Birmingham Publishing Co.

National Labor Relations Board - Board Decisions

Sep 18, 1957

118 N.L.R.B. 1380 (N.L.R.B. 1957)

1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Birmingham Publishing Company and Birmingham Printing
Pressmen & Assistants' Union No. 121 , International Printing
Pressmen & Assistants' Union of North America, AFL-CIO
Birmingham Publishing Company and Russell A. Johnson, Jr.,
Petitioner and International Printing Pressmen & Assistants'
Union of North America, Local Union No. 121, AFL-CIO.
Cases Nos. 10-CA-2682 and 10-RD-190.' September 18,1957
DECISION AND ORDER
On April 1, 1957, Trial Examiner John H. Eadie issued his Inter-
mediate Report in Case No. 10-CA-2682, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that the Respondent cease and desist therefrom
and take certain affirmative action as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs.
With regard to Case No. 10-RD-190, upon a petition duly filed
under Section 9 (c) of the National Labor Relations Act, a hearing
was held before Albert Schneider, hearing officer.
The Board' has reviewed the rulings made by the Trial Examiner
at the hearing in Case No. 10-CA-2682, and by the hearing officer
at the hearing in Case No. 10-RD-190, and finds that no prejudicial
error was committed by either. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions,
and the briefs in Case No. 10-CA-2682 and the entire records in
both of the foregoing cases, consolidated herein, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner,
with the following additions and modifications.
1. The Trial Examiner found, and we agree, that the Respondent,
in violation of Section 8 (a) (1) of the Act, initiated, fostered, and
assisted in the preparation of the petitions to decertify the Union,
solicited employees to sign the petitions to decertify the Union, and
promised benefits to employees if they would renounce the Union.
As set forth in the Intermediate Report, the Trial Examiner finds
that Wyatt and Henley, the Respondent's president and vice presi-
dent, respectively, engaged in certain conversations with employees
which strongly indicated animus toward the Union, and which could
' Case No. 10-RD-190 was heard on July 9, 1956 , 2 weeks prior to the date of the filing
of the original charge in Case No. 10-CA-2682. Because, as hereinafter set forth, the
findings in the unfair labor practice proceeding effectively dispose of the issues in the
representation case, the Board hereby orders that Cases Nos. 10-CA-2682 and 10-RD-190
be, and the same hereby are, consolidated.
2 Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated
its powers in connection with this case to a three -member panel [Chairman Leedom and
Members Murdock and Jenkins].
118 NLRB No. 182.
BIRMINGHAM PUBLISHING COMPANY 1381
have been interpreted by the employees as inducement by the Respond-
ent for support of the employees in the decertification of the Union.
However, the keystone of the Trial Examiner's 8 (a) (1) findings
is found in the activities of Supervisor Cleburne and Russell Johnson,
Jr., a journeyman pressman.
The Respondent contends that the Trial Examiner erred in relying
upon the activities of these individuals because (a) Cleburne, although
admittedly a supervisor, was required by the recently expired agree-
ment with the Union to be a union member, and he participated in
the decertification activities in his capacity as a union member and
not in his capacity as Respondent's representative; therefore, the
Respondent could not be charged with Cleburne's activities in this
respect; and (b) the record does not support.a finding that Johnson
was acting as the Respondent's agent in seeking the decertification
of the Union.
Even assuming, arguendo, that as a member of the Union Cleburne
could have drafted and signed a decertification petition under other
circumstances without involving the Respondent as a principal party
to such activity, in the circumstances here involved, such was not
the case. On the evening that the paper, which became the petition
in Case No. 10-RD-190 was drafted, Cleburne was in charge of the
Respondent's shop and it was he who either ordered or consented
that the presses of Johnson and Wilson be shut down so that Wilson
could type the petition for Johnson on a typewriter in the Respondent's
office. Although his motive in giving his consent and assistance may
have come partly from his personal desire to be rid of the Union,
Cleburne's exercise of power in authorizing the use of company time,
property, and material for this purpose arose from his position as
the Respondent's supervisor. When considered in the light of Cle-
burne's promise to Dover that Dover would have a job with the
Respondent as long as he wanted, if he withdrew from the Union,
we can but conclude that the foregoing activity of Cleburne is
chargeable to, and the responsibility of, the Respondent.
Moreover, we believe that the conduct of Johnson during the
entire period when the second and third decertification petitions
were initiated, drafted, circulated; and filed with the Board, not only
demonstrated the Respondent's interest in having the Union decerti-
fied, but clearly establishes that Johnson was the agent of the
Respondent in his endeavor.
While it is true that agency cannot be established, through the
statements of an alleged agent alone, a principal's consent with respect
to an agency relationship either by way of authorization or ratifica-
tion may be manifested by conduct and sometimes even by passive
acquiescence, as well as by words. And an individual's authority to
act a.s an agent in any given manner will be implied, therefore, when-
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever the conduct of the principal is such as to demonstrate that he
actually intended to confer such authority.' Although the record in
the case at bar contains no direct evidence that the Respondent author-
ized Johnson to engage in the decertification activities described in
the Intermediate Report, or to make promises of benefit to employees
to induce them to sign and support the decertification petition, we
believe that the Respondent's failure, in the circumstances herein, to
deny Johnson's authority to act on its behalf and the following activi-
ties engaged in by Johnson establish beyond doubt that Johnson was,
in fact, the Respondent's agent. In support of this conclusion we
cite the following :
(a) Several days prior to Howard Edwards' discharge Johnson
was present along with others who were supervisors in discussing the
possibility of Edwards' discharge.
(b) Johnson circulated, and requested employees to sign, the de-
certification petitions in the presence of Respondent's supervisors
Cleburne and Daum and, thereby, the Respondent had knowledge of
Johnson's activities.
(c) Johnson made promises of benefit to various employees, like-
wise in the presence of supervisors.
(d) Specifically, Johnson promised a raise in salary to James Ed-
wards, a brother of Howard Edwards, although several weeks prior
thereto James Edwards had been given notice that he was to be laid
off inasmuch as the Respondent's policy was that no more" than one
member of a family could work in the Respondent's shop. Thereafter,
following James Edwards' signing of the petition, not only was his
discharge revoked, but the promised increase in wages was put into
effect 4
(e) The Respondent's shop was so small that knowledge by the
Respondent of Johnson's activity in making promises and offering re-
wards in return for signatures on the decertification petitions and their
votes against the Union must be implied. The failure of the Respond-
ent to deny Johnson's authority to make such promises of reward and
the failure to order him to desist from this activity, in the light of all
of the foregoing establishes clearly that Johnson was the Respondent's
agent in these decertification activities 5
8 Fairbanks Transit System, Inc., 108 NLRB 958, 975.
4 The Respondent contends that the raise was given in accordance with the terms of the
expired contract with the Union which the Respondent had agreed to honor insofar as
working conditions were concerned. However, had this been so, James Edwards would
have received his increase more than a month before the date on which Henley informed
him that he would be laid off by reason of the Respondent's policy not to have more than
one in a family working in its shop. We conclude, that the terms of the agreement, at
least insofar as they applied to the working conditions of James Edwards, were not
honored, and that the raise was given to Edwards as a reward for his agreeing to sign
the petition.
5 See Fairbanks Transit System, supra.
BIRMINGHAM PUBLISHING COMPANY 1383
Accordingly , as hereinabove set forth , we find that the Respondent
did, indeed , initiate and foster the decertification petition in Case No.
10-RD-190, and that such conduct violated Section 8 (a) (1) of the
Act. Additionally , we believe that by reason thereof, the petition in
Case No. 10-RD-190, cannot be said to raise a question concerning
representation and, according to our practice in such cases , we shall
order the petition dismissed .'
2. We likewise agree with the Trial Examiner that the Respondent
discriminatorily discharged Howard Edwards in violation of Section
8 (a) (3) and ( 1) of the Act . As heretofore found, the Respondent,
through its supervisor , Cleburne, and its agent , Johnson, fostered the
decertification petition in Case No. 10-RD -190. It is in this context
that Edwards ' discharge must be considered.
