Newspapers, Inc.,

National Labor Relations Board - Board Decisions

Apr 9, 1974

210 N.L.R.B. 8 (N.L.R.B. 1974)

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newspapers, Inc., Publishers of the Austin American
and the Austin Statesman and Houston Newspaper
Printing Pressmen's Union No. 43. Case
23-CA-4612
April 9, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On July 31, 1973, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and the Respondent filed a reply brief to the
General Counsel's and Charging Party's exceptions
and briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
We are unable to agree with the Administrative
Law Judge, for, in our opinion, he has exalted form
over substance in finding that Respondent did not
refuse to bargain with Houston Web Local 43 in
violation of Section 8(a)(5) because Houston Local
43 is not the successor to Local 143 in the sense of
being in effect the same bargaining entity. He
reasoned:
The [union] that had the ... agreement with
Respondent . . . was Local 143. Such bargaining
entity was not the Web Division of Local 143.
When the "Web Division" members were trans-
ferred from Local 143 to Local 43, in effect, the
"Web Division" was severed from Local 143 and
placed with Local 43. Local 143 continued to exist
.... Thus what occurred is not a mere change
wherein Local 43 emerged as a continuation of
the same bargaining entity or even as an entity'
which included the old bargaining entity.
However, the bargaining entity, as far as Respon-
dent was concerned, was the "Web Division" of
Local 143 and contrary to the Administrative Law
Judge's finding, Houston Local 43 emerged not only
as an entity which included the old bargaining entity
1 See art. III of the constitution as set forth under heading 16 of the
Administrative Law Judge's Decision. The two divisions had two common
officers-the president and the secretary-treasurer. However, the president,
a Web Division member, presided only over the Web Division meetings.
(the "Web Division" of 143) but as a continuation of
that same bargaining entity. The Administrative Law
Judge's finding in the circumstances of this case is
based on nothing more than a meaningless technical-
ity which completely ignores what has been the
Board's paramount concern in such cases--employ-
ees' Section 7 right to choose their own bargaining
representative.
The facts as found by the Administrative Law
Judge are not in dispute. But the Administrative Law
Judge has failed to grasp fully the most important
fact in this case . That is that Austin Local 143 was a
so-called combination local which was composed of
two separate and distinct divisions: a Web Division,
consisting of newspaper pressmen (all of whom
worked for Respondent), and a Commercial Divi-
sion, consisting of pressmen who do job printing
(none of whom worked for Respondent). These two
divisions were for all intents and purposes two
separate locals. In fact, Local 143's constitution
provided for these separate divisions and for internal
administration on a divisional basis. Thus, as
provided for in the constitution, each division had
separate officers.I The president of Local 143
presided over Web Division meetings ; a vice presi-
dent, who was a member of the Commercial
Division, presided over Commercial Division meet-
ings. Each division had its own executive and
negotiating committees; Respondent never dealt
with or bargained with any member of Local 143
who was a member of the Commercial Division.
Each division had separate meetings at separate
times, and these meetings were limited to its own
members. There were no common functions even of
a social nature.
After the merger of the Web Division of Local 143
with Houston Local 43, a web local, the Local 143
Web Division was dissolved and was absorbed into
Houston Local 43 as the Austin Web Division.
Although, after the merger, the Austin'Web Division
had no constitutional officers of Houston Local 43
(except Gannaway who functioned as chapel chair-
man), Local 43 allowed it to function as it had in the
past. Thus, Hurst, the former president of Local 143,
became what may be described as chairman or area
representative of the Austin Web Division; Dyer, the
former secretary-treasurer of Local 143, performed
the same duties for the Austin Web Division, and
Joyce, former chairman of the Web Division of
Local 143 executive committee, continued as chair-
man of the Austin Web Division of Local 43. In
short, the same people who had represented Respon-
Only the secretary-treasurer had contact with both divisions ; this contact
involved primarily the dues collecting and the bookkeeping functions, such
as transmitting assessments to the International.
210 NLRB No. 9
NEWSPAPERS, INC. 9
dent's web pressmen prior to the merger continued to
do so after the merger.2
Nor did the Administrative Law Judge question the
method by which the merger of the Web Division of
143 with Local 43 was effected. All of the require-
ments considered important by the Board, such as
proper notice, discussion of the issues, and a secret
ballot, were met. In fact, 19 of the eligible 20 or 21
employees of Respondent who were members of the
Web Division voted unanimously in favor of the
merger . There is no question that any of Respon-
dent's employees did not have an opportunity to
express their desires through means heretofore
approved by the Board.3 Thereafter, Houston Local
43 properly ratified the merger. In this regard, the
Administrative Law Judge, in considering what has
been the primary concern of the Board in such cases,
found that it was the desire of the Web Division
members of Local 143 to merge with and bargain
jointly with Houston Web Local 43.4
An even clearer indication of the desires of
Respondent's employees followed. For, after the
Respondent refused to recognize and bargain with
Local 43 in July and August 1972, Local 43 in early
October solicited and obtained authorization cards
from 44 employees or 100 percent of the web
pressmen employed by Respondent.5 When these
cards were presented to Respondent with a request to
bargain, the Respondent refused to look at the cards.
Thereupon, Local 43 filed a petition on October 26,
1972. However, as a result of a dispute between the
S This factor , that the employees involved are assured the continuity of
their present organization and representation, has been deemed of primary
importance in amendment of certification cases which involve basically the
same issue as the instant case--a change in representative . See The Hamilton
Tool Company, 190 NLRB 571; Gulf Oil Corporation, 135 NLRB 184.
a As the Administrative Law Judge noted , the Web Division members of
Local 143 followed their constitution in this unusual situation as closely as
possible , the only difficulty being that the constitution refers to "merger" as
a merger of an entire union . However , as he also noted , strict adherence to
the constitution is not the controlling factor in such cases; "What is
important is whether the employees (members ) had proper opportunity to
express their desires."
Member Jenkins is satisfied that the record amply supports the
conclusion that the one employee nonmember was given the opportunity to
vote at the time the merger vote was taken See North Electric Company, 165
NLRB 942; The Hamilton Tool Company, 190 NLRB 571.
See Canton Sign Co., 174 NLRB 906. See also East Dayton Tool & Die
Company, 190 NLRB 577; Montgomery Ward & Ca, Incorporated 188
NLRB 551; Eqwpment Manufacturing, Inc., 174 NLRB 419; and Safeway
Steel Scaffolds Company of Georgia, 173 NLRB 311. Although the latter are
amendment of certification cases they set forth the factors deemed
significant by the Board in cases involving merger , substitution , or change
of representative , and clearly indicate that the factor of primary importance
is whether the employees have had an opportunity to pass on the change of
representative.
5 Respondent 's employee complement had doubled between February
and October with the addition of a new press. However, the General
Counsel did not establish either the number of employees employed on July
10, 1972, when the Union demanded bargaining or that the Union
represented a majority of the employees on that date.
