Western Printing Co.

National Labor Relations Board - Board Decisions

Aug 13, 1941

34 N.L.R.B. 194 (N.L.R.B. 1941)

In the Matter of SAM M. JACKSON, CECIL J. LEwIs, AND HARRY C.
HOLDSWORTH , DOING BUSINESS AS WESTERN PRINTING COMPANY, A
CO-PARTNERSHIP and INTERNATIONAL BROTHERHOOD OF BOOKBINDERS,
LOCAL No. 63, A. F. L., AND INTERNATIONAL PRINTING PRESSMEN AND
ASSISTANTS' UNION OF NORTH AMERICA, LOCAL No. 78, A. F. L.
Case No. C-1836.Decided August 13, 1941
Jurisdiction : commercial and job-printing industry.
Unfair Labor Practices
Interference , Restraint , and Coercion: charges of , dismissed.
Discrimination: employees found not to have been locked out but to have gone
out on strike , that strike was neither caused nor prolonged by any unfair
labor practices , and that employer did not refuse to reinstate any of the striking
employees because of their union membership and activity.
Collective Bargaining : charges of , dismissed.
Posting of notice raising wages and reducing hours of employees during
negotiations with unions held not an unfair labor practice where, among
other circumstances , immediately after the posting the employer continued
to discuss and consider the proposals of the unions
Practice and Procedure : complaint dismissed.
Mr. David Sokol, for the Board.
Mr. Harold Richardson, of Whittier, Calif., for the respondents.
Mr. Charles S. Hall and Mr. Arthur Garrett, of Los Angeles, Calif.,
and Mr. Charles V. Ernest, of Washington, D. C., for the Pressmen.
-Mr. Albert E. Simonds and Mr. Arthur Garrett, of Los Angeles,
Calif., and Mr. James A. Glenn, of Washington, D. C., for the
Bookbinders.
Mr. Robert F. Koretz, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed jointly by Inter-
national Brotherhood of Bookbinders, Local No. 63, A. F. L., herein
called the Bookbinders, and International Printing Pressmen and
Assistants' Union of North America, Local No. 78, A. F. L., herein
called the Pressmen,' the National Labor Relations Board, herein
I Throughout this Decision the Bookbinders and the Pressmen are referred to jointly as
the Unions.
34 N. L. R. B., No. 30.
194
SAM M. JACKSON ET AL. 195
called the Board, by the Regional Director for the Twenty-first Region
(Los Angeles, California) issued its complaint, dated September 13,
1940, against Sam M. Jackson, Cecil J. Lewis, and Harry C. Holds-
worth, doing business as Western Printing Company, a co-partner-
ship, herein called the respondents, alleging that the respondents
had engaged in and were engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (3), and (5) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, accompanied by notice
of hearing, were duly served upon the respondents, the Bookbinders,
and the Pressmen.
Concerning the unfair labor practices, the complaint alleged in
substance that the respondents: (1) prior to and since November 1,
1939, interfered with the self-organization and the freedom of choice
of representatives of their employees by making known the respond-
ents' hostility to the Unions and their opposition to membership in
or assistance thereof, by "making statements calculated and intended
to interfere with the freedom of choice of representatives for collec-
tive bargaining," by questioning their employees regarding their
union affiliations, by advising their employees that the respondents
would close their Whittier plant rather than recognize the Unions,
by statements that their employees would derive no benefit from join-
ing the Unions, by promises of rewards to employees refraining from
joining or assisting the Unions, and by threatening employees with
loss of employment for joining the Unions; (2) about November 14,
1939, and at all times thereafter, refused to bargain in good faith
with the Unions, the duly designated representatives of the respond-
ents' employees in appropriate units, refused to meet, deal, and ne-
gotiate with the representatives of the Unions, refused to agree to
embody in a contract any understanding reached, and refused to
recognize the Unions as the exclusive bargaining agents of the re-
spondents' employees within the appropriate units; (3) about No-
vember 27, 1939, refused to reinstate and still refuse to reinstate and
thereby locked out 16 named employees 2 who that day "did refrain
from working" because of the respondents' unfair labor practices, after
said employees "offered to return to work pending an adjustment of
the unfair labor practices" because the said employees joined and
assisted the Unions; (4) about January 10, 1940, again refused to
reinstate 15 named employees 3 who on or about that date made ap-
S These 16 employees are : William G. Harris, Jack K. Smith, Richard Hansen , Martin
Ltice , Glen Armstrong, Claude Thomas Weadon, Vincent Youngquist, Ethel Kelly , Millie
Furry, Helen Weadon Easterling, Clara Salm, Mary Jones Pfirrman, Grace La Verne Baker,
Neva Palmer, James C. Jennings, and James R Jennings.
S The 15 employees who allegedly applied in writing for reinstatement on or about
January 10 constitute the same employees who allegedly offered to return to work on
November 27 as set forth in footnote 2, above, except that James C. Jennings , the father
of James R Jennings , did not apply for reinstatement on January 10.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plications in writing to the respondents for reinstatement because the
said employees joined and assisted the Unions; and (5) by the fore-
going and other acts, interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
On -September 23, 1940, the respondents filed their answer to the
complaint in which they denied, in substance, that they were engaged
in interstate commerce or were subject to the jurisdiction of the
Board, and that they had engaged in any unfair labor practices.
The respondents' answer alleged further, in substance, that the re-
spondents met and bargained in good faith on numerous occasions
with representatives of the Unions, that the Unions terminated bar-
gaining relationships by calling their employees out on strike because
the respondents would not accept the closed-shop provisions in the
contracts submitted by the Unions, and that the respondents did not
lock out or refuse to reinstate the striking employees because of their
membership in and assistance to the Unions but on the contrary re-
peatedly endeavored to get the striking employees to return to their
jobs.
Pursuant to notice, a hearing was held in Los Angeles, California,
from October 3 to October 18, 1940, inclusive, before Earl S. Bell-
man, the Trial Examiner duly designated by the Chief Trial Ex-
aminer. The Board and the respondents were represented by coun-
sel, and the Unions by union officials. All parties participated in the
hearing and were afforded full opportunity to be heard, to call, ex-
amine and cross-examine witnesses, and to introduce evidence bearing
on the issues. At the opening of the hearing, counsel for the re-
spondents entered a limited and special appearance for the purpose
of contesting the Board's jurisdiction and, in effect, entered a general
objection to the proceedings on the ground that the respondents were
not engaged in commerce, within the meaning of the Act. After the
taking of testimony concerning the business activities of the respond-
ents, counsel for the respondents moved to dismiss the complaint for
lack of jurisdiction. The motion was denied by the Trial Examiner.
Thereafter, the respondents, by their counsel, participated fully in
the hearing. At the close of the Board's case, the Trial Examiner
granted, without objection, a motion by counsel for the Board to
dismiss the allegations of the complaint as to James R. Jennings. The
Trial Examiner made various rulings on motions and on objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
A brief by the respondents ' was received and considered by the
Trial Examiner. On March 5, 1941, the Trial Examiner issued his
Intermediate Report, copies of which were duly served upon all
SAM M. JACKSON ET AL. 197
parties, in which he recommended that the complaint be dismissed in
its entirety. _
Thereafter, the Unions filed exceptions to the Intermediate Report,
submitted a brief in support of their exceptions, and requested oral
argument before the Board. Pursuant to notice, a hearing for the
purpose of presenting oral argument was held before the Board at
Washington, D. C., on May 8, 1941. The respondents, the Bookbind-
ers, and the Pressmen were represented by counsel or by a represent-
ative and participated in the argument.
The Board has considered the exceptions and brief and, in so far
as the exceptions are inconsistent with the findings of fact, conclu-
sions of law, and order, below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The respondents, Sam M. Jackson, Cecil J. Lewis, and Harry C.
Holdsworth are and have been since September 1, 1936, a copartnership
doing business under the firm name and style of Western Printing
Company. The respondents have their office and plant at Whittier,
California, at which place they engage in a commercial and job-print-
ing business. The principal raw materials used by the respondents are
paper and ink. The value of the materials purchased by the re-
spondents was $74,644.23 for the period from January 1, 1939, to Sep-
tember 1, 1940. These materials were purchased from suppliers in
Los Angeles County, California, but at least 50 per cent of these ma-
terials -were obtained by the suppliers from outside the State of
California.