Edwards, along with Key, had refused to sign the petition or
participate in any way in the decertification movement. Moreover,
as union steward , Edwards insisted upon processing grievances, col-
lecting dues, and engaging in other activity normally connected with
such stewardship . That this activity was closely observed and noted
by Respondent 's management is apparent . Several days before Ed-
wards was discharged a meeting was held in the Respondent 's office
which was attended by the Respondent's principal officers, by Super-
visor Cleburne , and by employee Wilson, who was questioned regard-
ing Edwards ' activities . At that meeting the possibility of Edwards'
discharge was discussed and the reason therefor was Edwards' activity
on behalf of the Union , heretofore described.
However, during the same period that Edwards ' activities were
causing the Respondent 's management to talk in terms of discharge,
Johnson was also neglecting his work and was conducting a campaign
of at least equal vigor-but for the decertification of the Union. Thus,
the two chief adherents of the divergent views in the shop were guilty
of the same offense against management , if, indeed, management con-
sidered the practice of leaving presses unattended , in and of itself to
be an offense . Nevertheless, for his activity on behalf of the Union,
Edwards was discharged while Johnson was allowed to continue with
impunity his union decertification campaign . By this process, the
Respondent eliminated the leader of the opposition to the Respondent-
sponsored -decertification movement. In view of the Respondent's
demonstrated attitude toward the Union in sponsoring the decertifica-
tion petition, we must consider the disparity of treatment between
Edwards and Johnson as discriminatory and we find that Edwards'
neglect of his machinery were merely a pretext seized upon by the
Respondent to justify Edwards' discharge.
6 See Bond Stores, Inc., 116 NLRB 1929.
1384, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In so finding, we are not unmindful of the testimony that Daum
was given a free hand as to the manner in which the letterpress de-
partment was to be operated. However, we do not believe that Daum's
part in Edwards' discharge was for the reasons advanced by him either
at the time of the discharge or at the hearing in this proceeding. The
characterization of Daum as a completely disinterested witness is,
we believe, inaccurate. It is established by the testimony of Key, a
credited witness, that Daum admitted that he did harbor a deep griev-
ance of long standing against the Union. We also note that he re-
quested Key and Dover to report to him regarding Edwards' activities.
At about the same time, Johnson told Bethune to report to him any
prounion acitivity by Edwards. In these circumstances, we can only
conclude that Daum's attitude toward Edwards was keyed to the Re-
spondent's antiunion campaign, and that Daum's refusal to cross the
union picket line and his retention of membership in the Union were
not necessarily inconsistent with this attitude and the activity it gen-
erated. Moreover, the necessity to retain membership in good stand-
ing in the Union cannot be overlooked as a vital factor to obtaining
ready employment as a foreman in the printing trades.
Additionally, assuming, arguendo, that, contrary to Edwards' testi-
mony, Daum did directly and unequivocally warn Edwards about leav-
ing his press unattended, we, nevertheless would not reverse the Trial
Examiner's findings. We have in mind the meeting at which Daum
complained to Jurtsen, the union representative, regarding Edwards'
alleged neglect of his assigned duties. This meeting occurred on June
30. At about the same date, the meeting was held in Respondent's office
at which Wilson was interrogated as to Edwards' activities. Several
days later Edwards was discharged. Therefore, at the time the alleged
warnings were given to Edwards, the Respondent's officials were dis-
cussing his discharge, if, indeed, they had not already decided upon
it. We also note that when Daum complained to Jurtsen about Ed-
wards and Key, Jurtsen expressed his doubts as to Daum's sincerity
and stated, in substance, that Daum had singled out Edwards and Key
for warning because of their prounion advocacy. Under these cir-
cumstances, we cannot consider the warnings, if any were given, as
other than a part of the Respondent's plan to rid itself of the leading
union adherent in the shop.
Accordingly, we find that the record as a whole fails to provide
a sound basis for the reversal of the Trial Examiner's credibility find-
ings with respect to the testimony of Edwards and Daum as to the
events culminating in Edwards' discharge. The Board does not over-
rule a Trial Examiner's resolutions as to credibility "except where the
clear preponderance of all the relevant evidence convinces us that the
Trial Examiner's resolution was incorrect." 7 This standard has not
7 Standard Dry Wall Products, Inc., 91 NLRB 544.
BIRMINGHAM PUBLISHING COMPANY 1385
been met. Although Edwards' failure to relate his complete criminal
record to the Respondent and the complete truth as to the reasons for
his discharge on his application for unemployment compensation might
have been less than candid, such behavior was thoroughly understand-
able under the circumstances, and, in our opinion, not so conclusive
as to necessitate rejection of his testimony. This is especially so in
view of the fact that the Trial Examiner had an opportunity personally
to observe his demeanor as a witness whereas the Board did not.
Moreover, as we have heretofore set forth, Daum was not the disin-
terested witness the Respondent contends he was. Inasmuch as the
record offers no other intrinsic evidence which can be relied upon as
a factor in deciding which of the two witnesses should be credited, we
will affirm the finding of the Trial Examiner crediting Edwards and
discrediting Daum.
3. The General Counsel excepts to the Trial Examiner's failure to
find that the strike which took place on July 10, 1956, following the
discharge of Howard Edwards for opposing the decertification pe-
titions, was caused by the Respondent's unfair labor practices. We
believe this exception to be well taken.
Submitted at the hearing was a labor newspaper published in the
city of Birmingham which carried an article in which the president
of the Union was quoted as stating that the reason for the strike at
the Respondent's plant was the discharge of the shop steward
(Howard Edwards) and the Respondent's sponsoring of the decerti-
fication petitions. Moreover, the Union's president, when on the
witness stand, stated that the strike vote was taken at a meeting held
on July 9, four days after Edwards' discharge, and that the reason
for the strike vote was the Respondent's discharge of Edwards and
the Respondent's assistance and participation in the activities sur-
rounding the decertification petitions. Also, Howard Edwards made
a speech at the meeting in which he stated that he had been discharged
and that it was just a matter of time when the Union would lose the
entire shop by reason of the Respondent's antiunion tactics.
Therefore, we conclude that although there may have been economic
reasons for calling the strike, the unfair labor practices of the Re-
spondent precipitated it. Accordingly, we find that those employees
who participated in the strike and who were replaced are entitled to
reinstatement upon proper demand.
4. The General Counsel further excepted to the Trial Examiner's
failure to (a) order the back pay of Howard Edwards to be com-
puted in accordance with the quarterly computation method set forth
in the F. W. Woolworth case,' and (b) order reinstatement of the
unfair labor practice strikers upon demand.
8 F. W. Woolworth Company, 90 NLRB 289.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because we have found, hereinabove, that Howard Edwards was
discriminatorily discharged, we shall order that the Respondent not
only reinstate him to his former or substantially equivalent position,
but we shall further order that the Respondent make whole Howard
Edwards for any loss of pay he may have suffered as a result of the
discrimination against him; such back pay to begin on July 5, 1956,
and continue to the date of Edwards' reinstatement, or the date on
which reinstatement is offered to him. Consistent with the policy of
the Board enunciated in F. W. Woolworth Company, supra, it will
be ordered that the loss of pay be computed on the basis of each sepa-
rate calendar quarter or portion thereof during the appropriate
back-pay period.
The quarterly periods shall begin with the first of July, October,
January, and April. Loss of pay shall be determined by deducting
from a sum equal to that which Edwards would normally have earned
for each quarter or portion thereof his net earnings, if any, in other
employment during that period.
Also, because we have determined that the strike which commenced
on July 10, 1956, was an unfair labor practice strike, we shall order
that the Respondent offer reinstatement to those employees who were
on strike and have been replaced, upon request for reinstatement
made to the Respondent.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Birmingham Publishing Com-
pany, Birmingham, Alabama, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Birmingham Printing Pressmen
& Assistants' Union No. 121, International Printing Pressmen &
Assistants' Union of North America, AFL-CIO, or any other labor
organization of its employees, by discriminating against its employ-
ees in regard to their hire or tenure of employment or by discrimi-
nating against them in any other manner in regard to any term or
condition of employment except to the extent permitted by Section
8 (a) (3) of the Act.