9 The discharges of October 24 and 27 were alleged as violations of Sec.
8(aX3) in the instant charge . They were also the subject of a grievance filed
by the Union. After Respondent refused Local 43's request for arbitration,
pressmen and the Respondent, the Respondent
terminated 16 pressmen on October 24 and an
additional 20 pressmen on October 27, 1972, which
substantially wiped out the bargaining unit. As a
result, Local 43 withdrew its petition on January 30,
1973, after the issuance of the complaint in this case .6
It is clear that the employees involved, as found by
the Administrative Law Judge, desired to be repre-
sented by Local 43; this is not a case where the
employees involved have been submerged into a
larger unit without their approval.
Moreover, it is clear, as found by the Administra-
tive Law Judge, that Respondent did not oppose the
merger as such. Respondent was notified by letter of
January 7, 1972, of the merger; it made no reply.
And at the February 15, 1972, meeting with Local 43
officials Respondent questioned only the effect the
merger might have on the local nature of bargain-
ing.7 We do not contend that by this conduct
Respondent accepted the merger ; 8 but it is also clear
Respondent did not reject it. Rather, in our opinion,
Respondent evidenced bad faith by not rejecting the
merger if such was its intent and thereby at least
implicitly acquiesced in the merger until July when it
suddenly announced that it would not bargain with
Local 43.9
Why then did Respondent refuse to bargain in July
with the same people it had negotiated with for
years? It had no reason to doubt the validity of the
Local 43 filed a Sec . 301 suit to compel arbitration . United States District
Judge Jack Roberts for the United States District Court, Western District of
Texas, Austin Dvision (Civil Action No. A-72-CA- 153, decided 11 /27/72)
found in favor of Local 43 and ordered arbitration . In so finding, the judge
found Local 43 the successor to Local 143 and that the collective -bargaining
agreement was a valid and enforceable agreement between Local 43 and
Respondent . The Acting Regional Director declined to issue an 8(aX3)
complaint on the grounds that further proceedings on the charge should be
deferred for arbitration pursuant to Dubo Manufacturing Corporation, 142
NLRB 431.
7 In this connection the Administrative Law Judge specifically discredit-
ed Brown 's testimony that he had referred to negotiating a contract only
with Local 143 at the February 15 meeting.
a The Administrative Law Judge found the evidence insufficient to find
Respondent accepted Local 43 as successor to Local 143 primarily because
Hurst for Local 143 signed a letter of submission for arbitration on
February 15 , 1972. As the Administrative Law Judge points out , however,
the letter was a joint letter to the American Arbitration Association from
Respondent and Local 143 written on Respondent 's stationery and
therefore presumably prepared by Respondent . Moreover, the subject of the
arbitration was a dispute which arose in October 1971 prior to the merger
and was originally filed by Local 143 . In any event, Local 43 paid the
substantial arbitration costs involved in that proceeding which was pursued
to completion after the merger . In our opinion , the February 15, 1972, letter
signed by Hurst for Local 143 in no way affects or raises any question as to
the validity or existence of the February 1, 1972, merger.
9 We note that District Judge Roberts in his opinion in the Sec. 301 suit
indicated that Respondent 's counsel had stated in open court that
Respondent had no objection to dealing with either Local 143 or Local 43.
Likewise, we note Respondent attorney's letter to Local 43's attorney of
December 18, 1972 , in which he requested that Local 143 and/or Local 43
supply Respondent with pressmen. (See heading 26 of the Administrative
Law Judge's Decision.)
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merger; nor is there any evidence that any employee
complained to it about the merger.10 It obviously was
not concerned with the desires of the employees,11
nor could it bargain with the then existing Commer-
cial Local 143 as that local represented only
commercial pressmen and Respondent employs no
commercial pressmen . It therefore appears that
Respondent either saw an opportunity to rid itself of
a union or felt that it had the right to pick and choose
its employees ' bargaining representative regardless of
the employees' desires.
The Administrative Law Judge's decision rests on a
meaningless technicality which totally ignores the
desires of the employees involved and Board preced-
ent in this area. We would adhere to the Board's
consistent policy of honoring the desires of employ-
ees pursuant to Section 7 of the Act, which clearly
grants them the "right to bargain collectively through
representatives of their own choosing." An employer
has no right of choice, either affirmatively or
negatively, as to who will sit on the opposite side of
the bargaining table.12 There are reasons why the
Board has not accepted and should not accept
mergers or substitutions of unions ; but none of these
reasons are present in this case.13 There is no
question here as to the true desires of the employees
and no question with regard to the validity of the
method by which the employees ' desires were made
known. Accordingly, we will find the violation as
alleged in the complaint.
within the appropriate unit for purposes of collective
bargaining in respect to wages, rates of pay , hours of
employment, and other terms and conditions of
employment within the meaning of Section 9(a) of
the Act.
5. By refusing on and since July 13, 1972, to
bargain with Local 43 as exclusive representative of
the employees in the above-described appropriate
unit, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(aX5) and (1) of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act. A
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(aX5)
and (1) of the Act by refusing to bargain with Local
43 and its designated agents as the exclusive
representative of its employees in an appropriate
unit, we will order that the Respondent cease and
desist from engaging in such unfair labor practices
and, upon request, bargain collectively with the
Local 43 and its designated agents concerning wages,
rates of pay, hours, and other terms and conditions
of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
ORDER
CONCLUSIONS OF LAW
1. Newspapers, Inc., Publishers of The Austin
American and The Austin Statesman, the-Rfespon-
dent, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Houston Newspaper Printing Pressmen's Un-
ion No . 43 is, and at all material times has been, a
labor organization within the meaning of Section
2(5) of the Act.
3. All pressroom employees employed at Respon-
dent's pressroom operated in Austin, Texas, but
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.
4. At all times since February 1, 1972, Houston
Newspaper Printing Pressmen's Union No. 43 has
been the exclusive representative of all the employees
10 Whether or not the employees involved have complained of or taken
any action opposed to a change of representative has been one of the factors
considered by the Board in deciding such cases. (See The Hamilton Tool
Company, supra)
11 Note that shortly thereafter, while still refusing to bargain, it refused
to even look at authorization cards which are at least considered to be some
evidence of employee desire or choice.
12 See N.L.R B. v Roscoe Skipper, Inc., 213 F.2d 793, 794 (C.A. 5).
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board orllers that the Respondent, News-
papers, Inc., Publi%hleis of The Austin American and
The Austin Statesmnan, Austin, Texasi its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively
with Houston Newspaper Printing Pressmen 's Union
No. 43 and its designated agents , as the exclusive
representative of its employees in the following
appropriate unit with respect to rates of pay, wages,
hours of employment , and other terms and condi-
tions of employment:
All pressroom employees employed in the pub.
lisher's pressroom operated in Austin, Texas, but
excluding guards, watchmen and supervisors as
defined in the Act.
13 Cf. Sherwood F'org Inc., 188 NLRB 131. Likewise see Rinker Materials
Corporation, 162 NLRB 1688; M. A. Norden Company, Inc., 159 NLRB
1730, and Yale Manufacturing Company, Inc., 157 NLRB 597. Although the
latter are amendment of certification cases , they demonstrate when and for
what reason the Board will not allow substitution or merger of representa-
tives. These cases point out the Board 's primary concern that the unit
employees have had an opportunity to pass upon the transfer of
representation.
NEWSPAPERS, INC.