The value of the finished products, consisting of magazines, books,
catalogs, pamphlets, and miscellaneous printed matter, sold by the
respondents between January 1, 1939, and September 1, 1940, was
$318,505.13. During that period the value of goods sold directly to
persons in States other than the State of California was $20,530.16.4
Although the direct sales to persons outside the State of California,
consisting of printed legal briefs delivered by mail, constitute only
about 6 per cent of the respondents' total sales, the record shows that
a substantial portion of the books, magazines, catalogs, and advertis-
ing matter sold by the respondents to customers within the State of
California is thereafter shipped outside the State of California by
A The record also shows that for the 12-month period from September 1, 1939, to
September 1, 1940, the respondents ' total sales amounted to $192,48900, of s hich sales
those made directly to customers outside the State of California totaled $12 ,724.19.
451269-42-vol. 34-14
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these customers,5 and is in fact ordered by the respondents' customers
with the intent of such shipment either as articles of commerce or to
aid and facilitate commerce."
H. THE ORGANIZATIONS INVOLVED
International Brotherhood of Bookbinders, Local No. 63, is a labor
organization affiliated with the American Federation of Labor. It
maintains its office and headquarters at Los Angeles, California, and
admits to membership employees in the bindery of the respondents'
Whittier, California, plant.
International Printing Pressmen and Assistants' Union of North
America, Local No. 78, is a labor organization affiliated with' the
American Federation of Labor. It maintains its office and head-
quarters at Los Angeles, California, and admits to membership em-
ployees in the pressroom of the respondents' plant at Whittier,
California.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
1. The events prior to November 27, 1939
Joint organization meetings for both the Bookbinders and the
Pressmen were held at the home of James C. Jennings, foreman of
the respondents' pressroom, commencing on about November 11, 1939.
By November 14, a majority of the employees in the pressroom and
bindery, respectively, had designated the Pressmen and the Book-
binders, respectively, as their representatives for the purposes of
collective bargaining.
On or about November 13, two representatives of the Unions, Albert
E. Simonds for the Bookbinders, and Charles S. Hall for the Press-
men, called at the respondents' office, where they saw Jackson, one
of the respondents who is the superintendent of the plant. The
union representatives stated to Jackson that they represented a ma-
jority of the respondents' employees in the pressroom and the bind-
ery and wished to negotiate on their behalf. Jackson did not question
5 Cf. Matter of Aronsson Printing Company and Detroit Printing Pressmen's and
Assistants' Union No. 2, et al, 13 N. L . R. B. 799.
E For instance , one firm sends about 75 per cent of its catalogs outside the State of
California . Three other customers each send approximately 20 per cent of their catalogs
and advertising matter outside the State . One company publishing a magazine printed by
the respondents each month distributes about two -thirds of each issue outside the State,
while a second company publishing a magazine distributes approximately 50 per cent
of its issues outside the State of California. About half the copies of a book published
for an individual were distributed outside the State of California and a textbook company
secures approximately 50 per cent of its out-of-State merchandise from the respondents.
SAM M . JACKSON ET AL. 199
their authority to represent the employees,' but told them that it
would be necessary to consult with Holdsworth, another of the re-
spondents who is the business manager. An appointment was made
for the next morning. Before leaving, the union representatives
gave Jackson copies of two proposed agreements, one covering the
employees in the pressroom and the other the employees in the
bindery.
The proposed agreements, which were drawn up on printed forms,
provided for a closed shop in both the pressroom and the bindery.
Both agreements also provided, respectively, that all presswork and
all bindery work sent by the respondents to an outside shop must.
be sent only to a pressroom or a bindery " recognized by the Allied
Printing Trades Council, as a union establishment." 8 Both agree-
ments further provided that the respondents would abide by the
respective scales of wages and shop rules incorporated in separate
booklets attached to the respective agreements. The agreements, as
thus supplemented, set out in considerable detail rules and scales
pertaining to such matters as wage rates, hours of employment, over-
time and double time, conditions of employment, and apprenticeship.9
On or about November 14, 16, 20, and 24 meetings were held at
the respondents' plant at which Simonds; H,(lll, and Edward Balsz,
an international representative of the Pressmen, represented the
Unions. At these four meetings Holdsworth and Jackson repre-
sented the respondents. Only Jackson testified for the respondents
concerning these meetings, since Holdsworth was under the care of
a physician at the time of the hearing. Jackson testified in sub-
stance that in the course of those meetings there was a full dis-
cussion of the Union's proposals; and more specifically, that the
respondents discussed and expressed their disagreement with the
provisions requiring that press and bindery work sent to outside
shops be sent to a "union establishment," that the respondents con-
tended they were unable to pay the Los Angeles wage scale provided
4 At no time during any of the subsequent negotiations did the respondents raise any
question as to the majority designations claimed by the Unions , the appropriateness of the
units claimed by the respective Unions, or as to whether the Unions sought to represent
the employees in the units jointly.
$A similar provision in a closed -shop contract with the International Typographical
Union, herein called Typographical , under which the respondents had operated for several
years , had been waived year after year by Typographical.
U Several of the employees in the respondents ' pressroom and bindery had had no ex-
perience in any plant other than that of the respondents , and were capable of performing
only a limited number of operations. The Los Angeles wage scale requested by the Unions
was higher than " that which the respondents had been paying Thus , presumably, the
situation which actually confronted the respondents and the Unions at the outset of their
negotiations was one which required either acceptance by the respondents in toto of the
detailed demands of the Unions , or patient and careful adaptation of those demands to
the conditions and the experience of the employees prevailing in the bindery and the press-
room of the respondents.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for by the proposed agreements but came to an understanding with
the Unions on wage increases for certain classes of employees, and
that the respondents stated their disapproval of some of the overtime
and double-time provisions.10 In effect, the union representatives
testified with respect to these meetings that Holdsworth stated that
he did not desire to deal with the Unions and that the re-
spondents refused to discuss the proposals of the Unions. How-
ever, the union representatives admitted that the closed-shop pro-
visions of the contract were discussed and that the respondents
objected thereto. Balsz conceded that wage rates were also discussed,
and that the Unions, in response to the respondent's objections to
the "Los Angeles scale" embodied in the proposed agreements, stated
that they might reduce their demands. Further, Balsz, in explaining
the addition of two paragraphs to a modification of the proposed
contract prepared by the Pressmen on November 27, as described
below, admitted that the substance of these two paragraphs had been
discussed with the respondents at an earlier meeting. Finally, at
the meeting of November 24, the Unions submitted in writing de-
tailed modifications of their original proposals, and at the conclu-
sion of this meeting they arranged a further conference, as they
had at each of the previous meetings. In his, Intermediate Report
the Trial Examiner, upon the admissions of the union representa-
tives, upon the conduct of said representatives in arranging for
meeting after meeting and submitting modified proposals on Novem-
ber 24, and upon Jackson's demeanor as a witness, credited Jackson's
testimony. From the foregoing, and upon the entire record, we are
satisfied and find, as did the Trial Examiner, that the proposals of
the Unions were discussed and considered in good faith by the re-
spondents at the meetings between November 14 and 24.11
During the course of these negotiations, on November 20, the
respondents posted, without prior submission or notification to the
Unions, a notice fixing the wages and hours of work of the bindery
10 For instance , the Unions insisted on double time for Sundays and ' holidays. Under
their respective contracts with the Typographical , of which union both Jackson and
Holdsworth had been members for years, the respondents had never paid more than time
and a half for such overtime . Throughout all of the negotiations discussed 'herein, the
respondents refused to agree to pay more for overtime to the Bookbinders and the Press-
men for Sundays and holidays than they were accustomed to paying the employees in the
composing room. Furthermore , the Unions insisted that all work on Saturday afternoon
be paid for as overtime, while the respondents , who were planning to operate on a 40-hour
week, wanted to stagger the five 8-hour days worked by each employee in such a way as
to be able to work on Saturday afternoon without paying overtime.
11 Due consideration has been given both to the bearing of subsequent events discussed
below on the question of the good faith of the respondents , and to the bearing of the
alleged anti-union attitudes and remarks attributed to the respondents, discussed in the
last section of these findings.