(b) In any manner initiating, fostering, or assisting in the prepara-
tion of petitions to decertify the aforementioned Union or any other
labor organization of its employees or making promises of benefits
to discourage membership in the said Union or any other labor or-
ganization of its employees.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
BIRMINGHAM PUBLISHING COMPANY 1387
form labor organizations , to join or assist Birmingham Printing
Pressmen & Assistants' Union No. 121, International Printing Press-
men & Assistants' Union of North America, AFL-CIO, or any other
labor organization, to bargain collectively through representatives
of their own choosing and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid and protection,
or to refrain from any or all of such activities except to the extent
that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Howard Edwards immediate and full reinstatement to
his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges and make him whole
for any loss of pay he may have suffered as a result of the discrimina-
tion against him in the manner set forth in the section of the Inter-
mediate Report entitled "The remedy" and in the manner heretofore
prescribed in the Decision herein.
(b) Upon application , offer immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, to all those employees
who went on strike on July 10 , 1956, who have not already been re-
instated to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges , dismissing,
if necessary, any persons hired by the Respondent on or after July 10,
1956, who were not in the Respondent's employ on that day.
(c) Make whole the employees specified in paragraph 2 (b), above,
for any loss of pay they may have suffered by reason of the Respond-
ent's refusal, if any, to reinstate them in the manner provided in para-
graph 2 (b), above , by the payment to each of them of a sum of money
equal to that which he normally would have earned as wages from a
date 5 days after the date on which he applies for reinstatement to
the date of the Respondent 's offer of reinstatement, less his net earn-
ings , if any, during said period.
(d) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards , personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(e) Post at its plant in Birmingham , Alabama , copies of the notice
attached hereto and marked "Appendix ." 9 Copies of said notice, to
S 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."
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof and be maintained by it for a period of 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 shall not be
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order as to what steps it
has taken to comply herewith.
AND IT Is FURTHER ORDERED that the petition filed in Case No.
10-RD-190 be, and the same hereby is, dismissed.
MEMBER JENKINS, concurring in part and dissenting in part :
I agree with my colleagues that the Respondent initiated, fostered,
and assisted in the distribution of the decertification petitions in viola-
tion of Section 8 (a) (1) of the Act. Furthermore, I concur in their
finding that the Respondent is responsible for the conduct of its
supervisors and of its agent, Johnson, in making promises of benefit
to induce employees to sign the said petitions. However, I cannot
agree with them that, upon all of the evidence in the record, the
Respondent discriminatorily discharged Howard Edwards.
The Respondent contends that Edwards was discharged for cause
in that he continued to leave unattended the high-speed presses de-
spite the warning of Daum, his foreman, to discontinue this practice.
What apparently persuaded the Trial Examiner, and my colleagues,
to reject the Respondent's asserted reason for Edwards' discharge, is
their belief that there was a marked disparity of treatment between
Edwards, on the one hand, and others in the Respondent's printing
plant, on the other hand, all of whom frequently or habitually left
unattended their high-speed equipment. To arrive at this conclusion,
however, both the Trial Examiner and my colleagues have disregarded
uncontroverted testimony not only of the Respondent's witnesses, but
also of credited witnesses called by the General Counsel.
Established, without contradiction, is the fact that when Daum was
hired as supervisor of the Respondent's letterpress department a short
time before the occurrences herein, he was given a free hand as to the
manner in which he was to conduct his department. Therefore, the
fact that employees of other departments could, with impunity, leave
their presses and equipment unattended has no relation to the fact
that employees working under Daum's direction could not do so. And,
equally without significance is the testimony as to the common prac-
tice in the letterpress department before Daum was hired as super-
visor thereof. Accordingly, it is my opinion that no inference of pre-
I
BIRMINGHAM PUBLISHING COMPANY 1389
text or discrimination can properly be drawn from the dissimilarity
of the treatment accorded Edwards and that accorded employees
outside of the department in which Edwards was employed.
The only remaining substantial evidence in the record which could
possibly lend support to a finding of discrimination is Edwards' own
testimony regarding the events leading up to his discharge. Most
significant of this testimony is Edwards' statement that Daum dis-
charged him, when, as shop steward, Edwards protested Key's being
placed on probation for leaving his machine unattended. Edwards
testified that Daum then and there told him that he was to be dis-
charged for spoiling a job. Furthermore, he testified that he com-
plained to Daum that Daum had never warned him about leaving
his machine unattended.
On the other hand, Daum testified that he discharged Edwards
because the latter refused to abide by Daum's earlier warnings not
to leave his machine and because Edwards had, on the day prior to the
discharge, spoiled a printing job, which spoilage was caused by
Edwards leaving his press unattended. Edwards admitted that at
the time of his discharge these reasons for discharge were presented
to him. Daum further testified that he decided to discharge Edwards
and caused the discharge notice to be prepared before Edwards pro-
tested to Daum regarding Key, and that, therefore, the discharge was
not related to the protest.
I do not quarrel with my colleagues' statement of general principle
regarding the Board's reluctance to disturb credibility findings. But
here, in my opinion, is presented one of those instances where the
preponderance of the evidence does not support the Trial Examiner's
credibility disposition.1° Daum's version of the predischarge events
is perfectly plausible and reasonable. According to his testimony he
took what he considered necessary steps to maintain production in
his department. Accordingly, his version of the events is as believ-
able as the credited version of Edwards. However, the Trial Ex-
aminer credits Edwards' version as against Daum's, solely on the basis
of personal observation at the hearing, disregarding other very im-
portant factors which, in my opinion, constitute overwhelming evi-
dence that Daum, and not Edwards, should have been credited.
I am not adverting to the fact that Edwards had a criminal record,
nor to the fact that when he applied to the State Unemployment Board
he did not advance as the reason for his termination of employment
an alleged discharge for union activity nor the fact that his explana-
tion thereof does not strike me as credible. I would rather rely, in
discrediting Edwards, on the fact that Edwards testified that at the
time of his discharge he complained to Daum that he had never been
warned about leaving his machine. Daum flatly contradicted this and
11 See Custom Underwear Manufacturing Company, 108 NLRB 117, 119-120.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he is inferentially supported in his contradiction by the testimony
of both Key and Jurtsen , who were witnesses for the General Counsel.
Jurtsen, the Union's business agent, testified that when he met with.
Daum, he discussed this question with him. Jurtsen, who also was
credited by the Trial Examiner, stated that sometime in June, prior
to Edwards ' discharge , Daum told him that he was having difficulties
with Key and Edwards regarding their practice of leaving their
presses unattended . Jurtsen admitted that he thereupon informed
Daum if what Daum was saying was true, he would consider the
matter; that all he was seeking was the truth and that the Union
had a responsibility that the shop should be run properly.
Nowhere in the record does Jurtsen deny that he did not look into
the matter nor did he expressly deny that he spoke to Key and Ed-
wards regarding Daum's accusation . Yet he testified that at the
time Daum made the accusations he, Jurtsen , had expressed his sus-
picions that the reason why Daum had singled out Key and Edwards
for warning was because of their refusal to support the decertification
petitions . It stretches credulity to the breaking point to believe that
under these circumstances Jurtsen did not thereafter talk to Key
and Edwards regarding the reasons for Daum's complaint that they
left their presses unattended . Furthermore , Key, whom the Trial
Examiner credited in all respects , testified that he had been warned
by Daum not to leave his press unattended and that because of the
warning he , Key, had thereafter refrained from doing so. The only
reasonable inference that can be drawn from the foregoing is that
inasmuch as Daum spoke to both Jurtsen and Key, as they both ad-
mitted, so must Daum, as he testified , have spoken to Edwards.
Edwards, as a witness , gave equivocal testimony as to whether he
had ever received a "warning" from Daum about leaving his machine
unattended . Nowhere does he specifically deny that Daum spoke to
him about the matter. His testimony was to the effect that what was
said to him by Daum was not a "warning," but he made no attempt
to clarify the issue of what was said. The fair import of his testimony
is that something was said by Daum regarding the leaving of the
machines but that Edwards did not consider it to be a warning. As
against the equivocal statement of Edwards and his failure to state
the substance of what was said to him, we have the categorical state-
ment of Daum that he did in fact warn Edwards.
But over and above all of the foregoing , Daum had been a member
in good standing of the Union for many years prior to his being hired
by the Respondent , and continued as a member in good standing both
during his brief tenure as a supervisor in the Respondent 's letterpress
department , and at all times since leaving the Respondent 's employ.