(b) In any like or related manner interfering with
the efforts of the above-named labor organization to
bargain collectively on behalf of the employees in the
above-described unit.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Upon request meet and bargain with the above-
named labor organization and its designated agents
as exclusive representative of all its employees in the
aforesaid appropriate unit with respect to wages,
rates of pay, hours of employment, and other terms
and conditions of employment and embody in a
signed agreement any understanding reached.
(b) Post at its place of business in Austin, Texas,
copies of the attached notice marked "Appendix." 14
Copies of said notice, on forms provided by the
Regional Director for Region 23, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
14 In the event that this 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
- NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request , meet and bargain
collectively with Houston Newspaper Printing
Pressmen's Union No. 43, and its designated
agents , as your exclusive representative. The
bargaining unit is:
All pressmen employees employed in the
Publisher's pressroom operated in Austin,
Texas, but excluding guards, watchmen and
supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of the
above-named Union to bargain on behalf of the
employees in the above-described unit.
NEWSPAPERS, INC.,
PUBLISHERS OF THE
AUSTIN AMERICAN AND
THE AUSTIN STATESMAN
(Employer)
11
Dated By
(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 compli-
ance with its provisions may be directed to the
Board's Office , Dallas-Brazos Building, 1125 Brazos
Street , Houston , Texas 77002, Telephone
713-226-4296.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE , Administrative Law Judge: This
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended , was tried pursuant to due
notice on June 4 and 5, 1973, at Austin, Texas.
The charge was filed on December 12, 1972. The
complaint in this matter was issued on January 26, 1973.
The issues concern whether Respondent has violated
Section 8(a)(5) and (1) of the Act by refusing to bargain
with Houston Newspaper Printing Pressmen's Union No.
43.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel, Charging Party, and Respondent and have been
considered.
Upon the entire record in the case and from my
observation of witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and
admissions therein.
Newspapers, Inc., publisher of The Austin American and
The Austin Statesman, the Respondent, is, and has been at
all times material herein, a corporation duly organized
under and existing by virtue of the laws of the State of
Texas . At all times material herein , Respondent has
maintained its principal office and place of business at 308
Guadalupe, Austin, Texas, where it is engaged in the
newspaper publishing business . Its newspapers , The Austin
American and The Austin Statesman , are the only
newspapers involved in this proceeding.
During a 1-year representative period , Respondent held
membership in or subscribed to interstate news services,
published nationally syndicated features, advertised na-
tionally sold products, and had an annual gross volume
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceeding $200,000. As conceded by the Respondent and
based upon the foregoing, it is concluded and found that
Respondent is now, and has been at all times material
herein , an Employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Austin Printing Pressmen and Assistants' Union No.
143, and Houston Newspaper Printing Pressmen's Union
No. 43, each is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Alleged Refusal To Bargain
Section 8(aX5) and (1) of the Act
The facts relating to Respondent's alleged refusal to
bargain with Local 43 may be summarized as follows:
1. All pressroom employees employed in the publisher's
pressroom operated in Austin, Texas, but 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. The Respondent and Austin Printing Pressmen and
Assistants' Union No. 143, for many years preceding
September 30, 1971, had collective-bargaining understand-
ings or agreements with respect to the appropriate
bargaining unit set forth above.
3. On September 30, 1971, Respondent and Austin
Printing Pressmen and Assistants' Union No. 143 execut-
ed a collective-bargaining agreement which had as part
thereof the following section.
SECTION I
Witnesseth that this Contract shall be effective from
the 30th day of September, 1971, to the 30th day of
September, 1972 and shall continue in effect for one
year thereafter unless sixty days' written notice of
intention to change shall be given by either party prior
to the expiration date of this Contract. Pending the
determination of the conditions of a new Contract, this
Contract shall remain in effect.
4. Prior to February 1, 1973, Austin Printing Pressmen
and Assistants ' Union No. 143's membership may be said
to have been divided into two categories . One category
included those who worked for newspapers as printing
pressmen and assistants . The other category included those
who worked as commercial printmen or assistants.
The constitution and bylaws of Local 143 and the
1 Respondent's brief appears to argue that Local 143's internal affairs
were not conducted on the basis of divisions (Web and Commercial). Thus,
Respondent points out testimony of Joyce to the effect that the
International at one time had turned down a request for division of the
Union into such parts . Considering Joyce's testimony as a whole and the
practice of the Union provided in effect that the internal
administration of the Union was conducted on the basis of
two divisions . One division, called the Web Division,
consisted of the newspaper printing pressmen and their
assistants.' The other division , called the Commercial
Division , consisted of commercial pressmen and their
assistants.
The constitution and bylaws of Local 143 and the
practice of such Union provided in effect that the Web
Division members controlled and administered union
affairs pertaining to such division . Similarly, the Commer-
cial Division controlled and administered the affairs of
members in such division.
5. On September 11, 1973, notice was sent to all
members of the Web Division (of Local 143) concerning a
proposed vote at a meeting to be held on October 5, 1971.
Said notice was as follows:
t i t i •
September 11, 1971
Attention all Web (Newspaper) members only, of
Austin Printing Pressmen and Assistants' Union # 143:
On Tuesday, October 5, 1971, during the regular
monthly meeting from four until five P.M. at the CWA
Hall; 708 Rio Grande, you will be asked to vote by
secret ballot as follows:
YES, I do wish to merge with Houston , Texas Printing
Pressmen #43 for the purpose of joint negotiation of
wages and other working conditions.
NO, I do not wish to merge with Houston, Texas
Printing Pressmen #43 for the purpose of joint
negotiation of wages and other working conditions.
Be further advised that the foregoing vote will not
affect the present charter of Austin Printing Pressmen
and Assistants Union and/or the Commercial members
thereof in any manner.
Sincerely,
/s/ L. B. Dyer
L. B. Dyer, Secy. # 143
• s s s s
The membership of the Web Division of Local 143 and
the employees constituting the appropriate bargaining unit
at Respondent's place of business was coextensive except
for one employee, named Wienart. Wienart was not a
member of Local 43. Hurst, president of Local 143,
notified Weinart of the scheduled meeting and invited him
to attend.
6. The Web Division of Local 143 held the meeting
logical consistency of all the facts , I am persuaded that Joyce, in such
testimony, was alluding to an attempt to divide Local 143 into two separate
unions such as Local 143A and 143B . The overall facts and Local 143s
constitution clearly establish the divisional setup of the Union.
NEWSPAPERS, INC.
referred to in the notice set out above on October 5, 1971.
Wienart, the employee who was not a member, did not
attend? There were 19 members of the Web Division
present and all 19 voted affirmative to the proposition.3
Thus, the Web Division voted to "merge with Houston,
Texas Printing Pressmen #43 for the purpose of joint
negotiation of wages and other working conditions."
7. The Austin Printing Pressmen and Assistants' Union
No. 143, by letter dated October 11, 1971, and signed by L.
B. Dyer, secretary-treasurer, notified the International
Union of what had transpired with respect to its action
toward merger of the Web Division members with Local
43. Such letter set forth the following:
Mr. A. J. Rohan, President
Board of Directors
I.P.P. & A.U. of N.A.
1730 Rhode Island Ave. N. W.
Washington, D. C.