SAM M. JACKSON ET AL. 201
and pressroom employees, here concerned?- Under the terms of
this notice the working hours of these and other _ employees were
reduced from 42 to 40 hours per week, and the wages of nearly all of
the pressroom and bindery employees were raised 13
At the beginning of the meeting on November 20, within 2 hours of
the posting of the notice, the union representatives questioned the
respondents' procedure in posting the notice and were given a copy
thereof at their request. As found above, at this meeting and at the
subsequent meeting of November 24, the parties continued their dis-
cussion of the Unions' proposed agreements and supplements thereto,
and, as set forth below, on November 28 the respondents offered to
enter into a signed contract with the Unions embodying the terms of
the notice. At the hearing Jackson explained that the notice was,
posted following a discussion with Holdsworth, in which it was decided
to reduce the working hours Qf all plant employees from 42 to 40
because, among other reasons, the 42-hour working week which had
recently been put into effect in compliance with the Fair Labor Stand-
ards Act was not adapted to the respondent's plan of operation,14 and
that the Unions were not notified previous to the posting because the
terms of the notice regarding hours of work were not limited in appli-
12 The full text of the notice is as follows :
NOTICE
Beginning Monday , November 20, 1939 all employees of the Western Printing
Company will work 40 hours per week.
In the pressroom and bindery the following wages will be paid :
Pressmen --------------------------------------------- $1.00.
Apprentice pressmen------------------------------------ . 85
Cylinder feeders---------------------------------------- . 75
Platen feeders ( 1st 6 mo.) ------------------------------ . 30
Platen feeders ( 2nd 6 mo. )------------------------------ . 40
Stock cutter ------------------------------------------- . 75
Folder operator ---------------------------------------- . 75
Apprentice bindery women------------------------------ . 373A
Experienced bindery women ( 3 yrs. or more) -------------- . 50
per hour.
per hour.
per hour.
per hour.
per hour.
per hour.
per hour.
per hour.
per hour.
All time worked over 8 hours per day or more than 40 hours per week will be paid
for at price and one half.
This rate of pay need not affect the rate of anyone receiving more per hour than
the above amount.
WESTERN PRINTING COMPANY,
By JACKSON.
=It appears that the Unions and the respondents had previously reached an agreement
upon the wages to be paid to certain of the bindery and pressroom employees.
'A More specifically in this connection , the record shows the following : The respondents
operate their plant 48 hours per week, divided into six 8-hour working days. Shortly
before the respondents entered into negotiations with the Unions, they were required,
under the terms of the Fair Labor Standards Act, to reduce the weekly working hours of all
employees from 44 to 42, with a maximum of 8 working hours per day. In order to utilize
the 2 hours remaining after employees worked 5 8-hour days , the respondents had their
employees work a split shift of but 2 hours on one day each week. This proved unsatis-
factory, and therefore it was decided to eliminate the 2-hour split shift and put all plant
employees on a 40 -hour work week.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation to the bindery and pressroom employees, but applied to all
plant employees.
From the foregoing, and upon the entire record, we are satisfied, as
was the Trial Examiner, that the respondents' action in posting the
notice of November 20 was not intended to, and did not have the effect
of, discouraging collective bargaining or membership in the Unions.
While a unilateral determination of terms of employment with re-
spect to which a statutory representative is attempting to bargain
normally evidences bad faith'15 lender all the circumstances of this case,
including the fact that immediately after the posting of the Notice
the respondents continued to discuss and consider the proposals of
the Unions, we do not find that the respondents' action in issuing the
notice without prior consultation constituted a refusal to bargain in
good faith.16
2. The breakdown in negotiations ; the events of November 27
By the close of the meeting of Friday, November 24, the respond-
ents and the Unions were still in disagreement on a number of mat-
ters, including the closed-shop and double-time provisions. A further
conference was set for 2:30 on the afternoon of Monday, November
27. However, at a meeting of the Unions on the evening of November
24, a strike vote was taken and carried. Although the record is not
clear as to the exact wording of the question voted upon,17 it appears
that the vote authorized the officials of the Unions to call a strike, if
they considered it necessary to do so.
On the morning of Monday, November 27, Balsz, Hall, and Simonds
came to the respondents' plant shortly before 7: 30, the time at which
the employees customarily reported to work. In effect, they told
the pressroom and bindery employees as they came to work to remain
outside the plant pending an attempt to negotiate further with the
11 See, e . g., Matter of Whittier Mills Co., etc and Textile Workers Organizing Committee,
15 N. L R. B ., 457, enf'd National Labor Relations Board v. Whittier Mills Co , 111 F
(2d) 474 (C C A. 5) ; Matter of Wilson and Company and United Packinghouse Worl ers,
L I U, 51 P . W. 0 C of C 1 0, 19 N. L. R B 990 , enf'd Wilson it Co vi National
Labor Relations Board, 115 F. (2d) 759 (C. C. A 8) ; Matter of Chicago Apparatus Com-
pany and Federation of Architects , Engineers, Chemists and Technicians, Local 107,
12 N. L R. B. 1002, enf'd National Labor Relations Board v. Chicago Apparatus Co.,
116 F. ( 2d) 753 ( C. C. A 7 ) ; Matter of John J. Ovghton , et al. and Textile Workers
Organ izing Committee ( C I 0.), 20 N . L. R. B 301, enf 'd mod Windsor Mfg Co v
National Labor Relations Board, 118 F (2d) 494 ( C C A 3 ) , Matter of Inland Lime and
Stone Company and Local No 377 of the International Union of Mine , Mill and Smelter
Workers ( C. I. 0.), 24 N L R B 758, enf 'd F (2d ) ( C. C. A 7 ). Matter of George P.
Pilling it Son Co . and Dental, Surgical and Allied Workers Local Industrial Union No 119 ,4
affiliated with the C. 1. 0., 16 N. L. R. B. 650, enf'd National Labor Relations Board v.
Pilling & Son Co., 119 F. (2d) 32 ( C. C. A. 3).
16 Cf. Matter of Westchester Newspapers , Inc., et al. and Westchester Newspaper Guild,
etc, 26 N. L. R B. 630. 1
11 Simonds testified that he was unable to find union records of what transpired at that
meeting or at any other of the several union meetings material herein.
SAM M. JACKSON ET AL. 203
respondents. Although not specifically stated in the record, it is
nevertheless clear that the pressroom and bindery employees agreed
not to go to work until notified to do so by the union representatives,
and we so find.
Jackson arrived at the plant shortly after 7: 30 a. in., at which time
the union representatives informed him, in substance, that they wished
to conclude the negotiations and obtain signed agreements. After a
discussion with the union representatives, Jackson went into the plant
and talked with Holdsworth, who had arrived at the plant in the mean-
time. After a discussion with Holdsworth, Jackson rejoined the union
representatives, who were waiting outside 18 Jackson told the union
representatives that the respondents were willing to sign agreements
with the Unions, but not in the form in which they had been submitted.
The testimony of Jackson and the union representatives is at vari-
ance as to the modifications which Jackson said would make the agree-
ments acceptable to the respondents. Jackson testified that when he
was asked what changes the respondent desired in the proposed agree-
ments, he replied that they had already discussed the changes the
respondents desired at their past meetings. Jackson added that he
specifically discussed with the union representatives at that time the
question of double time for Sundays and holidays, which he said the
respondents could not agree to, and that he also mentioned a desired
change in a provision concerning the number of pressmen to be em-
ployed for a particular operation. According to Jackson, at the
conclusion of the discussion, it was agreed that the union representa-
tives would attempt to revise the proposed agreements so as to make
them acceptable to the respondents, and would present the agreements
to the respondents again in the afternoon.
The union representatives testified that after Jackson returned from
his conversation with Holdsworth, Jackson stated 'that certain specific
changes would make the Pressmen's agreement acceptable to the re-
spondents; that as Jackson stated the desired changes in the Pressmen's
agreement Balsz wrote the changes in pencil on the margin of a copy
of the proposed Pressmen's agreement; and that Jackson had no
changes to suggest in the Bookbinder's agreement. There was intro-
duced into evidence a document entitled "Supplement to Wage Agree-
ment, Pressmen and Assistants' Union No. 78," which was identified as
the copy of the Pressmen's proposals of November 24, upon which Balsz
wrote Jackson's suggested changes on the morning of November 27.