Furthermore , his loyalty to the Union was clearly demonstrated
by his refusing to cross the picket line which was established on
BIRMINGHAM PUBLISHING COMPANY 1391
July 10 and by his leaving the Respondent's employ in lieu of crossing
that picket line. Under these circumstances antiunion motivation
cannot be ascribed to him.li Finally, at the time of the hearing, Daum
was no longer working in the Respondent's plant, and could gain or
lose nothing by his testimony. He was the one person who participated
in the discharge and the events leading thereto, who, at the time of
the hearing, was truly disinterested in the outcome of this proceeding.
I conclude, therefore, that under the foregoing circumstances Daum
is per se a far more credible witness than Edwards.
By reason of all the foregoing, I would reverse the Trial Examiner's
finding as to credibility of Edwards. I therefore conclude that Daum
did warn Edwards and did discharge him because Edwards disobeyed
his orders, continued to leave his press unattended, and thereby caused
the spoilage of a printing job.
Moreover, because Edwards' discharge is found by my colleagues
to be the immediate cause of the strike which began on July 10, I
would find that the strike was economic in nature and would not
order reinstatement for the displaced strikers.
Accordingly, I would dismiss the complaint insofar as it alleges
that the Respondent discriminatorily discharged Howard Edwards
or that the Respondent's unfair labor practices caused the July 10
strike.
n It should be noted that the union fine imposed upon Daum immediately after he caused
Edwards' discharge was quickly remitted. Surely had the Union believed that Daum had
participated in discriminatory action against Edwards, the Union's shop steward, the
decision to fine Daum would not have been reversed.
APPENDIX
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, as amended; we hereby notify our employees that :
WE WILL NOT discourage membership in Birmingham Printing
Pressmen & Assistants' Union No. 121, International Printing
Pressmen & Assistants' Union of North America, AFL-CIO, or
any other labor organization of our employees by discriminating
in any manner in regard to hire, tenure or term, or condition of
employment except to the extent permitted by Section 8 (a) (3).
WWWE WILL NOT in any manner initiate, foster, or assist in the
preparation of petitions to decertify the said Birmingham Print-
ing Pressmen & Assistants' Union No. 121 or any other labor
organization of our employees or make promises of benefits to
our employees to discourage membership in said Union or any
other labor organization of our employees.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-organi-
zation, to form labor organizations, to join or assist the above-
named labor organization or any other labor organization of our
employees, 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 and pro-
tection, or to refrain from any and all of such activities except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
WE WILL offer to Howard Edwards immediate and full rein-
statement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges and
make him whole for any loss of earnings as a result of discrimi-
nation against him.
WE WILL, upon application, offer immediate and full reinstate-
ment to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, to
all our employees who went on strike on July 10, 1956, who have
not already been reinstated to their former or substantially
equivalent positions, dismissing, if necessary, any persons hired
by us on or after July 10, 1956, who were not in our employ on
that date and we will make whole any of said employees for any
loss of pay they may have suffered by reason of our refusal, if
any, to reinstate them in the manner heretofore set forth.
All our employees are free to become or remain or to refrain from
becoming or remaining members of the Birmingham Printing Press-
men & Assistants' Union No. 121, International Printing Pressmen &
Assistants' Union of North America, AFL-CIO, or any other labor
organization except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
BIRMINGHAM PUBLISHING COMPANY,
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
STATEMENT OF THE CASE
Upon charges duly filed by Birmingham Printing - Pressmen & Assistants' Union
No. 121, International Printing Pressmen & Assistants ' Union of North America,
AFL-CIO, herein called the Union , the General Counsel of the National Labor
BIRMINGHAM PUBLISHING COMPANY 1393
Relations Board, by the Regional Director for the Tenth Region (Atlanta, Georgia),
issued an amended complaint dated November 20, 1956, against Birmingham Pub-
lishing Company, herein called the Respondent, alleging that the Respondent had
engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein
called the Act.
The Respondent filed an answer to the amended complaint on about November 26,
1956, in which it admitted the jurisdictional allegations of the complaint, but denied
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Birmingham, Alabama, from December
18 to 21, 1956, inclusive, before the duly designated Trial Examiner. At the close
of the General Counsel's case and at the close of the whole case, the Respondent
moved to dismiss certain paragraphs of the amended complaint. Ruling was re-
served. The motions to dismiss are disposed of as hereinafter indicated. The
General Counsel argued orally on the record at the conclusion of the hearing. After
the close of the hearing, the Respondent and the Union filed briefs with the Trial
Examiner.
Based upon the record as a whole, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Birmingham Publishing Company is an Alabama corporation, with its sole
place of business located at Birmingham, Alabama. Its principal business is
commercial job printing and offset printing.
During the period of 12 months preceding the date of the hearing herein, the
Respondent did not ship into interstate commerce directly goods having a value of
$50,000, but did ship goods valued at in excess of $130,000 to companies having
annual direct out-of-State shipments in interstate commerce valued' at in excess of
$50,000.
II. THE LABOR ORGANIZATION INVOLVED
Birmingham Printing Pressmen & Assistants' Union No. 121, International Print-
ing Pressmen & Assistants' Union of North America, AFL-CIO, is a labor organi-
zation which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
The parties stipulated to the following facts:
"The company is a combination plant engaged in the commercial printing
business. By combination plant is meant that the company has a composing
room, letterpress and offset pressroom, bindery and offset platemaking division.
It manufactures printed products by both the letterpress and lithographing
process.
"Description of physical facilities: The plant is located at 130 South 19th
Street in the City of Birmingham , Alabama. It occupies the northwest corner of
19th Street and Second Avenue, South, approximately 100 x 100 feet in area.
The company has three basic departments- the composing room, pressroom
and bindery. Since the purchase of offset equipment, the offset platemaking
department and offset press department are located and the functions are fitted
into the pressroom. The composing room functions consist of machine com-
position and makeup of type, in which there are approximately five employes.
These employes have been represented by the International Typographical
Union. In the pressroom there are approximately nine employes. They have
been represented by the Birmingham Printing Pressmens and Assistants' Union,
Local No. 121. In the bindery where the finishing functions , such as cutting,
folding and trimming are performed, there are approximately five employes,
and they have been represented by the International Brotherhood of Book-
binders. The production departments are under the direction of a superin-
tendent, C. L. Horne. The foreman of the composing room is Mr. Mellendore.
The letterpress portion of the pressroom is under the supervision of George
Daum. The offset portion of the pressroom is under the direction of Mr. Harold
Cleburne. The bindery is presently under an acting foreman, whose name is
Lamar Reid. It will be noted that in supervision the breakdown is for four de-
partments instead of three. It was stipulated between the parties that Mr. Horne,
450553-58-vol. 118-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Daum and Harold Cleburne are supervisors within the meaning of the
Act.
"History of Bargaining: In the City of Birmingham there was an organiza-
tion, known as the Employing Commercial Printers Association, which organ-
ization was made up of approximately thirteen companies. The Employing
Commercial Printers Association was a relatively loosely organized association,
which was unincorporated and had no constitution or by-laws. There were
no dues or requirements of any kind, for eligibility to belong to the association
as long as an employer is a printing company. Printing employers could
associate with the other members of the association, or at any given time
they could withdraw if they wished. There was nothing in writing by which
one could say `I am a member of the association and I will abide by the
terms and conditions of the contract negotiated between the association and
the respective union.' There is only the fact that members have acquiesced
in agreements negotiated by the Employing Commercial Printers Association,
and there were some members who dissented. This operation has been going
on over a period of the last ten years. Certain companies have withdrawn
from the association during this period; namely, the Lowry Premier Corporation,
Cather Brothers' Publishing Company and Quality Press.
"There has never been a certification of the Birmingham Printing Pressmen
and Assistants' Union, Local No. 121 by the National Labor Relations Board.