Dear Sir:
October 11, 1971
On September 7, 1971 in regular monthly meeting, a
resolution was read proposing merger with Houston
Web Pressmen #43.
On September 11, 1971 copies of the enclosed letter
were mailed to each web member under the jurisdiction
of this local.
On October 5, 1971 at the regular monthly meeting, the
members of our web division, by secret ballot, voted
nineteen for and none against merger with our sister
Local #43 at Houston, Texas.
Having complied with all provisions of Article 1,
Section 15 of the International Constitution and By-
Laws, the Web members of Austin Printing Pressmen
and Assistants' Union # 143 respectfully request
permission for merger with Houston Web Local #43.
Sincerely yours,
Austin Printing Pressmen
& Assistants' Union
# 143
/s/ L. B. Dyer
L.B. Dyer, Secretary-
Treas.
s s s a s
8. Local 43, Houston Newspaper Printing Pressmen's
Union, by letter dated October 18, 1971, and signed by
Eddie Volotko, secretary-treasurer, notified the Interna-
tional Union that Local 43 was in accord with the actions
2 Although I have found that Wienart was given notice of said meeting,
whether Wtenart was given notice and whether he attended such meeting
would not affect the disposition of the issues in this case.
13
of Local 143 and requested approval of such action by the
International.
9. The International Union, by letter dated December
10, 1971, and signed by J. Frazier Moore, secretary-
treasurer, notified Locals 143 and 43 as follows:
Mr. L. B. Dyer, Sec.
Mr. Marvin O'Neal, Pres.
Printing Pressmen's No. 143
Austin, Texas
Dear Sirs and Brothers:
0
December 10, 1971
The Board of Directors at the meeting held on
December 7-8, 1971, approved the request of the web
members of your local union transferring to Houston
Newspaper Local No. 43.
Houston Newspaper Local No. 43 has been notified
and you will probably receive a follow-up letter from
this office in the near future.
With kindest regards,
Sincerely and
Fraternally,
/s/ J. Frazier Moore
Secretary-Treasurer
FOR THE BOARD OF
DIRECTORS
JFM/lle
cc: Pres. Rohan
Eddie Volotko, N-43
Membership Records Dept.
s t w •
10. The Austin Printing Pressmen and Assistants'
Union No. 143, by L. B. Dyer, secretary, on January 6,
1972, sent a letter to Respondent which set forth as
follows:
s s s s
Mr. Richard Brown
Publisher American-Statesman
308 Guadalupe
Austin, Texas
January 6, 1972
Dear Sir:
The members of Austin Printing Pressmen, together
with their respective families, wish to thank you for the
Christmas party held in the press room during the
holiday season.
3 The precise number of members in the Web Division of Local 143 at
the time was not established . It appears that the number was 20 or 21.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Every one enjoyed the fellowship and the food was
delicious.
In addition to the foregoing I am listing the names and
addresses of our executive officers for the coming year.
They are:
Mr. Kenneth Hurst, President-3203 Overcup
Oak Drive-78704
Mr. L. B. Dyer, Sec'y. Treas.-4703 Strass
Dr.78731
Mr. Chas. Joyce, Chin. Exec. Comm.-1503 W.
40th-78756
Mr. J. L. Gannaway, Chapel Chmn. 2111 W.
10th-78703
Sincerely Yours,
Austin Printing Pressmen
& Assistants' Union
# 143
/s/ L.B. Dyer
L.B. Dyer, Sec'y.
11. On January 7, 1972, Volotko, secretary- treasurer of
Local 43, sent the following letter as indicated.
Mr. Richard F. Brown, Publisher,
American Statesman,
Guadalupe & 4 th.
Austin, Texas 78701
January 7, 1972
Mr. Bill M . Meroney, General Manager,
American Statesman,
Guadalupe & 4 th.
Austin, texas 76701
Gentlemen:
Registered Mail
Return Receipt
Requested
Please be advised that the newspaper pressmen of
the Austin P.P. & A.U. # 143 union have effected a
merger into the Houston N.P.P. #43 effective Februar-
y 1, 1972, and Houston N.P.P. #43 as the successor of
the newspaper pressmen of Austin P.P. & A.U. # 143
will assume both the bargaining and contractual
obligations of former newspaper pressmen of Austin
P.P. & A.U. # 143 and will administer the current
collective bargaining contract for its term.
Sincerely,
/s/ Eddie Volotko
Secretary-Treasurer,
Houston N .P.P. # 143.
cc: Bill M. Meroney
Kenneth N. Hurst
L. B. Dyer
12. On January 27, 1972, L. B. Dyer, secretary- treasur-
er of Local 143, transmitted the following letter to the
International Union.
Mr. J. F. Moore
Secy. Treas. I.P.P. & A.U.
1730 Rhode Island Ave. N. W.
Washington, D. C.
January 27, 1972
Dear Sir:
This is to advise your office that as of February 1, 1972
the web division of Local 143 will merge with Houston
newspaper pressmen #43.
I am enclosing January per capita tax for all members
and will pay for February on for commercial members
only. Brother Eddie Volotko, Sec'y . of #43 has
instructed me to pay to him the per capita on all web
members beginning in February.
Until further notice , I shall continue doing secretarial
work for the commercial division as well as handling
their finances . When one of the commercial members is
selected for this service, I shall so notify your office.
Sincerely yours,
L.B. Dyer, Sec'y. # 143
13. Prior to February 1 , 1972, Local 43 determined that
each of its members , individually , in effect had an
investment in its total treasury of $115. It therefore
informed Local 143 that funds representing $ 115 per Web
member of the Web Division should be transferred from
Local 143's treasury to Local 43.
Prior to February 1, 1972, aware of the need to transfer
$115 per Web member to Local 43, Local 143 divided its
treasury figuratively into two equal divisions . Local 143's
Commercial Division was to retain one-half ( 1/2) of the
treasury , and the other half of the treasury was deemed to
belong to the members of the Web Division.
The portion of Local 143's treasury deemed to belong to
the Web members was sufficient to meet the need for
NEWSPAPERS, INC.
forwarding $115 per Web member to Local 43. Such
amount of money, for approximately 20 members, at the
rate of $115 for each member, and a few dollars relating to
initiation fees , etc., was forwarded to Local 434 on or
around February 1, 1972. In addition to the monies
transferred to Local 43, there was approximately $1,000
which Local 143 kept for the Web members. Such money,
around 9 months later, was transmitted to individuals,
acting on behalf of the said Web members but not for
Local 143 and 43. Said money was later expended for
various needs of some of said Web members.
14. On or about February 1, 1972, the Web members of
Local 143 were transferred to Local 43 and their dues
thereafter were paid to Local 43.
15. L. B. Dyer continued to serve as an officer for
Local 143 for about a month until a new officer was
selected as secretary and treasurer and trained for such job.
16. Article III of Local 143's constitution sets forth the
following as regards officers:
s s * s s
ARTICLE III
Officers
Sec. 1. The elective officers of this local shall
consist of a President, 1st Vice-President, 2nd Vice-
President, Secretary-Treasurer, Two Recording Secre-
taries , Two Sergeant-at-Arms and four Committeemen.
Sec. 2. The President shall be elected from and by
the membership at large.