This document bears certain penciled notations which Balsz testified
were in his handwriting and were the changes suggested by Jackson
on November 27. These penciled notations, with one exception, con-
stitute simply the words "day work"- placed after the wage rate for
Is No suggestion was made by the union representatives that they go inside to talk with
Holdsworth also.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each of several classes of work. The one exception is a notation in
pencil for the wage rate to be paid an assistant on the horizontal press.
We do not credit the testimony of the union representatives concerning
the proposed changes mentioned above. We do not believe that Jack-
son would omit any mention of the provisions in the proposed agree-
ments, such as those providing for a closed shop and double time for
Sundays and holidays, to which the respondents had been objecting
since November 14. It is equally incredible that the respondents would
have sought changes which were in fact adverse to their own interest 19
For the foregoing reasons we are convinced, as was the Trial Ex-
aminer, that Jackson's version of the above incident is true, and we
find that Jackson indicated to the union representatives that if they
revised their proposed agreements to meet the major objections which
the respondents had expressed in previous meetings, the respondents
would consider and probably sign such revised agreements.
The union representatives further testified that before leaving to
make the changes proposed by Jackson, Hall suggested that the em-
ployees go to work, but that Jackson replied, "No, they are out now ;
let them stay out until the thing is settled." Jackson denied that any
such request and refusal occurred. Since Jackson's version of the
events of November 27 is more credible than that of the union repre-
sentatives, we credit Jackson's denial, as did the Trial Examiner.
Shortly after 1 o'clock, the union representatives returned to the
respondents' plant with their revised agreements. The revisions in
the Pressmen's agreement consisted of the penciled notations, above
discussed, and two additional paragraphs, which, while not suggested
by Jackson on' that morning, had been discussed with the respondents
at one of the earlier meetings, according to Balsz. On its face it
appears that the Pressmen's supplement modified the original agree-
ment, presented to the respondents on November 13, only by making
specific changes in the scale-card provisions attached to the printed
closed-shop agreement. Indeed, the first paragraph of the revised
proposal read as follows :
The following schedule of wages, and changes in working con-
ditions, to be submitted for similar positions as given in the
attached scale card. All other wage standards and working con-
ditions to be and remain unchanged.
The document presented on behalf of the Bookbinders was merely a
retyped copy of the supplement presented to the respondents on Novem-
ber 24. It also was merely an amendment in certain specific respects
'B It is clear that the limitation , "day work," following the respective wage rates might
serve as a basis for union demands that the respondents pay higher rates for night work,
since no rates for work other than "day work" were specified.
SAM M. JACKSON ET AL. 205
to the wage scales attached to the basic closed-shop agreement, and its
first clause was identical with that quoted above. Thus, from the
modified proposals of November 27 themselves, it would appear that
the Unions did not depart from the closed-shop provisions first pre-
sented on November 13. While the union representatives stated at the
hearing that they had waived these provisions in the discussions prior
to November 27, they did not specify when or in what manner or form
such provisions had been waived. Moreover, the closed-shop pro-
visions admittedly continued to be a focal point of discussion for weeks
after November 27. Under these circumstances, we do not, nor did the
Trial Examiner, credit the testimony of the union representatives that
the closed-shop provisions had been waived prior to November 27, and
that on that day the Unions desired only the limited demands contained
in the respective one-page typed supplements. Furthermore, the sup-
plements, as submitted on the afternoon of November 27, continued to
provide for double time for Sundays and holidays, a provision which
the respondents had never accepted and which Jackson had advised the
union representatives on that morning that the respondents would not
accept.
The union representatives testified, in effect, that when they pre-
sented the supplemental agreements to Holdsworth and Jackson
shortly after 1 o'clock on the afternoon of November 27, Holdsworth
looked at the supplements and stated that he could not agree to them.
As stated above, Holdsworth was under the care of a physician at the
time of the hearing, and did not testify. Jackson testified that he
was not present when the agreements were returned, but that later in
the day Holdsworth told him of the meeting and stated that the agree-
ments as presented by the Unions were not satisfactory and did not
contain the changes which the respondents had requested. Balsz
testified that at the time the union representatives returned with the
agreements they told Holdsworth that "if this was acceptable that the
men were ready-that the employees were ready to go back,to work."
From the foregoing, we are convinced that Holdsworth refused to
sign the proposed agreements submitted by the Unions because the
respondents could not agree to certain provisions therein, and that the
employees continued to strike because of this refusal.
We find that the respondents did not lock out its employees on
November 27, but that they went on strike. We further find that the
respondents did not refuse to bargain collectively on or before Novem-
ber 27, and that the strike which started on November 27 was not
caused by any unfair labor practices of the respondents, but rather
by the lawful refusal of the respondents to accede to the Unions'
demands.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Further negotiations after November 27
On November 27, after the events set forth above, the Unions filed
charges with the Regional Director alleging that the respondents had
refused to bargain collectively with the Unions. During the after-
noon, the respondents inserted advertisements in Los Angeles news-
papers seeking employees. The advertisements stated that strike
conditions prevailed and offered the wage rates posted on November
20. On November 28, the respondents began to hire new employees.
Under date of November 28, 1939, the respondents sent to the Unions
a joint 1-year written contract incorporating the wages and working
conditions as set forth in the respondents' notice of November 20.
So far as appears from the record, the Unions never replied to this
proposal of the respondents.
On or about December 1, at the invitation of the Regional Office of
the Board, the respondents and the Unions met at the Board's Los
Angeles office. The Unions were represented by Simonds and Hall,
and the respondents by Holdsworth, Jackson, and their attorney,
Harold Richardson 2e At the meeting, the Regional Director asked
the parties if they could not "get together," and what their demands
were. Richardson stated that the respondents had no demands and
requested that the Unions present their demands. Hall and Simonds
then laid upon the Regional Director's desk the closed-shop agree-
inents and the scale cards which had been presented to the respond-
ents at the outset of the negotiations on November 13. The Regional
Director indicated that that was "a starting point," and asked if the
parties could "bargain from there." Richardson then said that the
respondents would submit 'a counterproposal in writing and mail it
on that night or on the next day.
On the evening of December 1, Holdsworth, Jackson, and Richard-
son met and discussed the respective agreements and scale cards. Pur-
suant to the decisions reached by the respondents in this conference,
two letters were drawn up by Richardson and signed by Holdsworth.
One was sent to the Bookbinders and the other to the Pressmen. The
letters, dated December 1, 1939, were similar in nature.
In these letters, the respondents set forth item by item a substantial
portion of the provisions of the respective scale cards and stated
that they were acceptable to the respondents. Wage scales in line
with those posted on November 20 were offered. In each letter, the
respondents stated that they would not accede to the closed-shop
demands of the Unions that the respondents employ only members of
20 Richardson was retained by the respondents to negotiate for them either on or
shortly after November 27, and represented the respondents in the negotiations which
followed
SAM M. JACKSON ET AL. 207
the respective Unions and send out work only to union establishments.
The next to the last paragraph in each letter was identical and read
as follows:
Your attention is directed to the recent strike which was called
by your organization in our plant. We feel that the strike coming
as it did during negotiations which were then pending was un-
called for. We are accordingly requesting that you immediately
rescind the order calling such strike.
Following the receipt of the above letters, meetings were held be-
t%veen the respondents and the Unions, during which both parties made
concessions. By December 11, the respondents and the Unions had
agreed upon all matters except the closed-shop provisions and the
reinstatement of the strikers. On December 12, the Unions submitted
a substitute proposal for the closed-shop provisions of their agree-
ments. This proposal'21 which was admittedly submitted by the
Unions in an endeavor to meet the respondents' objections to the
closed-shop provisions, contained among other things the following
two paragraphs :
All employees who failed to go to work at the Western Printing
Company pressroom on November 20th, 1939,22 to be reinstated
without prejudice, and at the rate of wages agreed to in this
agreement.
Should a vacancy occur in the pressroom, due to the discharge,
resignation, or for other cause, of any of the re-instated employees,,
the vacancy shall be filled by a member of this union and when
other help is needed, preference shall be given to members in good
standing in the union.