"For a considerable period prior to May 14, 1955 the Employing Commercial
Printers' Association negotiated agreements with the International Typo-
graphical Union, the Printing Pressmen and Assistants' Union, and the Inter-
national Brotherhood of Bookbinders. A committee would meet with the unions
for the purpose of collective bargaining. The committee would then report
its decisions and progress of the discussions to the association, and all of the
members of the association would then discuss it and vote on the proposals
and conditions of the contract, at which time it was the prerogative of any
member to acquiesce in the group findings or dissent therefrom. Over this
period several companies have dissented from the proposals and withdrawn
from the association. To make the negotiations effective, the committee find-
ings were subject to ratification and approval by the plants adopting the negotia-
tions. During the year 1955, the employer in this case was a member of this
association, served on the negotiating committee, and did adopt the contract
negotiated by that committee. This contract expired on May 15, 1956. The
employer, on May 15, 1955, however, did not accept the contract immediately,
but rather adopted the contract some four or five days after the association had
ratified the agreement.
"Some time between April 16, 1956 and May 9, 1956, the Employing Com-
mercial Printer's Association of Birmingham went out of existence. In its
place an association was formed for collective bargaining and other purposes,
known as the Printing Industry of Birmingham, which is composed of all
member firms who had formerly dealt with Local 121 through the Employing
Commercial Printer's Association, with the exception of the employer here
involved. In addition, such Printing Industry of Birmingham admits to mem-
bership employers other than those who belonged to the Employing Commercial
Printer's Association and other than those who have collective bargaining deal-
ings with the printing trade unions. Mr. C. E. Travis, who was the former
chairman of the Employing Commercial Printers' Association, is now the
president of the Printing Industry of Birmingham. The negotiating committee
of the Printing Industry of Birmingham negotiates with the unions in much
the same way that the negotiating committee of Employing Commercial
Printer's Association negotiated with the unions. The employer in this case
is not a member of the Printing Industry of Birmingham, nor has it ever
participated in the negotiations of the Printing Industry of Birmingham.
"The Printing Industry of Birmingham did, on May 9, 1956, consummate
an agreement with the union dated May 16, 1956, under its name-the Printing
Industry of Birmingham, and this contract is now in effect in the participating
plants to the negotiations who are members of the Printing Industry of
Birmingham.
"The last contract negotiated by the Employing Commercial Printer's Asso-
ciation expired May 15, 1956. The first contract negotiated by the Printing
Industry of Birmingham became effective May 16, 1956.
"In the early part of March, 1956, the employer, through its president,
discussed with the chairman of the Employing Commercial Printer's Association
the question of the employer withdrawing from the association for purposes
of collective bargaining.
BIRMINGHAM PUBLISHING COMPANY 1395
"On March 20, 1956, a letter the employer sent to Mr. Travis, chairman of
the Employing Commercial Printer's Association, notifying him that the em-
ployer had not been informed of any demands of the several unions; that the
employer did not wish to be represented by the association in the forthcoming
contract negotiations; and that none of its officers would be assigned to a negotiat-
ing committee for the current negotiations. The company understood from Mr.
Travis that he had stated publicly in full meeting of the association that the
Birmingham Publishing Co. was not a party to the 1956 joint negotiations.
"On or about May 16, 1956, the employer addressed a letter to the local
union, in which it was stated that the employer had notified the Employing
Commercial Printer's Association that the employer was no longer a party to
the joint negotiations, and invited the union to meet with the employer's repre-
sentatives for the purpose of discussing a proposal and bargaining on terms and
conditions of employment of its employes. Subsequent to notifying the associa-
tion of its withdrawal from the association for purposes of collective bargaining,
the employer did not in any manner participate in negotiations of either the
Employing Commercial Printer's Association of Birmingham or the Printing
Industry of Birmingham. The company did not receive knowledge of any pro-
posal made by the unions to the Employing Commercial Printer's Association or
the Printing Industry of Birmingham, nor did it participate in any meetings in
which discussions of these proposals took place. The company made no pro-
posals and received no proposals for an agreement in 1956. After having received
the letter from the employer, dated May 16, 1956, Mr. Roy A. Fog, member of
the unions' negotiating committee, asked the employer for a meeting to negotiate
the contract, and a meeting date was agreed to for the following week on ap-
proximately May 21 or 22."
The contract between the Respondent and the Union required that foremen be
members of the Union. Harold Cleburne was employed by the Respondent during
August 1955. He was foreman over the "offset department." In accordance with
the above requirement, he applied for membership in the Union in August, and be-
came a member about 60 days later. Cleburne was dissatisfied with the Union because
it required him "to take lessons" for 3 years to qualify as a journeyman pressman.
Employees Russell Johnson, Jr., Bohdan Straszewicz, Leroy Wilson, and Eugene
Crutcher applied for membership in the Union. At a meeting of the Union held
during March 1956, Johnson, Straszewicz, and Wilson were accepted as members,
but Crutcher was rejected. Straszewicz was employed as a journeyman in "plate-
making, layout and camera"; and Crutcher worked as his apprentice or assistant.
Employee Howard Edwards was the Union's "chapel chairman" for the Respondent's
plant. A few days after the union meeting Edwards asked Straszewicz to discharge
Crutcher since he was not eligible for union membership. Straszewicz replied that
he did not have authority to hire or fire; and that Edwards should present his demand
either to John Henley or to James Wyatt, president and vice president of Respondent,
respectively. Straszewicz reported this conversation to Cleburne.
Cleburne, Straszewicz, Johnson, and Crutcher conferred together about ways and
means of keeping Crutcher on the job. They determined to end their connections
with the Union and, at Crutcher's suggestion, they investigated the possibility of join-
ing the Amalgamated Lithographers' Union, herein called the Amalgamated. As will
be related hereinafter, these four employees initiated the petitions to the Board for
decertification of the Union.
About June 22, 1956, Robert Jurtsen, a special representative of the Union, called
at the Respondent's plant and had a meeting with Henley. Jurtsen told Henley that
he had heard a rumor about a decertification petition and asked for information on
the subject. Henley replied that "on the advice of counsel" he could not discuss the
matter.
About June 30, at Jurtsen's request, George Daum, Respondent's pressroom fore-
man, met with him. Daum was a member of the Union and had been in the Re-
spondent's employ since about May 6, 1956. Jurtsen questioned Daum concerning
any trouble at the plant which might have brought about the petition for decertifica-
tion, and asked him if he was a participant or if he had been ordered by Henley to be
a participant. Daum replied, "I am not a party to it," and stated that he did not
know very much about the causes for the petition since he was a new employee. He
complained to Jurtsen that he had a problem with Howard Edwards and John Key
who were "continually leaving" their machines. During the conversation Jurtsen
stated that the question of a strike at the plant depended on "what position" the
Respondent took at a scheduled representation hearing. He told Daum that he would
be expected to "honour our picket line." Daum replied, "All right."
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Edwards was discharged by the Respondent on July 5, 1956, allegedly
for cause.
The decertification petition in Case No. 10-RD-190 was filed with the Board on
June 4, 1956. A hearing in this case was held on July 9, 1956. In this proceeding the
Union contended that "the associationwide unit , rather than the plant unit, is the
appropriate unit for bargaining." The position of the Respondent with respect to
the unit issue was, in substance, that the ( single ) unit set forth in the petition was
appropriate since the Respondent's withdrawal from association bargaining was "both
timely and effective" and since it never was a member of the Printing Industry of
Birmingham.
At a union meeting held on the night of July 9, Jurtsen stated that in his opinion
the Respondent had shown itself "to be hostile" at the decertification hearing.
Howard Edwards made a speech at the meeting. He stated that he had been
discharged and that "It looks like we are going to lose that shop and it is just a
matter of time before John [Key] goes." The members then voted to strike the
Respondent's plant.
Commencing on July 10, the Union picketed the Respondent's plant. Daum did
not cross the picket line, and immediately quit his job.
The "Voice of Labor," a Birmingham labor newspaper, published a statement
of Robert Abney, president of the Union, on July 27, 1956. In substance, Abney
stated that the Union struck the Respondent's plant because of the Respondent's
refusal to sign the 1956 contract and because of the Respondent's unfair
labor practices.
B. The petitions; the status of Russell Johnson , Jr.
As related above, when Crutcher was rejected by the Union, Foreman Cleburne,
Straszewicz, and Johnson discussed the possibility of changing their bargaining
representative. Crutcher, Straszewicz, and Johnson asked Cleburne to find out
how this could be accomplished. Cleburne then went to Wyatt and explained the
situation to him. Wyatt told Cleburne, "All right, I don't know what it takes but
I will see if I can find out." Some few days later, Cleburne was called to Wyatt's
office. Wyatt advised him that it would be necessary to petition the Board for
decertification of the Union, and gave him a slip of paper which contained the
wording to be used in the petition. At Cleburne's request, Crutcher typed the peti-
tion. Cleburne, Crutcher, Straszewicz, and Johnson signed the petition; and Cle-
burne mailed it to the Board's Atlanta Office.