Sec. 3. One Vice-President, together with two other
members shall be elected by the Commercial Division
and they shall constitute the executive Committee for
the Commercial Division.
Sec. 4. One Vice-President, together with two other
members shall be elected by the Web Division and they
shall constitute the Executive Committee for the Web
Division.
In addition the constitution provides that where there are
two members in an office, that there shall be a chapel
chairman.
Prior to February 1, 1972, the members of the Web
Division of Local 143 who were officers of Local 143 were
as follows: Kenneth Hurst-president, L. B. Dyer-secre-
tary-treasurer; Charles Joyce-vice president a 9 chair-
man of executive committee of Web Division; and J. L.
Gannaway-chapel chairman.
After February 1, 1972, for about a month, L. B. Dyer
continued functioning as Local 143's secretary and
treasurer until the new secretary-treasurer was selected and
trained.
After February 1, 1972, none of the Web Division
members who were officers of Local 143 functioned as
constitutional officers of Local 43. J. L. Gannaway,
4 Approximately $80 above the amount necessary for the $115 share
needed for 20 members was transmitted
5 The facts reveal that Local 43 assumed and took care of Local 143's
is
however, functioned in the comparable position of chapel
chairman.
The record is not clear whether new membership cards
for Local 43 were issued for the former 143 Web members
or not. The handling of the "merger" and related affairs
was somewhat confused . As indicated elsewhere, the
International directory in June 1972, sets forth Hurst as
president of Local 143 . Since such directory revealed the
change for the secretary-treasurer, it would appear that the
directory should have reflected a change for the president
if there were a change . It very well may be that a new
president was not selected for Local 143.
As a result of the transfer of funds and the commence-
ment of payment of dues to Local 43, all of the Web
members of Local 143 prior to February 1, 1972, were
transferred to Local 43 . The transfer was a collective
transfer and amounted to a dissolution of the Web
Division of Local 143. Local 43 handled the transfer of
such Web members as a transfer of the entire former Web
Division of Local 143. Local 43 administered the collective
affairs of such former members of Local 143 as a separate
Web Division. Thus, the former Web Division members of
Local 143 became members of the Austin Web Division of
Local 43.
As a result of the actions by Local 43, Local 143, the
International Union, the transfer of funds and the
commencement of payment of dues by former Web
members of Local 143 to Local 43, it may be said that the
Web Division of Local 143 was dissolved, and that instead
it became the Austin Web Division of Local 43. Local 43
absorbed the Austin Web Division into its total union
structure but allowed it to function essentially as it had in
the past. Thus, Hurst, former president of Local 143,
became what may be described as chairman or area
representative of said Austin division; Dyer, former
secretary-treasurer of Local 143, performed the same
duties for this Austin Web Division; Joyce, former vice
president and chairman of the Web Division executive
committee of Local 143, essentially performed the same
duties as chairman of the executive committee of the
Austin Web Division. As indicated, Gannaway, former
chapel chairman of Local 143 Web Division, continued as
chapel chairman of the Austin Web Division.5
17. Sometime in February, prior to February 15, 1972,
Hurst (one of Respondent's employees, a former member
of the Web Division of Local 143, and the former president
of Local 143) telephoned Respondent's Publisher Brown.
Hurst told Brown in effect that Volotko and Pizzo from
Houston would be in town and that he desired to arrange a
meeting between Brown and Volotko and Pizzo so that
they could sit down and talk.
The testimony of Hurst and Brown as to the arrange-
ments for this proposed meeting is sparse . The overall facts
and Brown's testimony, however, reveal that the purpose of
this meeting was clear . Thus, Brown had received the letter
from Volotko informing him of the merger of the Web
pressmen from Local 143 into Local 43 and that Local 43
would assume the contract and administration thereof.
financial obligations with respect to the employees in the appropriate
collective bargaining unit after February 1, 1972.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
What occurred in the telephone conversation between
Brown and Hurst is revealed by the following credited
excerpts from Brown's testimony.
A. Mr. Hurst called me on the telephone and said
that two gentlemen from Houston would be in town,
Mr. Volotko and Mr . Pizzo, and that he requested an
opportunity for us to sit down and talk.
Q. All right. And Mr. Hurst was a pressman?
A. Yes. That's correct.
Q. And did you agree to talk to them?
A. I asked him who were these gentlemen from
Houston representing, 143 or 43.
Q. O.K. And what did he say?
A. He said they really just wanted to come in and
talk.
* * * *
18. On February 15, 1972, the meeting previously
arranged by Hurst and Publisher Brown occurred. It is
clear that Publisher Brown and General Manager Meroney
attended for the Respondent. There may have been several
others who attended for the Respondent, but whether they
did or did not does not affect the meaning of the facts.
President Pizzo and Secretary-Treasurer Volotko of Local
43 and Hurst and Dyer attended for the Union.
What first occurred at this meeting is revealed by the
following credited excerpts from Brown's testimony.6
* * * * *
A. Mr. Hurst introduced Mr. Pizzo and Mr.
Volotko and we shook hands. They sat down. And I
turned to Mr. Pizzo, I think it was, and said, "May I
ask who you represent here today?"
And Mr. Pizzo said, "I am president of Houston
Local 43."
And I said, "Well, we have a contract with Austin
Local 143 and I don't think we have a whole lot to talk
about."
Q. All right. Did Mr. Pizzo make any other
representations to you about who he was representing?
A. Yes. When I told him that we didn't have much
43 Hurst's testimony indicated that Brown expressed
concern about local autonomy for the Austin Web
pressmen.
Brown's testimony, as to what was said on February 15,
1972, included remarks as revealed by the following
excerpts from his testimony.
* * * *
Q. Did you express any intention about your
contract with 143? What you intended to do.
A. I told him that we intended to negotiate with
143 and as we had in the past arrive at a signed
contract.
Q. Is it your feeling that you imparted the message
to them that you weren't going to bargain with 43
before they left that room?
A. I suspect I did impart that message to them, not
verbatim, but probably from things that I had said in
telling him that I didn't want to talk with anyone from
43.
* * * * *
I am persuaded from all of the facts and all of the
testimony that Brown did not express an intention "to
negotiate with Local 143 and as we had in the past arrive at
a signed contract." I am persuaded that Brown expressed
concern over the local autonomy of the Austin Web
pressmen. I am persuaded that Brown's testimony on this
point is his interpretation and conclusion of the meaning of
what he had said. I discredit Brown's testimony to the
effect that he explicitly referred to negotiating a new
contract with Local 143. I note that the old contract was
not due to expire for some 5 months.
I am persuaded and credit the testimony of General
Counsel's witnesses to the composite effect that Brown and
the various union officials discussed the question of
merger, and of the ramifications of mergers as to local
autonomy.