On December 13, the respondents wrote similar letters to the Unions
recapitulating prior negotiations. These letters stated that the
respondents had granted certain wage increases asked by the Unions,
and that the Unions had receded from their demand for double time
for works on Sundays and holidays, and agreed that such overtime
should follow the scale in the contract with the Typographical as it
might vary from time to time, and which at the time of the negotia-
tions provided for time and one-half. In both letters, the respond-
ents again insisted that they could not accept the closed-shop de-
mands, and that, the substitute proposal of December 12 still incor-
porated the closed-shop principle and accordingly was not acceptable
=While the proposal in evidence pertains only to the Pressmen, the respondents' letter
of December 13 to the Bookbinders refers to such a proposal on December 12. We infer
and find that the Bookbinders made a parallel proposal at the time.
= This is apparently an inadvertent error. As noted above , the strike began on
November 27.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the respondents.23 The next to the last paragraph in each of the
December 13 letters read as follows :
It is also our desire that the strike order which was made on
November 20, 1939, be rescinded to the end that all of your
members who desire to do so may avail themselves of the benefits
obtained by our negotiations to date. ,
On December 20, 1939, following further conferences concerning
the reinstatement of employees, the respondents wrote a letter to
the Unions stating the position of the respondents concerning such
reinstatements. The contents of this letter were as follows :
In our last conference you inquired concerning the policy of
Western Printing Company toward striking employees in the
event that the strike order be rescinded. You are advised that
the attitude of Western Printing Company with reference to the
strike in the first instance is that it was uncalled for. The only
assigned reason for the strike was the refusal to negotiate on the
part of Western Printing Company. The Company disputes
the fact that they have ever been unwilling to negotiate, and
their willingness in this respect we feel has been evidenced
throughout the entire period, both before and after the strike
order.
With reference to employees returning, we do not feel that
all of the employees will desire to return, and in this connection
suggest that all who desire to do so immediately file application
for reinstatement. This will give the Company and yourselves
an opportunity to take up the case of each individual desiring to
return. I desire to assure you in this connection that no strik-
ing employee will be refused the employment for the reason that
he has participated in either a union organization or the strike
itself. There will be, however, at least one instance in which
reemployment will be refused for other reasons.24
With reference to the continued employment of present em-
ployees replacing strikers, the Company will of course dismiss
at least some of them, but the Company will nevertheless reserve
the right to continue all or any of them in its employ. I regret
exceedingly that your request that they all be dismissed cannot
21 In addition to the increased cost involved in sending their work only to union estab-
lishments , which had been pointed out during the negotiations prior to November 27,
Jackson testified that a further reason for the respondents ' reluctance to enter into a
closed -shop agreement was that they felt the pressmen and the bindery workers were too
little organized in and around Los Angeles to provide a satisfactory supply of skilled labor.
u It appears that this refers to James C. Jennings , former ' pressroom foreman. His
case is discussed below.
SAM M . JACKSON ET AL. 209
be granted. Such action on the Company's part would be tanta-
mount to agreeing to the closed shop principle, which is impos-
sible as we have previously advised you. Such action would
also amount to discrimination between union and non-union
workers against which discrimination the Company has
previously pledged itself.
Trusting that the foregoing statements will meet with your
agreement, if not with your approval, I am
Most sincerely yours,
[S] HAROLD RICHARDSON.
According to Richardson, on about December 20 he was informed
by the Unions that the employees would return to work if the re-
spondents signed closed-shop agreements with new locals of the Inter-
national Pressmen and Bookbinders, respectively, which would restrict
their membership to workers in Whittier. Richardson testified fur-
ther that after consulting with the respondents, he informed the
Unions that that proposal was unsatisfactory, and that thereafter he
was informed that the Unions met again and voted not to return to
work in view of the respondents' rejection of their proposal. The
union representatives and members, although testifying that at about
this time the Unions voted to return to work and subsequently reversed
that vote, gave a somewhat different but confused account as to the
nature of these votes. Upon the entire record, we credit Richardson's
testimony in this regard, as did the Trial Examiner.
On December 26, the respondents reinstated three of the strikers
upon their individual applications.25
On January 4, Balsz telephoned Richardson and asked that the
respondents meet with vice-presidents of the international unions
with which the local unions here concerned are affiliated. Richard-
son arranged the meeting, which was held in his office in Whittier,
on January 5 at 2: 00 p. m. The respondents were represented by
Jackson and Richardson. The Unions were represented by Balsz and
their respective international vice-presidents, Robert L. Ennis for
the Bookbinders, and Harry Listman for the Pressmen. The under-
standing reached at that meeting was set forth in a letter dated Feb-
ruary 7, 1940, from the Bookbinders' vice-president, Ennis, to the
Regional Office of the Board in Los Angeles. This letter substantiates
in all material respects the testimony of the respondents' witnesses
as to what occurred at the meeting on January 5. We find that the
z According to undisputed evidence adduced by the respondents , the three employees
informed the respondents that they had consulted officials of the State Labor Department
and agents of the Board and had been informed that such reinstatement was permissible.
There is no evidence that the respondents were seeking to break the strike by soliciting
the individual employees to return to work.
210 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
portidns of the letter set forth below, which apply to the meeting of
January 5, reflect what actually took place at this meeting.
After consideration of the letter as of January 4,26 1940, at
this meeting, it was agreed by all concerned that this matter would
be reopened for consideration and, if possible, adjustment of the
main point that seemingly was an obstacle, being the closed shop
clause of a previous agreement.
After considerable discussion by all concerned it was agreed
that the closed shop clause would be set aside for the present and
that the strikers would file their applications to return to work
with a general understanding that one member of the Printing
Pressmen would not be acceptable, a Mr. Jennings, by the firm.
It was stated at this. meeting by the Pressmen that Mr. Jennings
had no desire to return to this firm as an employee and this phase
was eliminated.
The agreement reached by all concerned at this meeting was as
follows :
1. That all the employees now on strike would file their appli-
cations at once for their positions with this firm.
2. That they, the employees, would be placed back in their
positions as the work warranted same.
3. That the matter of the strike breakers now in the employ
of this Company, be left in the hands of the firm with the assur-
ance from Mr. Richardson and Mr. Jackson that if we would
agree to this action and show a little faith the strike breakers
would be eliminated in the near future and the strikers reinstated.
According to Ennis' letter, the strikers met on January 6, and
voted to approve Ennis' report of the conference of January 5, and
"to report back for work and file their applications for their positions."
On January 8 or shortly thereafter, all of the striking employees,
except James C. Jennings, the former pressroom foreman, filed written
individual applications for reinstatement 27
On January 12 the respondents wrote to the Unions jointly, ac-
knowledging receipt of applications from "all striking employees"
except Jennings, and stating that each applicant would be considered
and notified as soon as there was an available opening for employ-
ment. The letter of January 12 contained the following two
paragraphs:
2c The said letter of January 4, was a letter from Richardson confirming the arrange.
ments for the meeting , recapitulating some of the negotiations , and asserting that the
respondents were still unwilling to accept the closed -shop provisions.
27 The names of the employees filing the written applications for reinstatement are set
forth in footnote 2. See also footnote 3.
SAM M. JACKSON ET AL. 211
We regret that at this time there are no such openings due to
the fact that upon being notified by your representatives that
the employees had voted not to return to work in response to
our request of December 20, 1939, and previous requests, the com-
pany was compelled to and did replace the striking employees
with new employees.
We trust that in the immediate future we will be able to replace
as many of the striking employees as possible.
Five days later, on January 17, the respondents wrote similar
letters to the Unions with reference to the applications for reemploy-
ment. Each letter explained that certain persons had been placed
on the "extra list," and reasons were given why certain individuals
could not at that time be reemployed. The letter to the Pressmen
specifically requested that Hansen and Rice be instructed "to report
to Mr. Jackson at their earliest opportunity." The letter to the
Bookbinders asked that Millie Furry and Helen Weadon (Easter-
ling) "report to Mr. Jackson at their earliest opportunity so that.
arrangements can be made to employ them when work is available."