Before the employees signed the above petition, they requested a conference
with Wyatt. Wyatt and Henley met with them. The employees wanted to know
if their jobs would be in jeopardy if they filed the petition. Henley and Wyatt
told them, in substance, that "the company's position was one of genuine neutrality";
that the employees were free to do whatever they chose with respect to the Union;
that their jobs would not be affected no matter what they decided to do; that the
Company would support them "100 percent"; and that if amajority of the em-
ployees in their department decided to discontinue their membership in the Union,
the Company would not sign the. 1956 contract.
About 10 days after the petition had been filed, Cleburne met with a representa-
tive of the Board who told him that the petition was not proper since it was not on
a regular form, and that he could not be connected with such a petition since he
was a foreman. Cleburne reported this information to Wyatt and to the employees.
Straszewicz, Johnson, and Crutcher then decided that Johnson should prepare and
file the petition.
Johnson met with the Board's representative who helped him fill out the necessary
form. This petition was filed on May 11, 1956.1 The Regional Director for the
Board dismissed this petition because the unit was inappropriate.
Johnson worked as a pressman on the night shift of the offset department. Dur-
ing May and June 1956, Leroy Wilson at times worked as his apprentice. When
the petition which had been filed on May 11 was dismissed, Johnson obtained the
necessary forms for a new petition. One night during the latter part of May 1956,
when Cleburne was working late at the plant, Johnson went to him and asked him
for carbon paper. After he had obtained some used carbon paper, at Johnson's
request Cleburne placed the original form of the petition and some copies in the
typewriter. Cleburne suggested to Johnson that he get Wilson to do the typing.
Johnson went to Wilson and asked him if he could type. When Wilson replied that
1 A copy of the petition was received in evidence. It shows the date of Sling as May 11,
1955, obviously an error.
BIRMINGHAM PUBLISHING COMPANY 1397
he could, Johnson told him to "shut down the press" and go to the office. When
Wilson got to the office, Cleburne was typing on the petition. Wilson then took
Cleburne's place at the typewriter. Cleburne told Wilson what to type on the petition?
Johnson solicited some of the employees to sign this petition at the plant during
working hours. It was signed by Straszewicz, Crutcher, James Bethune, Wilson,
James Edwards, Johnson, and Cecil Dover.
James Edwards, a brother of Howard Edwards, was hired as an apprentice
pressman by the Respondent on November 1, 1955. He was Cleburne's assistant,
but at times worked on the night shift with Johnson. During the latter part of
May 1956, he was called to Henley's office. Henley told him that it was not the
general practice of the Respondent to employ a person who was related to another
employee; and that since he was a brother of Howard Edwards, he would have
notice of 2 weeks within which to find another job. About 3 or 4 days later Edwards
had a conversation with Johnson. Johnson told him that his signature on the
decertification petition was "needed"; that Henley wanted the Union out of the
plant because there were certain things "that he can't do under the contract that
he would like to do"; that Henley was willing to give the employees certain benefits
if they would sign the petition, including "a 25-year pension plan, paid vacation,
sick leave, and paid insurance premiums"; and that "you will have a job as long as
you like. . . ." Edwards said he would "think it over." At a later date, Edwards
had another conversation with Johnson. Johnson told him that if he would sign
the petition, Henley would give him his raise in pay, retroactively to the date it was
due.3 Edwards and Wilson signed the petition in the presence of Cleburne and
Johnson. Edwards received a raise about July 1; but it was not made retroactive.
Shortly thereafter Henley told him, "we have decided to let you stay on here and
work, continue to work in this plant. . You are doing good work and we
are glad you are going to get to stay with us." .
Cecil Dover, a deaf-and-dumb person, was employed by the Respondent as an
apprentice. He was assigned to a press which George Daum, a working foreman,
operated. At sometime during June, Johnson requested Dover to sign the petition.
The solicitation took place in Wyatt's office. Johnson told him that he would be
made a journeyman pressman, and receive paid holidays, sick leave with pay, and
"25-year pension retirement." About June 12 Cleburne told Dover that he would
have a job as long as he wanted it if he withdrew from the Union.
Johnson told Wilson that if the Union were ousted from the plant, the employees
would receive "vacation, insurance, and more pay"; and that "a man would be paid
what the company thought it was worth rather than by a scale but Mr. Henley
couldn't sign a contract (at that time) . . . between the employees and the com-
pany, because it would get him in trouble."
Bethune was hired by the Respondent about June 1, 1956. He was recommended
to the Respondent by Johnson. He at times worked on the night shift running an
"offset Davidson."
About a week after Bethune was hired, Johnson explained to him the reason
for the decertification petition. Bethune posed the question of job security if the
employees were not accepted as members by the Amalgamated. Johnson replied
that Henley had a "five-year contract . in his desk drawer" which provided for
a wage scale, sick leave, six holidays, and other benefits; that Henley could not sign
the contract at that time because of the trouble in the plant; and that the contract
would be signed only in the event that the employees renounced the Union and did
not join the Amalgamated. The following day Bethune questioned Cleburne about
the petition. Cleburne told him that he could not talk about it, and referred him
to Johnson. Bethune then told Cleburne that he had talked to Johnson, but that
Johnson had not been able to convince him. When Johnson came to work, Bethune
again questioned him concerning the petition. Johnson said that since he could
not explain it to Bethune's satisfaction, he would "fix it" so that he could get the
necessary answers from Wyatt. Concerning his meeting with Wyatt, Bethune testi-
fied credibly to the following:
Later on approximately 4 or 5 Mr. Claiborne told me Mr. Wyatt wanted
to see me. We went into Mr. Wyatt's office and Mr. Claiborne stayed with
us. Mr. Wyatt told me he could understand I was mixed up, I couldn't under-
stand all what was going on.
2 The above petition, dated June 4, 1956, was signed by Johnson. It is docketed as
Case No. 10-RD-190.
8 Under the terms of the 1955 contract, an apprentice received a wage increase after
being employed for 6 months.
,1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He related several instances where he had contacted the union for competent
help and couldn't supply them, and they had to go out of town to get people
to man the presses.
One boy had been turned down in his application for membership and that
is what brought all this on. I can understand that. He asked me if I was willing
to work in a union shop and I told him: "Yes, sir."
He asked me if I was willing to work in a non-union shop. I told him: "Yes,
sir." He asked me if I was willing to work in an open shop. I told him:
"Yes, sir." He told me at that time that he believed that a man, a good press-
man, could make his own deal with his employer and do better than by being
in the union.
That was his personal opinion, that he would rather try to make his own
deal with his merits and ability than to have some big, bad man from the
union coming in and try to scare Mr. Henley into trying to give you something.
Sometime during June 1956, a meeting was held in Henley's office. It was
attended by Henley, Wyatt, Cleburne, Johnson, Straszewicz, Crutcher, Wilson, and
Dover. In substance, Henley reviewed the action taken by the Board on the
petitions. He stated that the Respondent would not recognize the Union since it
appeared that it did not represent a majority, but that the terms and conditions
of employment would remain the same as they were under the expired contract.
During the meeting the question was brought up as to why other plants in Birming-
ham had not tried to have the Union decertified. Henley replied that the reason
other companies had not tried it was that "they just didn't have the guts."
The complaint alleges that Johnson was an agent of the Respondent. At the
hearing the General Counsel also claimed that he was a supervisory employee.
Considerable evidence was adduced in this connection. In brief, Johnson was paid
at the rate of a journeyman pressman with an added premium for work on the
night shift, as specified in the 1955 contract. He had an assistant or apprentice on
his press. Another press was operated on this shift by Bethune. Johnson assigned
and inspected his work. At one time when Johnson had a disagreement with Bethune,
he told Bethune that he could get him discharged. As foreman over the offset
department, Cleburne was in charge of the night shift, but he appeared at the plant
only about I night out of every 2 weeks. Cleburne testified that Johnson was in
charge during his absence.