19. Prior to February 1, 1972, Local 143 had initiated a
grievance concerning the discharge of Melvin Latham. On
February 15, 1972, a letter of submission of this grievance
on letter stationery of Respondent's attorney, Gee, was
executed by Hurst and Gee. Said letter is as follows:
to talk about with the Houston representatives of 43, he * * * * *
said , "Well, I'm kind of an International representa-
tive." February 15, 1972
* * * * *
The contentions of General Counsel and the Charging
Party as compared to those of Respondent reveal a disputc
as to the tenor of this meeting. The General Counsel and
Charging Party contend, and the General Counsel's
witnesses (Pizzo, Volotko, Hurst, and Dyer) testified in
support thereof, that Respondent raised no question as to
the merger of the Web pressmen from Local 143 into Local
6 I discredit Pizzo's testimony contradictory of this finding. I am
persuaded that Pizzo had not recalled these details and that Brown testified
Mr. Helmut O. Wolff
American Arbitration Association
401 Praetorian Building
1607 Main Street
Dallas, Texas 75201
Dear Mr. Wolff:
As required by SXII (2Xc)(3) of "Newspaper
Contract Agreement" between Austin Printing Press-
truthfully as has been set out.
NEWSPAPERS , INC. 17
men and Assistants' Union Number 143 and Newspa-
pers, Inc., the parties jointly request appointment by
you of an arbitrator having experience in newspaper
arbitrations. The case is a discharge case. Please advise
the undersigned of your designation.
IPP & AU, Local 143
/s/ Kenneth N. Hurst
for the Union
Yours very truly,
Newspapers, Inc.
/s/ Thomas G. Gee
Attorney for the
Employer
20. The official directory of the International Printing
Pressmen and Assistants' Union of North America, dated
June 15 , 1972, reveals that it is "A list of officers of the
International Printing Pressmen and Assistants' Union;
Representatives and Organizers; names and addresses of
secretaries and presidents of all subordinate unions,
conference and councils ; together with names and address-
es of secretaries of Allied Printing Trades Councils." On
page 6, said directory reveals the following:
* * * *
143-Austin, Texas. Charles S. Mazyrack, 605 Karolyn
Street, Round Rock, Texas 78664. President, Kenneth
Hurst, 3203 Overcup Oak Drive, Austin, Texas 78704.
Respondent's brief asserts that Respondent received this
document around the date thereof. There is no evidence in
the record to support this assertion.
21. The following letter was transmitted to Respondent
on July 10, 1972.
Kennith Hurst , Chmn., M. Hepburn and Chas. Joyce.
Respectfully yours,
L. B. Dyer, Secy.
Austin Div.
HOUSTON NEWSPAPER
PRINTING PRESSMEN
# 43
22. On July 13, 1972, Respondent transmitted the
following letter to L. B. Dyer.
L. B. Dyer
Secretary
Austin Printing Pressmen and
Assistants Union Number 143
Austin, Texas
July 13, 1972
Dear Sir:
The Austin American-Statesman recognizes and
bargains with IPP & AU Local 143. Local 143 is the
certified representative for our pressroom employees.
We do not recognize or bargain with any other labor
organization on behalf of our pressroom employees.
Yours truly,
The Austin American-
Statesman
P. F. Fincher,
Chairman
Negotiating Comm.
ifm/FF
* *
P. F. Fincher, Circulation Dir.
Newspapers, Inc.
American-Statesman
Austin, Texas
Austin, Texas
July 10, 1972
23. On August 8, 1972, Kenneth Hurst, Charlie Joyce,
and perhaps one other Austin Division Web member of
Local 43 went to Circulation Manager Fincher's office and
asked for a meeting . Fincher agreed to meet with these
employees . What occurred is revealed by the following
credited excerpts from Joyce's testimony.?
Dear Sir:
This is to give the required sixty day notice of our
desire to negotiate a new working agreement with
publisher of the American-Statesman.
A committee representing the union has been appoint-
ed as follows:
Respondent 's brief asserts to testimony from Joyce indicating that he
was vice president of Local 143 in October 1972 Joyce's total testimony and
A. Well, at that time we usually try to resolve these
things before September the 30th if we can, so we went
in on August the 8th and we asked for a meeting. He
agreed to meet with us. And we went to his office and
sat down and exchanged pleasantries and we tried to
get down to business. And he stopped us and he said
the total facts reveal that this testimony is inaccurate.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Just a moment." He said, "Are you representing-Is
your committee representing 143 or 43?"
And we told him "Well, naturally, since we are
members of 43, we are representing No. 43."
And he said, "I have nothing more to say to you. I
will not negotiate with you."
And he said, "Well, Mr. Fincher, we have to get this
resolved some way."
And he said, "There's no way. I won't negotiate with
you.
24. Later, Joyce and the other members of the Austin
Division of Local 43 secured new authorization cards from
Respondent's printing pressmen employees. What oc-
curred is revealed by the following credited excerpts from
Joyce's testimony.
* * *
A. That's right. And so after we got out of that
meeting, well I asked Mr. Hurst, the president of the
organization, to call the president of our parent local,
the Houston Local and inform him that they refused to
negotiate with us and we didn't really know what to do.
We were in a quandary.
And so we called Pizzo and he said, well, that we
would have to go on then, I guess, with the certification
election to prove to them that we are-and we will send
you the cards to take a poll of all the members and see
if you have, what the outcome will be.
Well, we received the cards sometime later and we
distributed them. And we had, we gave everyone an
opportunity in the pressroom. We gave them all a card
and they all voted and we had 42 or 44 affirmative
votes. The exact number I wouldn't be sure of.
Q. Were there any in the pressroom who refused to
sign a card?
A. No one refused to sign a card. There were some
that didn't accept a card. There were one or two that
didn't vote. But of all the people that voted we didn't
have any no votes. We we informed Mr. Pizzo of this
and he said, "Well, it still is possible to avoid having to
go through the expense to a certification election, so
why don't you take those to Mr. Meroney and offer this
to him, that you have one hundred percent behind you
and perhaps it will resolve the matter."
So we went and asked for a meeting with Mr.
Meroney and he agreed.
Q. Mr. Joyce, do you recall about when that -_s?
A. That would have been-That would have been
probably in September.
Q. Of '72?
A. I would say September of '72. The dates I don't
recall real good. But we met with him and we-
Q. Was it the same three?
A. Kenneth and I went, but I don't know whether
DePratter was with us at that time or not.
Q. All right, sir.
A. But we went in and we exchanged pleasantries
:'nd then we told them that the purpose of our visit was
to try to expedite the merger, the agreement on the
merger . And told him that we had these cards. We'd
like for him to look at them . That all the people's
names and who had voted on them and they were all
affirmative.
Q. Did you have the cards in your presence as you
talked?
A. Yes. We had the cards right there . We had them
right there . We offered them to Mr. Meroney and he
ignored them . He said that "I don't even want to look
at them ." He said , "I don't care." He said, "In the first
place, I don't see why you want to do this."
He said , "I'm not going to help you make a
mistake ." And we told him we didn't think it was a
mistake . That we thought it was a good thing,
beneficial for both parties.
And he said, well, irregardless, he didn 't want to look
at them . And so there was not any further business that
we could have attended to there, so we again left. That
meeting also last just a few minutes.
* * *
25. On or about October 27, 1972 , some of Respon-
dent's Web pressmen were discharged .8 A grievance was
apparently filed by Hurst concerning these discharges. On
October 27, 1972, the following letter was sent to Hurst.
Mr. Kenneth Hurst
Dear Mr. Hurst:
October 27, 1972
Mr. Gould has delivered to me a grievance signed
by you as "Acting Chairman".