None of these four employees ever reported to the respondents as re-
quested in the letters of January 17. The union representatives
testified in effect that they never instructed the four employees to
report and that the Unions' position at that time was that unless all
employees for whom there was work were taken back to work, dis-
placing strikebreakers if necessary, none would return. Following
the receipt of the respondents' letters of January 17, further con-
ferences were held between the respondents and the Unions, in which
the Unions took the above position. After these conferences, the
respondents again wrote similar letters, dated January 25, to the
Unions, setting forth the respondents' position with regard to the
availability of employment for certain employees. The gist of the
respondent's postion on the entire question of reemployment is set
forth in the identical first paragraph of each letter. This para-
graph reads in part as follows:
Supplementing my last letter to you of January 17, 1940, it is
my understanding that the striking employees of both the press-
room and bindery in Western Printing Company have unani-
mously decided that they will not return to work except under
circumstances which will admit the re-employment of the entire
group of strikers (excepting James Jennings and his son). If
that is their decision, the company will have to abide by it,
of course, but as we explained to you in our letter of January
17, 1940, and in our conference at your office January 24, 1940,
it is impossible, due to lack of work and 'the lack of jobs to re-
employ all of these employees.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondents', letters of January 25 terminated the relations
between the respondents and - the Unions. None of the striking
employees thereafter filed applications for employment.
From the foregoing, and upon the entire record, we are satisfied
and find that the respondents did not refuse to bargain collectively,
within the meaning of the Act, subsequent to November 27, 1939.
We have found above that the respondents likewise did not refuse to
bargain collectively on or prior to this date. In view of the fore-
going it is unnecessary to make any determination as to the appro-
priate bargaining unit or units or as to representation by the Unions
of a majority in the appropriate unit or units.
B. The alleged refusals to reinstate employees
The complaint alleges that the respondents discriminated in re-
gard to the hire and tenure of employment of the 16 employees
named above.28
James C. Jennings was employed by the respondents in 1929 as a,
pressman. Some 3 or 4 months later he was given the position of
foreman of the pressroom, in which he remained until November 27,
1939, when he went on strike under the circumstances set forth above.
Jennings was active in organizing the respondents' employees in the
Unions; as noted above, the Unions held their organization meetings
at his home in Whittier.
On November 29, 1939, two days after the strike had begun, Jen-
nings' position was filled by one Gutwein, who has continued in the
respondents' employ. Thereafter, in the negotiations held in De-
cember, during which the reinstatement of the strikers was discussed,
the respondents took the position that they would not consider the
reinstatement of Jennings and advanced Jennings' drunkenness as
the reason therefor. In this connection, it was shown at the hearing
that for a number of years preceding the strike of November 27
Jennings, "a very high-class pressman . . . when he was sober," had
become so drunk upon various occasions that he was unable to come
to work for several days. As set forth above, on or before January 5,
1940, the Pressmen withdrew their demand that Jennings be rein-
stated. Jennings did not apply for reinstatement thereafter.
Jennings' leadership in organizing the respondents' employees and
the fact that the respondents had not considered his drunkenness
a sufficient handicap to warrant his discharge during the years prior
to the strike raise doubt as to whether drunkenness was the true
reason for the respondents' refusal to reinstate him. However, as
noted above, Jennings' position was filled by Gutwein immediately
21 See footnotes 2 and 8.
SAM M. JACKSON ET AL. 213
after the start of the strike, which was neither caused nor prolonged
by any unfair labor" practice. There is no showing that Gutwein
was less efficient than Jennings as a workman or that Gutwein had
any characteristic detrimental to his efficiency such as Jennings'
periodical drunkenness. Under the circumstances we agree with the
Trial Examiner that the weight of the evidence in the record as a
whole is not sufficient to sustain the allegations that Jennings was
refused reinstatement because of his union membership and activity.29
The remaining strikers. As found above, on January 5, 1940, it
was agreed between the Unions and the respondents that the strikers,
excepting James C. Jennings, would file applications for reinstate-
ment, that the strikers would be reinstated "as the work warranted
same," and that "the matter of the strike breakers . . . be left in
the hands of the firm with the assurance . . . that the strike breakers
would be eliminated in the near future and the strikers reinstated."
On or shortly after January 8 the 15 striking employees filed their
applications, and were advised by the respondents that there were no
positions available since the strikers had been replaced by new em-
ployees, but that the applicants would be considered and notified
when positions became available. At this time the respondents had
in their employ 19 persons, exclusive of the 3 strikers who returned to
work in December,S° who had been hired during the strike to fill
positions vacated by strikers. Thereafter, in their letters of Janu-
ary 17, the respondents informed the Unions that they had placed 6
of the striking employees on the "extra list" ; 31 advanced certain
reasons why 4 striking employees could not be reemployed at that
time; 32 and requested of the Unions that Hansen and Rice "report.
to Mr. Jackson at their earliest opportunity" and that Furry and
Helen Weadon (Easterling) "report to Mr. Jackson at their earliest
opportunity so that arrangements can be made to employ them when
work is available." 33 This statement was unsatisfactory to the
Unions, who thereupon advised the respondents that none of the
^ In connection with the respondents ' refusal to consider the reinstatement of Jennings
and the reasons advanced for the refusal to reinstate Weadon and Youngquist, discussed
below, we have considered the testimony of Baker, a striking employee, to the effect that
during a conversation with Jackson in about July 1940 Jackson said that Jennings "sold
out himself, he sold out the plant , and he sold us out, God bless his heart" and that, by
striking , the employees "certainly did him a favor " in that "he got rid of three men
(Jennings , Youngquist, and Weadon ) he had been wanting to get rid of and he didn't
have any reason to get rid of them before." Jackson denied that he made such state-
ments during the conversation . We are satisfied from Jackson 's version of this conversa-
tion and from the character of Baker's entire testimony that Jackson did not make these
statements.
so See footnote 25, supra.
31 Glen Armstrong, Neva Palmer , Ethel Kelly, Clara Salm, Grace Laverne Baker, and
Mary Jones Pfirrman
82 Vincent Youngquist , Claude Weadon , William G. Harris, and Jack 'K Smith.
_U The two remaining striking employees were James C. Jennings , whose case is dis-
cussed above , and his son , James R . Jennings , who did not desire reinstatement.
451269-42-vol. 34-'-15
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
striking employees would return to work unless the respondents
would reinstate all the strikers except James C.' Jennings and James
R. Jennings to available positions, displacing employees hired since
the strike began if necessary. As appears in their letters of Janu-
ary 25' to the Unions, the respondents refused to accede to their
demand. None of the striking employees thereafter applied for
employment.
The Unions contend that the reasons advanced by the respondents
on January 17 for refusing to reinstate certain of the strikers, viz,
Youngquist, Weadon, Harris, and Smith, show that the respondents
were determined not to 'reinstate the striking employees because of
their union activity. The respondents asserted that Yowngquist, who
was employed as a cutter in the bindery prior to the strike, was "not
equipped for any other employment in the bindery other than that
of cutter," and that "the Company has not now sufficient work to
employ a journeyman cutter and for the time being at least the cut-
ting will be done by an apprentice." While Youngquist testified
specifically that he had performed various types of bindery work
other than cutting, the respondent Jackson testified that to his knowl-
edge Youngquist had not performed such other work. Weadon, who
was Youngquist's foreman and who also was a striker, was called as
a witness by the Board, but did not testify as to Youngquist's ability
to perform bindery operations other than cutting. Concerning
Weadon, who was foreman of the bindery prior to the strike, the re-
spondents stated that his position no longer existed. Following the
strike, Jackson added the foremanship of the bindery to his other
duties as foreman of the composing room and superintendent of the
plant. Jackson had acted as foreman of the bindery some years
before Weadon had been employed. The respondents also stated
that one of the three strikers who had returned to work in Decem-
ber, as set forth above, was satisfactorily performing the work on
the folder which Weadon had done in addition to his work as fore-
man of the bindery. No evidence to the contrary appears in the
record. As regards Harris and Smith, the respondents stated : "these
men are both feeders, and in accordance with the policy adopted by
the Company and heretofore discussed, the Company will no longer
employ feeders; journeymen pressmen will be used hereafter in all
cases." The Unions contended that Harris and Smith were qualified
as journeymen pressmen. Although there is evidence that prior to
the strike Harris and Smith had performed some operations ordi-
narily performed by pressmen, the record also shows that a consider-
able portion of their work consisted of feeding presses and that
neither of these persons was considered or classified as a qualified
pressman by the respondents. Indeed, Harris described himself
as a feeder in his application for membership in the Pressmen.
