Wayside Press, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1953

103 N.L.R.B. 11 (N.L.R.B. 1953)

WAYSIDE PRESS , INCORPORATED 11
THE REMEDY
Since it has been found that Respondent has engaged in unfair labor practices,
in order to effectuate the policies of the Act it is recommended that Respondent
take the action hereinafter specified.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT engage in any acts in any manner interfering with the efforts
Of INTERNATIONAI, BROTHERHOOD OF PAPER MASERS, AFL, to negotiate for
or represent the employees in the bargaining unit described below.
WE WILL bargain collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit de-
scribed below with respect to wages, rates of pay, hours of employment, and
other conditions of employment and if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is :
All production and maintenance employees employed at the mill and
warehouses in Lyonsdale and Lyons Falls, New York, but excluding
all office employees, foremen, tour bosses, and all guards, professional
employees, and supervisory employees as defined in the Act.
MOYER & PRATT, INC.,
Employer.
Dated ------------------ By ---------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
WAYSIDE PRESS, INCORPORATED and PRESSMEN'S UNION, No. 78 and
WAYSIDE PRESS EMPLOYEES' INDEPENDENT UNION, INC. Case No.
21-CA-1281. February 26,1953
Decision and Order
On November 14,1952, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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 copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, and a supporting brief.'
1 We hereby deny the Respondent 's request for oral argument as the record and brief
adequately present the positions of the parties.
103 NLRB No. 14.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.3
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Wayside Press,
Incorporated, Los Angeles, California, its officers, agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Wayside
Press Employees' Independent Union, Inc., or with the formation or
administration of any other labor organization of its employees or
from contributing any support thereto.
(b) Recognizing Wayside Press Employees' Independent Union,
Inc., or any successor thereto as the representative of its employees
for the purpose of dealing with the Respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment.
(c) In any other manner interfering with, restraining , or coercing
its employees in the`'exercise' of the right to self-organization, to form
labor organizations, to join or assist any labor , organization, or to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of
the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
2Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Houston, Murdock,
and Styles].
a We agree with the Trial Examiner's findings that the Respondent's foremen are super-
visors as defined in the Act . In addition to the facts set forth in the Intermediate Report
in support of this finding, we note that under the Respondent 's theory urging only 1
supervisor in the plant-the general manager and plant superintendent-the ratio of super-
visors to rank-and-file employees would be 1 to 50.
In connection with the statement in the Intermediate Report that Foreman Stevens
addressed the employees concerning the desirability of reactivating the Independent, we
find that this speech occurred at the meeting of September 10, 1951 , after the ballots had
been cast.
WAYSIDE PRESS, INCORPORATED 13
(a) Withdraw all recognition from, and completely disestablish
Wayside Press Employees' Independent Union, Inc., or any successor
thereof as the representative of any of its employees for the purpose
of dealing with the Respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment.
(b) Post at its plant in Los Angeles, California, copies of the notice
attached hereto marked "Appendix A." 4 Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,
after having been duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof and main-
tained by it for sixty (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 the Twenty-first Region (Los
Angeles, California), in writing, within ten (10) days from the date
of this Order what steps the Respondent has taken to comply herewith.
• In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE HEREBY DISESTABLISH WAYSIDE PRESS EMPLOYEES' INDE-
PENDENT UNION, INC., as the representative of any of our em-
ployees for the purpose of dealing with us concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, and will not recognize it or any
successor thereto for any of the above purposes.
WE WILL NOT dominate or interfere with the formation or ad-
ministration of any labor organization or contribute financial or
other support to it.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist any labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8 (a) (3) of the Act, as guaranteed by Section 7 thereof.
All our employees are free to become or remain members of any
labor organization. We will not discriminate in regard to hire or
tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any
labor organization.
WAYSIDE PRESS, INCORPORATED,
Employer.