In view of the fact that Johnson was in charge of the shift during Cleburne's
absence, it appears that his supervisory authority exceeded that normally associated
with the journeyman-apprentice relationship. However, I do not believe that the
evidence is sufficient to establish that Johnson was a supervisory employee within
the meaning of the Act.
From the evidence it is clear that the employees' dissatisfaction with the Union
originally was caused by its rejection of Crutcher. They decided to investigate the
possibility of having the Amalgamated as their bargaining representative; and
requested Foreman Cleburne, a fellow member of the Union, to find out how this
could be accomplished. Wyatt suggested to Cleburne that a decertification petition
be presented to the Board. When it was found that Cleburne was not qualified to
sponsor the petition, the employees chose Johnson to represent them. Up to this
point it does not appear that Johnson was acting as the Respondent's agent.
In its first meeting with the employees the Respondent paid lip service to neu-
trality in the matter. However, Henley and Wyatt assured them that their jobs
would not be in danger if they filed the petition and that the Respondent would
be in back of them "100 percent" in whatever they decided to do. Nothing of
moment occurred thereafter until the Regional Director dismissed the second
petition because of the inappropriateness of the unit. Cleburne no longer was
able to detach himself. He assisted in the preparation of the third petition, and was
present when Johnson solicited employees to sign it during their working hours.
Johnson was permitted to use the Respondent's office and equipment. Since the
unit was enlarged, it apparently was decided that more signatures were necessary
on the petition. Hence the pressure on the apprentices, Wilson, Edwards, Dover,
and Bethune. In the eyes of these employees, no doubt, Johnson was closely asso-
ciated with management, since he had more supervisory authority than the ordinary
journeyman, being in charge of the night shift during Cleburne's absence. Further,
Johnson frequently conferred with Henley at night in the pressroom.
When Johnson solicited signatures for the third petition, the original plan of
joining the Amalgamated was abandoned. It does not appear that either Straszewicz
or Crutcher were consulted in this connection. Johnson told the above apprentices
that Henley had a 5-year contract that he was ready to sign with the employees
when the Union was decertified and if they did not join the Amalgamated, and
specified some of the benefits provided for in the contract. When Johnson was
BIRMINGHAM PUBLISHING COMPANY 1399
unable to convince Edwards and Bethune, the Respondent completely forgot its
alleged neutrality. The conversations between Edwards, Johnson, and Henley and
between Bethune, Johnson, Cleburne, and Wyatt have been related and found above.
In my opinion, these two incidents alone confirm that the Respondent used Johnson
to make known to the employees its policies and desires. For the above reasons I
find that the Respondent was responsible for Johnson's statements and conduct.
Accordingly, it is found that the Respondent initiated, fostered, and assisted in
the preparation of the petitions to decertify the Union; solicited employees to sign
said petitions; and promised benefits to its employees if they would renounce the
Union. It is found that such conduct was violative of Section 8 (a) (1) of the Act.
C. The discharge of Howard Edwards
Howard Edwards was hired as an apprentice pressman during 1950. After
about 4 years he was advanced to journeyman. He was hired by Foreman Roy
Farr. Before Farr hired him, Edwards had told him that while he was in the
Marine Corps he got into some trouble over an automobile for which he had served
time and was on parole.4 Farr also talked to Edwards' parole officer. Farr
reported this information to the Respondent's officials at the time that he hired
Edwards.
Employee John Key was foreman of the letterpress department from November
1955 until about May 6, 1956. Before becoming a foreman, he was chapel chair-
man of the Union. Edwards succeeded him as chapel chairman. Edwards also
became a member of the Union's "Negotiating Committee" during about February
1956.
George Daum was hired and replaced Key as foreman about May 6, 1956. Key
continued in the Respondent's employ as a journeyman. Daum was a member
of the Union. He operated a press and Cecil Dover was his apprentice.
At sometime during late 1954, when the bookbinders were engaging in a strike
against the Respondent, Edwards had a conversation with Henley. Henley asked
him how he felt about unions in general. Edwards said that he thought that
unions were "the backbone of the country." When Henley asked him if he would
work in an open shop , he replied , "Not if I can get out of it ; not if I can make a
living in any other way, I wouldn't do it."
About April 1956, Edwards had another conversation with Henley. Concerning
this conversation, Edwards testified credibly to the following:
And on this particular occasion, Mr. Henley told me that if I was a member
of a group of men that were exceptional craftsmen, that if they banded together
and formed an organization and they came to him and asked for $3, $4 an
hour, whether they belonged to the union or not, just so long as they were
very good pressmen, very highly skilled, first-class men, that he wouldn't
have any objection to paying $2, $3 or $4 an hour, whatever they asked,
but the way the union was set up now, that a good man was held down by
a bad man-that a man who was paid $2.71 an hour, he may be an exceptional
craftsman but he had to hold up a man who wasn't so good so that everybody
breaks even, and that he didn't think that was fair to a high quality man and
it was unfair also to the man who wasn't so good.
Henley also told Edwards during this conversation that he was a "very good press-
man"; that he wanted him and Key "on his team"; and that he could not understand
"why a man would choose to associate himself with a crowd which more or less
held him back."
On several occasions Edwards, as the Union's chapel chairman, presented griev-
ances on contract violations to Daum. In his dealings with Edwards in this
connection, Daum showed his resentment by being sarcastic or angry and at
times "would turn around and walk off and not discuss the matter any further."
Edwards was absent from the plant on vacation from about June 1 to 10, 1956.
He requested Key to act as chapel chairman during his absence. Key informed
Daum of this arrangement. Key testified credibly that the following took place
during this time:
And on Tuesday after Mr. Edwards left to go on his vacation the Friday
before, Mr. Daum put an apprentice man on a press where a journeyman
was required by contract. And I brought to Mr. Daum's attention that he
was violating the contract, that he had put an apprentice on this equipment
when we had journeymen in our union who were possibly out of work, that
4 Edwards testified that he received a jail sentence of 3 to 6 years in New Hampshire
for armed robbery and assault.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if he had called the secretary of the union he would be glad to send a pressman
if he was short a pressman.
Mr. Daum said at that time he didn't care about the union, that he didn't
care about violating the contract, that the union some years before that had
done him a dirty deed he felt and he was out to get even with them.
About June 14 Daum told Dover to "watch" Edwards and Key, and that, "If
anything is wrong they can be fired." 5 Dover refused to spy upon Edwards and Key.
About June 28 Edwards went to Wilson's press and spoke to him about his
union dues. Edwards walked away when Cleburne approached the press. Cleburne
then asked Wilson if Edwards had been talking to him about the Union or bothering
him. Wilson admitted that Edwards had talked about the Union, but stated
that he had not been bothered. A few minutes later Daum came to Wilson and
asked him if Edwards had been talking to him. When Wilson admitted that
Edwards had talked to him, Daum said, "you let me know the next time he does."
A day or two later Johnson told Wilson that if Edwards talked to him (Wilson)
"any more" about the Union, he (Johnson) would go to the "office" to have him
discharged.6 A few days later and about July 2 or 3, Wilson was told by Johnson
to report to Henley's office. Henley, Wyatt, Cleburne, Johnson, and Wilson were
present at the meeting. Edwards' discharge was discussed. Henley mentioned
Edwards' union activity in the plant and said, " I can understand why Foreman
Daum gave him 1 chance and Foreman Daum bent over a little bit giving him
2 chances, but the third time is a little bit too much and if Daum don't fire him,
I will fire him over Daum's head." Henley said to Wilson, "I understand you paid
up your dues. . . . It is your privilege and I think a man has a right to belong
or not belong to a union but personally I think he is crazy or a fool."
At about 8 : 30 a. m. on July 5, Daum went to Key and said, "John , you have been
warned before about talking to other people and leaving your equipment. .
I am not going to continue to warn you boys of this. . . I have warned you be-
fore and I mean for it to be effective ." Key replied that that was the first time
that he had received such a warning and that he was going to talk if someone talked
to him. Daum then said, "In that case, if you continue to talk and leave your
equipment , I am putting you on probation ." Key reported this conversation to
Edwards and requested him to present the grievance to Daum.