Please allow me to call your attention to Section XII
of the contract between IPPAU Local 143 and The
American-Statesman.
The union must first contest the grievance or
discharge in an official meeting, then the matter shall
be referred to the local Joint Standing Committee upon
request "of the proper officers of the Union".
We are anxious to meet with the proper authorities
under the procedure outlined in the contract, with the
intent of solving any grievances that may exist . But first
the procedure as outlined by the contract must be
followed.
Yours truly,
Richard F. Brown
Publisher
RFB/pa
Hurst replied to the Respondent as is revealed by the
following letter dated October 27, 1972.
8 The discharge of these employees is not an issue in this case.
NEWSPAPERS, INC. 19
October 27, 1972
Newspapers, Inc.
Austin American-Statesman
P. O. Box 670
Austin, Texas 78767
Gentlemen:
We as members of Austin Printing Pressmen and
Assistants' Union contest the discharge of members
who were fired on October 24, 1972. The Union
contends the Publisher is in violation of Section 12,
Subsection C in that he did not follow the procedure set
forth.
We as members did not feel the #2 press was safe. The
Safety Committee had not inspected the press prior to
being asked to work on it. We feel their discharge was
illegal and unjustified.
We as members had a verbal contract with our
pressroom superintendent. He had agreed that we
would not be asked to switch presses after the shift had
begun or during the press run. Also, the maintenance
crew would not be asked to become a production crew.
We as members of The Union request that all men
discharged on said date be reinstated and made whole.
Sincerely,
/s/ Kenneth Hurst
Kenneth N. Hurst
Representative
Austin Printing Pressmen and Assistants' Union
KNH/skh
Hurst transmitted to the Respondent another letter
concerning this matter on October 30, 1972, as is revealed
by the following:
*
Mr. P. F. Fetcher
The AustinAmerican Statesman
308 Guadalupe Street
Austin, Texas 78767
October 30, 1972
Dear Sir:
The Austin Area Newspaper Printing Pressmen of
Houston Local No. 43, I.P.P. & A.U. do hereby contest
the discharge of D. Loyd, L. Rodriguez, C. Reeves, P.
Howard, J. McMillian, T. Monahan, P. Davis, R.
Wienart, S. Young, J. Wood, L. Allison, K. Hurst, D.
Day, B. Richmond, E. Boaz, Bodensky, J. Gomez, T.
Kieth, R. Lipking, and D. Sartin on the 27th day of
October, 1972. The union also wishes to include L. B.
Dyer, C. Joyce, Sr., B. Woods, J. Gannaway, L. B. Day,
R. Morley , R. Oneal , J. Hopwood , M. Latham, L.
Garcia , L. Davenport, M. Oneal , D. Deprator, J.
Billingsley , G. Tannehill, and M . Patty who were
discharged on the 24th day of October , 1972, and the
names of any others who the union may have
inadvertently failed to mention.
The union wishes to immediately begin grievance
procedure as set forth in Section 12 of the working
agreement.
Respectfully,
/s/ Kenneth N. Hurst;
Austin Area.
Representative
(President)
KNH:ajm
Copies: Arthur L. Pizzo
William Wheat, Attorney
D
26. On December 18, 1972, Respondent's attorney
transmitted a letter to William N. Wheat, attorney. This
letter contained, inter alia, the following paragraphs:
* * *
This is to advise you that I have been asked by Mr.
Donald S. Thomas to associate with him for the purpose of
representing Newspapers, Inc., in the matter of arbitration
of a certain dispute and/or disputes between the Austin
Printing Pressmen Union No. 143 and/or 43 and the
Austin American-Statesman.
* * *
Newspaper, Inc., has authorized me to request, through
you as attorney for Austin Printing Pressmens and
Assistants' Union No. 143 and/or 43, that the Union
supply the Austin American-Statesman with six (6)
competent journeyman pressmen. These Newspapers
desperately need these journeymen pressmen to operate
the presses in their pressroom. This request is made in
accordance with Section II, Paragraph (2) of the subject
contract; To wit:
Analysis and Conclusions
The foregoing facts clearly reveal that Local 43 made a
proper demand for collective bargaining as to the appropri-
ate bargaining unit on July 10, 1973. Respondent's reply,
dated July 13, 1972, asserting in effect that it was obligated
to bargain with Local 143, clearly constituted a refusal to
bargain with Local 43. The question presented is whether
the General Counsel has established the essential elements
necessary to support a finding of conduct violative of
Section 8(a)(5) and (1) of the Act. Thus, the General
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel has to establish that a proper demand for
bargaining was made as to the appropriate bargaining unit,
that Local 43 was the exclusive representative of the
employees in such unit, and that Respondent has refused
to recognize or bargain with such representative when
required to do so.
Basically, the litigation of the issues in this case reveals
that the General Counsel's (and Charging Party's) theory
of violative conduct is that Local 43 became the legal
successor of Local 143 in the sense of being the continua-
tion of the same bargaining entry as a result of a "merger"
around February 1, 1972. Intertwined in this issue appears
to be another contention. This contention being that
Respondent accepted the "merger" as a continuation of
such bargaining entity by its conduct on February 15,
1972, and thereafter.
That the General Counsel's and Charging Party's theory
of violation is so limited is seemingly apparent from the
total litigation of the issues. Furthermore, if it is assumed
that the General Counsel and Charging Party have not
established a violation in such regard by Respondent (of
refusing to bargain), the facts otherwise do not support a
finding of violative conduct by Respondent. Thus, al-
though the question of a proper bargaining demand by
Local 43, a refusal to bargain with Local 43 by Respon-
dent, and the appropriate bargaining unit, are all estab-
lished, other essential elements are not established. Thus,
the number of employees in the appropriate bargaining
unit, at or around the time of Local 43's demand for
bargaining on July 10, 1972, is not established. The facts as
to the number of employees in the appropriate bargaining
unit reveal that around February 1, 1972, there were
apparently 21 or 22 employees in the appropriate unit and
that 20 or 21 of such employees were members of Local
143. The facts further reveal that all of such employees as
were members of Local 143 were transferred to Local 43.
The facts otherwise reveal that later the number of
employees in the appropriate bargaining unit increased
and that in October 1972 there were approximately 44
employees in the appropriate collective- bargaining unit.
There is no evidence to reveal that the number of
employees in the appropriate collective-bargaining unit
who were members of Local 43 increased from 20 or 21
until September or October 1972. Thus, the General
Counsel has not established, excluding his successorship
theory, that a majority of the employees in the appropriate
collective-bargaining unit had authorized Local 43 to be
their bargaining agent as of July 10, 1973. No presumption
of majority status, excluding the successorship theory, can
attach to Local 43 because of the collective-bargaining
agreement between Local 143 and the Respondent.
Excluding the successorship theory, such presumption of
majority status from the collective- bargaining unit would
attach to Local 143.
Other evidence submitted in this case would reveal that
Local 43 received authorization cards from a majority of
the appropriate bargaining unit employees in September
and October 1972. Were there to be a contention that the
theory of Respondent 's violation of Section 8(aX5) be
based upon this , such fails because there is no evidence of
independent unfair labor practices , and in accord with
N.L.R.B. v. Gisse! Packing Company- 395 U.S. 575 (1969),
the Respondent could insist upon the question of repre-
sentative status being determined by a Board election.