SAM M. JACKSON ET AL. 215
Upon the entire record, including the fact that all positions avail-
able at the time the strikers applied for reinstatement were filled,
the fact that the strike was neither caused nor prolonged by any
unfair labor practices,34 and the fact that the respondents demon-
strated their willingness to employ several of the strikers when vacan-
cies occurred, we are satisfied and find, as did the Trial Examiner,'
that the respondents did not refuse to reinstate any of the striking
employees because of their union membership or activity.
C. Alleged interference, restraint and coercion
At the hearing, witnesses for the Board gave testimony concerning
statements allegedly made to them by two of the respondents, Jack-
son and Lewis. For instance, Armstrong testified in effect that one
night in the pressroom, about November 16, Jackson showed him a
slip of paper with wage rates on it which they had decided to pay
and told him that they could not have Los Angeles dictating to them;
that they would have to close up the shop if they had to pay more;
and that he did not object to union membership but thought a Whit-
tier local would be better. According to Jackson's version of the
conversation, Armstrong came to him and asked him if he did not
think a local of their own in Whittier would be better, and that he
told Armstrong in substance that he was not doing Armstrong's
thinking for him. Jennings, the pressroom foreman, testified in ef-
fect that he and Jackson had frequently talked about unions, that in
October 1938, Jackson had shown him a newspaper photograph of
John L. Lewis in a C. I. O. office with a sign on the wall reading, "Pay
union dues here," and had said, "There is the reason for your unions.
All they want is your money. They are just a bunch of racketeers."
Among other things, Jennings also testified that 2 or 3 days after
November 14, Jackson came ,to him one morning and told him that
the union representatives were coming out to the plant, and that he
wanted Jennings to meet the representatives "and tell them that they
weren't needed out there, that we could settle our own differences
back there and to tell them to go back to Los Angeles." Jennings
further testified that about November 14 or 15 after the union or-
ganizers left the plant, Jackson pointed to an employee named
Youngquist and said, "I always thought that fellow was a Communist.
He is responsible for this whole thing. Now I know he is a Com-
munist." In addition, Jennings testified that on November 18 Jack-
son suggested in effect that four of the employees keep their union
11 Cf N L R. B. v. Mackay Radio & Telegraph Company, 304 U S, 33, rev'g 92 F.
(2d) 761 _(C. C. A. 9), and enf'g Matter of Mackay Radio & Telegraph Company and
American Radio Telegraphast'a Association, Sat Francisco Local No. 3, 1 N L. R. B, 201.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards and that they let the, rest of the pressroom and the bindery
alone. Jackson specifically denied all of the foregoing testimony of
Jennings with the exception of the October 1938 conversation relative
to John L. Lewis, about which he did not testify. Jackson also spe-
cifically denied having discussed union activities with Jennings after
he had been contacted by the union organizers on November 13, 1939.
Before that time Jackson and Jennings admittedly had been on
friendly terms.
One Board witness, Vincent Youngquist, testified that about No-
vember 23 or 24 Miss Lewis, one of the respondents, came to him by
his cutting machine, that she was trembling from head to foot, and
that the following took place :
She said : "I suppose you realize when you walk out of here that
you will lose your home." And I didn't answer her and she says,
"You know, it's a terrible thing to lose your job, to be out of
work." She says, "I just wanted to let you know that I have
some very good contacts in Los Angeles and I would be more
than glad to take your property and handle it for you because
of your losing it." She said, "Several nights ago I took a basket
of food out to some people that were starving, and some starv-
ing children and," she said, "It was a pitiful sight."
I told her I had no idea, no intention, of leaving my home and
she stomped off and that was the end of the conversation.
Lewis admitted having been friendly with Youngquist for some 10
or 12 years, but denied ever having discussed union activities or his
union membership with Youngquist. She specifically denied the con-
versation testified to by Youngquist or anything of a similar nature.
Lewis also denied having real estate connections excepting that she
had lived in and sold two homes.
The Trial Examiner, who observed the demeanor of the witnesses,
credited the denials by Jackson and Lewis of the foregoing and other
similar testimony by witnesses for the Board, and found that the
said respondents had not interfered with, restrained, or coerced their
employees by any of their acts or statements. We concur in the find-
ing of the Trial Examiner.85
George Morrison, who served as assistant to Jackson in the re-
spondents' composing room and who, according to the laws of Typo-
5 There is also testimony that the Bookbinders attempted to organize the bindery at
the Whittier plant during 1928 and 1929 ; that the Pressmen attempted to organize the
pressroom during June 1936 ; and that Jackson attempted to discourage union organization
in each case . Both organizational attempts took place before the respondents formed
their co-partnership , and Jackson denied having any memory of such attempts. We have
considered the testimony concerning these earlier organizational attempts and agree with
the Trial Examiner that the evidence does not establish the existence of an anti-union
attitude on the part of Jackson prior to the formation of the co-partnership.
SAM M. JACKSON ET AL. 217
graphical, did not have the power to hire and discharge,36 admitted
having had discussions a few days before November 27 with three
employees, Youngquist, Rice, and Jennings. We credit, as did the
Trial Examiner, the testimony of Morrison concerning these con-
versations; the following findings are based largely thereon. Mor-
rison was formerly president of the Whittier Typographical Local for
several years, and had considerable experience in union affairs before
coming to work for the respondents some 12 years ago. From his
personal experience, both at Whittier and elsewhere, he thought that
it was more desirable to have a Whittier local than to belong to a Los
Angeles local. Morrison, an active member of the Typographical
local in Whittier, was personally interested in the organization of
other of the respondents' employees by printing trade unions. Such
an interest by an active union leader in organizational work taking
place by closely allied unions 37 is not unnatural.
In discussing the organizational activities of the Pressmen and
Bookbinders with Jennings, the foreman of the pressroom, Morrison
told Jennings, among other things, that they should be careful how
they proceeded and that they should do it "in a smart way" through a
local in Whittier. In a discussion of the relative merits of a local in
Whittier in contrast to membership in a Los Angeles local, Morrison
told Youngquist, a cutter in the bindery, that he thought it would be
better for them to have a Whittier local. Youngquist replied that he
thought they could get along further with a Los Angeles local "back
of them." In a similar conversation with Martin Rice, a pressman
who worked a few feet from him and with whom he had been friends
for some time, Morrison told Rice, in effect, that he thought Rice would
be foolish to go out on strike.
None of the employees with whom these discussions were had came
under Morrison's supervision, and one of them, Jennings, who had
authority to hire and discharge employees, clearly rated higher in
supervisory authority than Morrison. Morrison denied that he acted
in any way at the instructions of the respondents. He has no financial
interest in the business. The fact that foremen with supervisory
authority traditionally have been active in the printing-trade unions
is clearly borne out by the record in the instant case. We find, as
86 The relevant portion of the General Laws of Typographical reads in part as follows :
In union composing rooms the foreman is the only recognized authority . Assistants
may be designated to direct the work, but only the foreman may employ and discharge.
Jackson himself served as foreman of the composing room and Morrison served as his
assistant.
87 The close relationship existing between Typographical and other printing trades
unions, such as the Pressmen and Bookbinders , is shown by the 8 -page agreement among
these unions and two others controlling "an association for joint ownership of the allied
printing trades union label."
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did the Trial Examiner , that upon this record Morrison 's statements
do not reflect coercive conduct by the respondents.
D. Conclusions
We have found above that the respondents did not, as alleged in the
complaint ; ( 1) refuse to bargain collectively , within the meaning of
the Act; ( 2) lock out their employees and subsequently refuse them
reinstatement , thereby discouraging membership in the Unions; or
(3) otherwise interfere with , restrain , or coerce their employees in
the exercise of the rights guaranteed in Section 7 of the Act. Ac-
cordingly , the complaint will be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. The operations of the respondents, Sam M. Jackson , Cecil J.
Lewis, and Harry C. Holdsworth , doing business as Western Printing
Company, a co-partnership , at their Whittier , California , plant, occur
in commerce , within the meaning of Section 2 ( 6) of the Act.
