, a party in interest, was served with formal papers but did
not appear or participate at the hearing.
155 NLRB No. 66.