Although the foregoing is noted, it is clear that the
General Counsel litigated this case on the basic theory that
Local 43 became the successor of Local 143 in the sense of
a continuing bargaining entity . As indicated, the General
Counsel also litigated the question as to whether Respon-
dent agreed to the "merger" between Local 143 and Local
43.
Respondent's brief alludes to cases involving a "schism"
issue .9 Although the facts in this case appear somewhat
similar to those in "schism " cases, this case does not
involve a typical "schism" issue . 10 "Schism" cases involve
situations wherein there are disputes between two unions
as to who is the representative . In this case Local 143 and
Local 43 are not in dispute as to who should be the
bargaining representative . This case involves a question as
to whether Local 43 is in effect the same bargaining entity
as was Local 143.11
As in many cases there are consistencies and inconsisten-
cies in the facts. Thus , after the Web members of Local 143
had merged into and been transferred as members to Local
43, a grievance procedure was continued as though
processed by Local 143. Hurst signed a letter relating to
such grievances, on February 15, 1972, for Local 143.
Later, with respect to a grievance filed in October 1972,
Hurst's letters were first as "acting chairman," then as
from the Austin Printing Pressmen, and later as if from
Local 43. On the other hand it may be argued that the
letter of Respondent's gounsel on December 18, 1972,
shows recognition of the status of Local 43 as bargaining
representative, and it may be argued that it reveals that
there is no question of majority status, only of the technical
question of who was the representative.
I have considered all of the foregoing consistencies and
inconsistencies . In my opinion the evidence as to the
consistencies and inconsistencies appears to reveal a
matching of wits in the nature of legalistics pleadings.
Thus, the letter that Hurst signed on February 15, 1972,
about a grievance, and purportedly for Local 143, was on
stationery of Respondent's attorney. The letters in October
1972, similarly, appear to be positions and clarifications in
the nature of legalisms . Contrasted to the overall thrust of
the evidence, I am not persuaded that such evidence aids in
determining the issues in this case.
The Charging Party argues that the facts in Canton Sign
Co., 174 NLRB 906, are comparable to the facts in this
case . The Charging Party argues that the Board's decision
in Canton supports a finding of violative conduct in this
case . The facts of the two cases are somewhat similar in
general aspect but different in a vital respect . Thus, in
Canton the predecessor union completely merged with
another Union. In the instant case only a part of Local 143
has merged with Local 43.
9 Cf. Hershey Chocolate Corporation. 121 NLRB 901. claim could be made without being barred by the ousting contract.
10 Local 43's bargaining demand was made on July 10, 1972, within the Cf. Sears Roebuck and Company, 110 NLRB 226,
period of time preceding the expiration of a contract wherein a competing
NEWSPAPERS, INC. 21
Although Respondent attacks the validity of the "merg-
er" between Local 143 and Local 43, 1 am persuaded that
the "merger," to the extent that it is a "merger," is proper.
However, the "merger" was not a merger of the entire
unions, Thus, the question of whether such "merger"
occurred does not resolve the question of Local 43's
representative status.
The facts in this case are akin to a situation wherein the
employees in an appropriate collective-bargaining unit
decide to switch affiliation. The Respondent contends in
effect that when notified of the merger of Local 143's Web
pressmen with Local 43, it would have committed an unfair
labor practice if it had recognized and bargained with
Local 43. Although there is language in some Board and
court, cases that appear, to support this contention, I am
not persuaded that this is a correct statement of princi-
ple.12 Such language in such cases are with reference to
different factual situations, or may be said to be dictum. I
am persuaded that in February 1972, the Respondent
could have agreed to the substitution of Local 43 for Local
143 as bargaining representative and as to the administra-
tion of the contract. I am persuaded that no violation of
the Act occurs when all interested parties are in agreement
and when the employees involved have selected the second
union as their representative. The facts reveal that the
Respondent neither explicitly agreed to the change in
representative nor clearly opposed such change. The issue
in this case, however, is whether a violation occurred on or
about July 10, 1972.
There is, as indicated, a dispute as to the meaning of
"merger." The term "merger" in the Union's constitution
refers to merger of an entire union. It is clear that such term
is not applicable in this case to what occurred. Local 143
did, in effectuating the merger of the Web pressmen, follow
the principles of merger as set out in the constitution.
Whether or not there was adherence to the constitution is
not of controlling significance. What is important is
whether the employees (members) had proper opportunity
to express their desires.
In this case, in practical effort, the Web members were
severed from Local 143 and placed in Local 43 as a unit. In
my opinion, the facts reveal that this was substantially their
desires . Their desires appear to be to continue as a "Web
Division" unit and to bargain jointly with Local 43.13
Considering all of the facts, I am persuaded that the
General Counsel's theory that Local 43 became the
successor of Local 143 in the sense of a continuing
bargaining entity fails. Thus, the collective-bargaining
entity that had the collective-bargaining agreemer with
the Respondent in late 1971 and early 1972 was Local 143.
Such bargaining entity was not the Web Division of Local
143. When the "Web Division" members were transferred
from Local 143 to Local 43, in effect, the "Web Division"
was severed from Local 143 and placed with Local 43.
12 Cf. Sherwood Ford, Inc., 188 NLRB 131.
13 Cf. Sherwood Forth Inc, 188 NLRB 131, wherein it was held that a
second union could not bargain in effect as a representative for the
recognized union when it was in effect a substitution of one union for the
othhr But see Avon Convalescent Center, 204 NLRB 64.
14 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Local 143 continued to exist, and Local 43 which had
previously existed continued to exist with an added
division. Thus, what occurred is not a mere change wherein
Local 43 emerged as a continuation of the same bargaining
entity or even as an entity which included the old
bargaining entity.
In sum, I conclude and find that Local 43 is not a
successor to Local 143 in the sense of being in effect the
same bargaining entity. Accordingly, on a successorship
theory, the General Counsel has not established that
Respondent had an obligation to bargain with Local 43 on
July 10, 1972.
Although Respondent did not appear to oppose the
"merger" as such, Respondent did question the effect it
might have on the local nature of bargaining. Coupling this
with the February 15, 1972, letter of submission for
arbitration signed by Hurst for Local 143, the facts are
insufficient to establish that Respondent accepted the
substitution of Local 43 as bargaining agent instead of
Local 143.
Considering all such facts, and the foregoing, it will,
therefore, be recommended that the allegation of conduct
violative of Section 8(a)(5) and (1) be dismissed.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Newspapers, Inc., publisher of The Austin American
and The Austin Statesman, the Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Houston Newspaper Printing Pressmen's Union No.
43, and Austin Printing Pressmen and Assistants' Union
No. 143, each is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
3. All pressroom employees employed in the Respon-
dent's pressroom operated in Austin, Texas, but 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.
4. The facts do not establish that Respondent has
refused to bargain with Local 43 (Houston Newspaper
Printing Pressmen's Union No. 43) in violation of Section
8(a)(5) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 14
The complaint in this matter shall be dismissed in its
entirety.
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec.
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.