Dated ---------------- By -----------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed on November 28, 1951, by Pressmen 's Union, No. 78, herein
called the Union , the General Counsel for the National Labor Relations Board
(herein called General Counsel and Board , respectively ), by the Regional Director
for the Twenty-first Region, issued a complaint dated May 22, 1952, against
Wayside Press , Incorporated , herein called the Respondent , alleging that the
Respondent had engaged in, and was engaging in, unfair labor practices affecting
commerce , within the meaning of Section 8 ( a) (1) and ( 2) and Section 2 (6)
and (7 ) of the National Labor Relations Act, as amended , 61 Stat. 136, herein
called the Act. Copies of the complaint , charge, and notice of hearing were
served upon the respective parties hereto.
With respect to the unfair labor practices , the complaint , dated May 22, 1952,
alleged in substance that from about May 28, 1951 , to the date of the complaint
the Respondent had, by various acts and statements of its plant superintendent
and of its composing-room foreman , interfered with , restrained , and coerced its
employees in the exercise of their rights guaranteed in Section 7 of the Act,
and that, during September 1951, it dominated or interfered with the reactivation
of the Wayside Press Employees ' Independent Union , Inc., a long dormant labor
organization.
The Respondent 's answer, filed June 2, 1952 , denied the commission of the
unfair labor practices and pleaded that the complaint was barred by laches.
Copies of the complaint , charge, and notice of bearing were served on all
parties, and pursuant to notice , a hearing was held in Los Angeles , California,
on October 6, 1952 , before me, the duly designated Trial Examiner.
At the close of the General Counsel 's case, counsel for the General Counsel,
hereinafter referred to merely as General Counsel , moved to amend the com-
plaint by adding to the 8 ( a) (1) allegation of the complaint the phrase , "includ-
ing its [ Respondent 's] use of application forms requiring the disclosure of union
affiliation of applicant ." The motion was granted.
The General Counsel and the Respondent filed briefs with the Trial Examiner
and the Respondent also filed a request for proposed findings of fact and con-
WAYSIDE PRESS, INCORPORATED 15
elusions of law. Concurrently therewith, the Respondent filed a sworn answer
to the above-mentioned amendment to the complaint. In this answer, the
Respondent alleges that until the amendment was made, it did not know that
there was objection to its application form, that, as soon as such objection became
known, the Respondent discontinued the use of such form and is now using a
form which does not contain any reference to union affiliations of the applicant
and has no intention of using the form complained of at any time in the future,
that the Respondent had hired some employees whose applications disclosed that
they were members of a union, that it had not been the intention of the Respond-
ent to discriminate against union members, and that it had not in fact done so.
The first proposed finding of fact submitted by the Respondent is granted ; the
rest are denied because they are not wholly consistent with the findings herein.
All the proposed conclusions of law requested are denied.
From my observation of the witnesses and upon the entire record in the case, I
make the following findings of fact :
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation engaged in commercial and peri-
odical printing and lithographing in Los Angeles County, California. For the
period from October 1, 1951, to September 30, 1952,' the Respondent's total
services and sales amounted to $69,667.50. All of these were services rendered
and sales made within the State of California. During this period it printed
magazines for 14 publishers for which it received the sum of $224,535.61. Of
this amount, $34,679.44 would represent the proportionate cost of magazines
which 4 of the said publishers sold and distributed from California to points
outside the State. Some of the publishers served by the Respondent are engaged
primarily in types of business other than publications, the magazines published
by them being distributed among employees locally as house organs. At least 4,
however-the same 4 mentioned above making out-of-State sales-derive their
revenue from the sale of magazines and the advertising matter printed therein 2
Each of these 4 publishers receives, in California, revenues from outside the
State in excess of $25,000. In addition to the work done by the Respondent for
the foregoing, the Respondent received from Perrett Company, an advertising
agency in Los Angeles, $12,672.18 for matter printed by the Respondent for that
agency on behalf of the Sunkist Company. Of this sum, $8,592.03 worth was
sold to points outside the State of California. The Sunkist Company receives in
excess of $25,000 in California from points beyond the State in its business.