2. International Brotherhood of Bookbinders , Local No. 63, A. F. L.,
and International Printing Pressmen and Assistants ' Union of North
America, Local No. 78, A. F. L., are labor organizations , within the
meaning of Section 2 (5) of the Act.
3. The respondents have not refused to bargain collectively with
International Brotherhood of Bookbinders , Local No. 63, A. F. L.,
and International Printing Pressmen and Assistants ' Union of North
America, Local No. 78, A. F. L., within the meaning of Section 8 (5)
of the Act.
4. The respondents have not discriminated in regard to hire or
tenure of employment or any term or condition of employment , within
the meaning of Section 8 (3) of the Act.
5. The respondents have not interfered with , restrained , or coerced
their employees in the exercise of the rights guaranteed in Section 7
of the Act, within the meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the complaint
against the respondents , Sam M. Jackson , Cecil J . Lewis, and Harry
C. Holdsworth , doing business as Western Printing Company, a co-
partnership , be, and it hereby is, dismissed.
SAM M. JACKSON ET AL. 219
MR. EDWIN S. STIITH, dissenting :
In my opinion the respondents engaged in unfair, labor practices,
within the meaning of Section 8 (1), (3), and (5) of the Act.
I dissent therefore from the • Decision and Order dismissing the
complaint.
Conferences for the purpose of collective bargaining were held
between the Unions and the respondents between November 14
and 24, 1939. In the course of these negotiations on November 20,
the respondents posted, without prior submission or notification to
the Unions, a notice fixing the wages and hours of work of the bindery
and pressroom employees here concerned. Thus the respondent
sought to settle unilaterally a matter "peculiarly a subject for
collective bargaining . . . with respect to which the employees had
appropriately requested collective bargaining." 38 As the majority
of the Board recognizes, the Board and the courts have frequently
held that such action constitutes a refusal to bargain collectively and
an unlawful undermining of the bargaining authority of the statu-
tory representative.311 In my opinion no reason appears in the in-
stant case warranting a departure from these precedents. That cer-
tain portions of the notice had application to employees other than
those, on whose behalf the Unions sought bargaining obviously can-
not excuse the respondents from conduct in disregard of their duties
under the Act to those employees who had duly selected a bargaining
representative.
Nor am I convinced, as the majority of the Board appears to hold,
that this violation of the Act was cured or obviated by any subse-
quent conduct of the respondents. True it is that Unions sought
collective bargaining after the posting of the notice and the re-
spondents met with them. But the natural effect of the respondents'
unilateral determination was to impede and frustrate the bargaining
process. Indeed, that such was the intended and actual effect of the
unilateral determination is affirmatively disclosed by Holdsworth's
statements at the conference of November 20, when the union repre-
sentatives learned of the posting of the notice, and at the subsequent
conference of November 24, when the union representatives submitted
modifications of their original proposals, that the notice of November
20 embodied the only concessions which the respondents would grant.
The union representatives testified that Holdsworth so stated, and
although denied by Jackson, I am satisfied that their testimony
accurately reflects what occurred because it is consistent with the
'IN. L. R. B. v George P. Pilling & Son Co., 119 F. (2d) 32 (C. C. A. 3), enf'g Matter
of George P. Pilling & Son Co. and Dental, Surgical and Allied Workers Local Industrial
Union No. 119, affiliated with the C. I. 0, 16 N. L R B. 650.
a" See cases cited in footnote 15.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
respondents' conduct in posting the notice and because in my opinion
the record fails to disclose that the respondents retracted, or mani-
fested any unwillingness to disavow, their prior unilateral deter-
mination.
There is further evidence showing that the respondents did not
deal in good faith with the Unions. In particular, L credit Arm-
strong's version of his conversation with Jackson on the evening of
November 16 to the effect that Jackson showed him a slip of paper
containing increased wage rates similar to those appearing in the
November 20 notice, stated that he and Holdsworth had decided
to pay the amounts stated thereon and that they would have to close
the plant if they were forced to pay more, further stated that he
would not have a "Los Angeles union" running his business for
him, and advised Armstrong that he objected to the employees
joining a "Los Angeles union," but that it would "be all right" for
them to organize "a local union in Whittier." In my opinion, Arm-
strong's testimony is consistent with Jackson's admitted preference
for dealing "with fellows who were thoroughly conversant with local
conditions" rather than with the "Los Angeles unions" here in-
volved; and with' the respondents' action in posting the November
20 notice, which, according to Jackson, embodied his and Holdsworth's
decision as to "what we could pay." Because of this and the incon-
sistencies and contradictions in Jackson's testimony generally, I
do not credit Jackson's version of this incident. For similar reasons
I believe Jennings' testimony that Jackson told him to tell the union
representatives "that they weren't needed out there, that we could
settle our own differences back there and to tell them to go back to
Los Angeles."
From the foregoing conduct of the respondents in posting the notice
of November 20 and the above-mentioned statements of Holdsworth
and Jackson, I am convinced that the respondents did not discuss
and negotiate with the Unions respecting their proposals with an
open and fair mind and with a sincere purpose to find a basis of
agreement, as required by the Act .411 I would find that by said acts
and statements the respondents refused to bargain collectively and
interfered with, restrained and coerced their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act. I would also
find that the strike which began on November 27 was caused, at least
4° See Globe Cotton Mills v. N. L. R. B. 103 F. ( 2d) 91 (C. C. A. 5), enf'g as modified
Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N L R. B.
461; N. L R. B. v. Griswold Mfg. Co., 106 F. (2d) 713 (C. C. A. 3), enf'g Matter of The
Griswold Manufacturing Company and Amalgamated Association of Iron, Steel and Tin
Workers o f North America, Lodge No. 1197, 6 N . L. R. B. 298; N. L. It. B. v. Highland
Park Manufacturing Company, 110 F. (2d) 632 (C. C. A. 4), enf'g Matter of Highland
Park Co. and Textile Workers Organizing Committee, 12 N. L. R. B. 1238.
SAM M . JACKSON ET AL. 221
in part, by the respondents' unfair labor practices. Although the
immediate cause of the strike was the failure of the Unions and the
respondents to agree to terms and conditions of employment, this
failure must be attributed, at least in part, to the respondents' uni-
lateral determination of wage rates and other important - terms of
employment which were the subject of negotiation. It is plain that
the normal effect of such unlawful interference would be to disrupt
bargaining relations. Certainly, there is no showing herein that the
respondents sought to, or did, dispel the effects of their unilateral
determination prior to the strike, nor is it otherwise shown that the
strike would have occurred absent the respondents' unlawful inter-
ference with the bargaining process.41
Finally, the record discloses that the respondents failed to reinstate
upon application 15 of the strikers and forestalled such application
by Jennings by previously refusing to consider his reinstatement.
The respondents, with respect to most, at least, of the strikers, had as
their only reason for refusing them reinstatement upon application
the fact that their positions were filled by strikebreakers. With
respect to a few, if the respondents had some other reason in addition,
still a substantial cause of the refusal was unwillingness to displace the
strikebreakers. Consequently; since the strike was caused by unfair
labor practices, the refusal to reinstate the strikers was discriminatory,
within the meaning of Section 8 (3) of the Act.42 Since the strike
was caused by unfair labor practices and since the respondents ille-
gally discriminated against the striking employees, I would order
their reinstatement with back pay in the amount they would normally
have earned from the date of their applications for reinstatement, or
in the case of Jennings, from the date the respondents manifested
their refusal to consider his reinstatement, to the date of offer of
reinstatement.
41 As stated by the United State Circuit Court of Appeals for the Second Circuit in
N. L. R. B. v. Remington Rand, Inc., 94 F (2d) 862, 872 (C. C. A. 2), it rested upon
the tortfeasor to disentangle the consequences for which it was chargeable from those
from which it was immune ." See also N. L . R. B. v. Stackpole Carbon Company, 105 F.
,(2d) 167, 176 (C. C. A. 3).
42 See Matter of Manville Jenckes Corporation and Woonsocket Rayon Company and
Independent Textile Union of America , 30 N L R B 382 at p 32, and cases therein
cited in footnotes 74 and 75.