At lunchtime that same day Edwards told Daum that there was "no provision
for probation ," and asked him to straighten the matter out with Key so that it
would not get to "the front office." Daum stated that he did not think he should
discuss it with Key. Edwards then said that as chapel chairman he was asking
him "officially to straighten it out" or he would be forced to notify "the union
officials"; and that he should inform him of his decision by 3:30 p. m. so that he
(Edwards) would know what to do. Daum replied, "The only thing I will let you
know by 3:30 is you are fired; you have a week's notice. . . For spoiling a job."
When Edwards argued that he had followed Daum's orders in performing the job
referred to, Daum stated , "That is going to be it, anyway " and walked away.?
At about 3 : 20 p. m . on July 5 Daum gave Edwards a dismissal notice. It was
dated July 5, 1956, and was signed by Daum and Henley. The notice reads as follows:
Your foreman talked to you and others around the 7th of June cautioning.
you to stay on your automatic equipment and not bother other employees on
their jobs on company time. It was clearly stated that disciplinary action
would be taken in the event of repeated occurrences.
Again around the 20th of June there were recurrences of this same neglect
in which you left your equipment. You were told again that the practice
must be stopped and if persisted in you would be let go.
It has been reported to management that on July 2' that you again left your
operating automatic equipment having been warned specifically ,. clearly, and
officially on at least two other occasions as well as several other less formal
admonitions , and with full knowledge of the penalty of continued violations.
5 As related above, Dover is a deaf-mute. His associates communicated with him by
writing on slips of paper.
9 Sometime during June Johnson told Bethune to "watch" Edwards ; and that if Edwards
or anyone else spoke to him about the Union, he should refer them to Cleburne.
7 About 4 days before Edwards' discharge, Daum told him to run a rush job through
the press although Edwards had warned him that the ink was "still wet." Edwards shut
off the press after Daum left because "the sheets were streaking off.," and finished the
job later that day.
BIRMINGHAM PUBLISHING COMPANY 1401
This persistent recurrence of violations of and disregard for properly con-
stituted authority leaves us no choice but to direct termination of your employ-
ment effective at the close of the payroll week ending this date.
You will be paid all monies due you including accrued vacation and one
regular weeks pay.
Edwards read the notice and said to Daum, "That is not what you were going to
fire me for at lunch. . . This business here I have never heard anything about it
before. I think actually what I am being fired for is something you trumped up
because of my union activities in this plant, and because I talked to you [about
Key] at lunch." Pointing to the notice, Daum replied, "That is it."
After Edwards' discharge and about July 12 while he was on the picket line in
front of the plant, Henley told him, in substance, that he was sorry that he had to
discharge him; and that although he was a good employee, he had got "way out
in left field with this union business."
I believe and find that the Respondent discharged Edwards because of his mem-
bership in and activities on behalf of the Union. In so finding, I have credited the
testimony of Edwards, Key, Dover, Wilson, and Bethune. The fact that Edwards
was convicted of a felony in 1948 has been taken into consideration. From his
demeanor as a witness , he appeared to be forthright, honest, and reliable. There
are no contradictions or evasions in his testimony. Further, his version of the
discharge is supported by the credited testimony of Key, Dover, Bethune, and
Wilson. The denials of their testimony by the Respondent's witnesses have been
rejected. Since they have been discredited in this connection and elsewhere in
this report, I do not believe that they should be credited when their testimony
conflicts with that of Edwards merely because of the fact that he has a criminal
record. It has been a serious deterrent in resolving issues of credibility in favor of
Edwards; but after a careful review of the record as a whole I am convinced that
the above findings are correct.
It has been found above that at their meeting on June 30 Daum told Jurtsen that
Edwards and Key were "continually leaving" their presses. Neither Key nor Ed-
wards denied that they talked or left their equipment. In fact, Edwards and other
witnesses testified to a number of reasons why it was necessary for a pressman at
times to leave his press. The record is replete with evidence showing that. the
Respondent's pressmen left their equipment while it was running; and that there
was no established or rigid rule against such practice.
Edwards denied generally that he had been warned against leaving his machine.
When asked by counsel if he had been warned by Daum or any other supervisor,
Edwards testified, "No; not to my knowledge about something to be called a caution,
coming in and saying: `Don't leave that press again ,' no such thing as that, no."
At some undisclosed time when he was foreman, Key spoke to Edwards about
leaving his press. In this connection Key testified credibly, "At one time Mr. Wyatt
approached me and said he noticed Howard had left his press for a period of time
that morning, I don't know how long it was, and he said he didn't think he should
leave his automatic equipment and for me to mention the fact to Howard." 8 Ed-
wards was not questioned in this connection. It is clear from his testimony, quoted
above, that he merely denied receiving what he considered to be a specific warning.
It is apparent from the evidence that the reason for Edwards' discharge was a
pretext. That the Respondent was looking for an excuse to discharge Edwards is
indicated by the fact that Daum and Johnson asked employees to spy upon him.
Henley's statement at the meeting on July 2 or 3 indicates that pressure was being
put upon Daum to discharge Edwards and that Daum was reluctant to do so. In
his first conversation with Edwards on July 5, Daum told him he was being discharged
"for spoiling a job." He apparently decided that this reason would not stand up.
because no mention is made of it in the dismissal notice.
Assuming arguendo that Daum did warn Edwards "around the 7th of June" 9 and
again "around the 20th of June" to "stay on your equipment and not bother other
employees on their jobs on company time," which I do not find to be the true facts,
nevertheless there would be discrimination in the case. This would merely prove
that the Respondent was restricting the movements of Edwards and Key, the only
8 Wyatt also testified to the above incident. Louis Soule was acting foreman before
Key. Wyatt testified that he instructed Soule to warn Edwards about leaving his press.
Soule testified that lie did not warn Edwards and denied receiving such orders from Wyatt.
8It should be noted that it is undisputed that Edwards was on vacation from about
June 1 to 10.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strong adherents of the Union left in the plant, while permitting free rein to the
opposition . Johnson and other pressmen left their machines without reprimand; and
Johnson in Cleburne 's presence was permitted to "bother " employees "on their jobs on
company time" when he solicited them to sign the decertification petition . However,
when Edwards spoke to Wilson about his union dues , Cleburne and Daum im-
mediately went to him and questioned him about his conversation with Edwards.I°
For the above reasons I conclude and find that the Respondent discharged Howard
Edwards on July 5 , 1956, in violation of Section 8 (a) (3) and ( 1) of the Act.
D. The strike
As related above, the strike started on July 10, 1956. Daum was a working fore-
man. Dover was his helper, and was paid at the rate of $1.90 per hour. Daum quit
his job during the morning of the same day that the strike started. Dover reported for
work that day, and was told by Wyatt that he would be a journeyman pressman if he
would continue to work. Dover worked for 4 days, taking Daum's place and receiv-
ing the journeyman rate of $2.71 per hour. He then joined the strike. While Dover
was on the picket line, he was asked by Wyatt, Henley, and Allen Morton, vice
president of Respondent , to return to work. During his conversation with Henley,
Dover stated that he would like to work , but was afraid that "someone" would hurt
him if he did.
I find that Dover reported for work on July 10 and was promoted to journeyman
pressman . I do not find, as alleged in the complaint , that he was promised benefits
if he did not join the strike or later if he would abandon the strike and return to work.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in con-
nection with the operations of the Respondent set forth 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated against Howard Edwards.
It will be recommended that the Respondent offer Howard Edwards immediate and
full reinstatement to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges . It further will be recommended that
the Respondent make whole said employee for any loss of pay he may have suffered
by reason of Respondent 's discrimination by payment of a sum of money equal to
that which he would have earned as wages from the date of the discrimination to the
date of an offer of reinstatement , less his net earnings during such period.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Birmingham Printing Pressmen & Assistants ' Union No. 121 , International
Printing Pressmen & Assistants ' Union of North America, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating against Howard Edwards the Respondent has engaged in
unfair labor practices within the meaning of Section 8 (a) (3) and (1) 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 unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid labor practices affect commerce within the meaning of Section
2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
"From Daum's testimony and from the notice of dismissal it appears that this inci-
dent is the one referred to as occurring on July 2. Daum testified that Wilson came to
him and complained that Edwards "was bothering him while he was working." His
testimony in this connection is not credited.