Respondent's sales to firms engaged in interstate commerce exceeds $50,000
annually.
From the foregoing it is apparent that not only does the Respondent print
magazines , more than $25,000 worth of which are destined for out-of-State ship-
ment,' but it also sells printed matter or performs services of a value in excess
of $50,000 to interstate enterprises, thus bringing the case within the doctrine
1 The figures used for September 1952 in determining the annual business were estimated
on an average figure of the prior 1952 months.
2 The four publishers and the magazines published by them are : Arts & Architecture,
Inc., testified to be the publisher of the magazine Arts and Architecture ( but on the mast-
head of a magazine of that name I note that the publisher is named as John D. Entenza)
Architects Associated , publishing Architectural Handbook and Architectural Products ; the
League of California Cities, publishing Western City ; and Miller Freeman Publications.
The fact that title passes before actual shipment is immaterial . National (fad Com-
pany, 99 NLRB 273 and cases there cited ; L. E. Cleghorn and B . H. Swaney, Inc. (United
Mine Workers of America, District $1, et at.), 95 NLRB, 54&
`16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Hollow Tree Lumber Co., 91 NLRB 635. Upon this evidence, I find that the
Respondent is engaged in commerce within the meaning of the Act, that the
Board's criteria for asserting jurisdiction are met, and that it will effect the
policies of the Act to assert jurisdiction 4
II. THE ORGANIZATIONS INVOLVED
Pressmen's Union No. 78, and Wayside Press Employees' Independent Union,
Inc., are labor organizations admitting to membership employees of the Re-
spondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On or about August 17, 1951, Clifford Lambert applied for employment with the
Respondent. The Respondent's general manager and plant superintendent,
Harry Wood, had Lambert fill in an application form which, among other
questions, asked, "Are you a member of Union? . . . If so, which one ....."
After Lambert had filled in the application form, answering this question in
the negative, Wood interviewed him for a few minutes. Lambert testified that in
the interview, Wood asked him if he held a card, meaning a membership card in
the Union, and that he answered, "No." Lambert then testified, "I don't remem-
ber the exact conversation, but it was something about protecting `our plant' or
`ourselves from outsiders."' Wood testified that he had no recollection of asking
Lambert whether he held a card, but believed he did not, and he emphatically
denied that he said the purpose was to protect against outsiders. I find that
Wood had Lambert answer the question in the application form with respect
to his union membership, but because Lambert's memory of this interview ap-
peared to be impaired by lapse of time and because Wood's denial impressed me
as honest, I credit his denial of the statement regarding "protection from
outsiders." I also find that the question concerning Lambert's union affiliation
was asked only in the application blank and that Wood did not ask it orally.
Nevertheless such questioning is violative of Section 8 (a) (1) of the Act. (I7.
H. Sargent and Co., 99 NLRB 1318.)
B. Domination and interference with the formation of the Independent
The Independent was incorporated on February 3, 1938. Between that time
and 1942 it held 10 meetings and then became inactive. In about 1949 employee
Arthur Irons started an employees' association for the sole purpose of paying
sick employees $25 for the first week of illness before insurance payments
started. Foremen as well as the plant superintendent belonged to this associa-
tion.
On about September 7, 1951, a day after the Union had passed out circulars
in front of the plant, Irons decided to reactivate the Independent. Before doing
so, he asked the opinion of his foreman, Herbert Stevens. Stevens, according to
Irons, said "he thought it would be a little bit in our favor if we did have it that
way." Irons asked Fred Bailey, the linotype foreman, to set the type for ballots
and when that was done, Irons ran the ballots off on the plant press. Bailey
set the type for the ballots without the customary work order used for business
jobs, and no doubt he understood the significance of what he was doing. Irons
* I find It unnecessary to rely on the additional evidence that the Respondent sold goods
to, or performed services for, several establishments operating
as an integral part of
multistate enterprises, of a value in excess of $50,000, or on evidence of purchases made
within the State of items originating outside the State.
WAYSIDE PRESS, INCORPORATED 17
gave ballots to each delegate of tha Employees ' Association , told them to pass
them out to employees and later to collect them . Foreman Stevens addressed the
employees , telling them of the desirability of reactivating the Independent in
order to keep outsiders out of the plant.
On September 10, 1951 , with the marked ballots in a box , a meeting of the
employees was held at the end of the lunch period . The lunch period is from
12: 25 to 12 : 55 p. m . The meeting, according to minutes thereof, started at 1
o'clock and lasted about 30 minutes . Irons was temporary chairman . The bal-
lots were counted and the results were announced as 39 for , and 13 against,
reactivating the Independent.' Foreman Stevens nominated Irons for presi-
dent, and he was elected . Stevens then nominated Margaret Crowder for vice
president , and she was elected . Members of the Employees ' Association decided
that officers , with the exception of the president and vice president , should "be
carried over to the new association for the remainder of the year." At this
time , Superintendent Wood was a member of the Employees ' Association, but
he was not present at the meeting of September 10 and he testified that he
ceased to be a member after the Association reactivated the Independent. At
the time of the meeting he was out to lunch , but Irons told him about it the same
day.' Wood testified that he did not know that the meeting was held on company
time, but he imagined that it was . He testified that , although the regular lunch
time was half an hour , the Respondent has been lax about enforcing it, that
sometimes employees punched back in from lunch at the same time that they
punched out, that in paying employees , half an hour is deducted from their
overall time for the lunch period regardless of how long the employee is gone,
and that employees who take more than the half hour at noon are not docked.
I infer, however , that this applies to sporadic conduct of individual employees.
It is inconceivable that the Respondent would tolerate a half hour 's absence
for everyone in the plant unless it approved the purpose of the meeting. Since
no deduction in pay was made I conclude that Wood , who knew of the meeting,
approved and ratified what was done. -
A question is raised as to whether or not the Respondent is bound also by
the conduct of its foremen . The General Counsel contends , and the Respondent
denies , that the Respondent 's foremen are supervisors within the meaning of
Section 2 (11) of the Act. The Respondent 's foremen are all working foremen
who spend most of their time ( 75 to 80 percent ) in production along with the
other men in their departments. They lay out the work to be performed and
Three "Yes" ballots bore signatures , 2 by foremen, 1 had a comment written on it,
and 1 was apparently checked in the "Yes" box and then the check was blacked out. The
count included all these.
The ballot read as follows :
It has been suggested by several of Wayside employees that we reactivate the Way-
side Press Employees ' Independent Union , Inc. This union was incorporated on the 3d
day of February 1938, and has been in existence since that time. To better protect
'ourselves in the event of outside interference , it has been suggested that the Em-
ployees' Association take over the function of the Wayside Press Employees' Inde-
pendent Union, Inc as of today.
The Articles of Incorporation and By-Laws are on file and can be seen and read
by anyone interested.
I am in favor of reactivating the Wayside Press Employees ' Independent
Union.
YES q NO q
e The record does not disclose the time of day when Irons told Wood, so it is not certain
whether Irons told Wood before or after the meeting to9k place, ,
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can assign particular jobs to employees in the department.' They are respon-
sible to the superintendent to see that the work is of the quality required.
Foreman Stevens testified that it was his duty to see that the publications
moved along "through the composing room ready for the press room." With
respect to his responsibility, he testified, "Well, I am the last man, you might
say, to handle it before it goes to the press room. The proofs finally do come
to me because I try to get them together and he [Wood] would hold me re-
sponsible, I imagine, in that respect, that I should not turn them over to him
until they are ready for the press room." In performing his duties and respon-
sibilities, Stevens testified, he does not need any discipline, he would just work
with an employee who was behind and "they could see by that that we were in
a hurry."
The foremen do not, as a general rule, either hire or fire or hake recom-
mendations therefor, although they do at times report to the superintendent facts
from which the superintendent would determine whether or not to make a dis-
charge. The superintendent makes the decision as to whether to work overtime.
As to who decides which employees should work overtime or which employees
should be assigned to a particular shift, the evidence is somewhat conflicting.
Superintendent Wood testified that he was the one who determined not only that
there should be overtime work but also, after consultation with the foreman,
who should be given the overtime work. When Stevens was asked, however, if
Wood ever asked him about which employees should be given the overtime work,
Stevens answered, "No, we try very, very much to divide it evenly. We try to
be fair with every one of the employees." This answer is ambiguous, but in
view of the contradiction of Wood's testimony regarding consultation and other
evidence indicating the normal routines, I infer that the delegation of the em-
ployees to work overtime would be left to the foreman's decision. During the
period of time that the Respondent operated a third shift, Foreman Bailey, the
linotype foreman, occasionally hired employees on his own.
All the evidence-of supervisory authority of the Respondent's foremen was
elicited from witnesses favorable to the Respondent, and their guarded answers
apparently sought to minimize the authority of the foremen. But from all the
available evidence in the case I conclude and find that the foremen, if they do
not generally have authority to hire, fire, discipline, or make effective recom-
mendations therefor, do have authority, in the interest of the Respondent, re-
sponsibly to direct employees under them.' It is their responsibility to supervise
the day-to-day flow of work in their departments to the extent entrusted to them.
"Responsibility includes judgment, skill, ability, capacity, and integrity, and is
implied by power."' Hence, the authority of the foremen here is more than
merely routine or clerical in nature, and I conclude and find that they are super-
visors within the meaning of Section 2 (11) of the Act. In so deciding, I have
not overlooked the contention of the Respondent that the Union admits fore-
men to membership. The fact that a foreman is admitted to union membership
is not determinative of supervisory authority. It might be some evidence that
the Union does not look upon working foremen as supervisors, although an ex-
amination of the evidence of agreements between the Union and other employers
proffered in evidence by the Respondent by no means establishes even this. But
7 Foreman Stevens testified that he laid out the work on his bench and that the em-
ployees came and helped themselves to work, but he acknowledged that "if you come
right down to it I could ask him [an employee under his supervision] to do certain
things" and admitted that when he laid out the work on his bench he sometimes deter
mined which employees would do the work.
8 See Alabama Marble Company , 83 NLRB 1047 ; Rodney Milling Company , 88 NLRB
1717; Ohio Power Co. v. N. L. R. B., 176 F. 2d 385 (C. A. 6),, cert. den. 339, U. S. 899.
9 Ohio Power Co. v. N . L. R. B., 176 F. 2d 385 ( C. A. 6).
WAYSIDE PRESS, INCORPORATED 19
in any event, the status of employees bearing the title of foremen must be decided
in each case on its own facts, and it is the Board rather than the Union that
must evaluate those facts and make the decision as to supervisory status.
Having found that the Respondent's foremen are supervisors within the mean-
ing of the Act, I find that by the activities of Stevens, Bailey, and Schubert in the
preparation of the ballots and the distribution thereof, and by their participation
in the meeting of September 10 and the reactivation of the Independent, the
Respondent has dominated the Independent and interfered with its formation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent dominated and interfered with the
formation of the Independent. It will therefore be recommended that the
Respondent completely disestablish it as the representative of its employees for
the purpose of dealing with the Respondent concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions of em-
ployment.
Because the Respondent, by the unfair labor practices herein found, has
demonstrated a disposition to ignore the fundamental purposes of the Act, I
believe that, its supplemental answer notwithstanding, a danger of the com-
mission in the future of other unfair labor practices by the Respondent exists.
I shall therefore recommend that it cease and desist from in any manner in-
terfering with, restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, except to the extent authorized by
Section 8 (a) (3) of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Pressmen's Union, No 78, and Wayside Press Employees' Independent
Union, Inc., are labor organizations within the meaning of Section 2 (5) of
the Act.
2. By dominating, assisting, and interfering with the formation of Wayside
Press Employees ' Independent Union, Inc., the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (2)
of the Act.
3. By interfering with , restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]