Easton Publishing Co.

National Labor Relations Board - Board Decisions

Jan 11, 1940

19 N.L.R.B. 389 (N.L.R.B. 1940)

In the Matter of EASTON PUBLISHING Co. and EASTON TYPOGRAPHICAL
UNION No. 258, AFFILIATED WITH INTERNATIONAL TYPOGRAPHICAL
UNION
Cases Nos. C-1356 and R-1400.-Decided January 11, 1940
ewspa-per Publishing Industry-interference, Restraint, and Coercion: speechIN
by respondent's president, coinciding with Union's initial attempts at negoti-
ating, tending to discourage union membership and activity-Collective Bargain
ing: charges of refusal to bargain collectively dismissed-Strike: involved-
Investigation of Representatives: controversy concerning representation of em-
ployees : respondent's averment in answer to complaint that Union does not
now represent employees in claimed unit ; strike current-Unit Appropriate for
Collective Bargaining: all employees in composing room of respondent's news-
paper, including foremen, assistant foremen, copy cutters, machine tenders,
machine operators, compositors, make-ups, and apprentices ; agreement as to-
Representatives: proof of choice : signed authorizations as of date of alleged
refusal to bargain ; no controversy as to ; eligibility to participate in choice :
persons taking places of striking employees during currency of strike not
eligible to vote; eligibility determined by pay roll last preceding date of strike;
(Leiserson dissenting in part) persons taking place of striking employees where
no unfair-labor-practice strike should be permitted to vote as should strikers
and any employees hired since strike to fill new positions-Election Ordered
Mr. Geoffrey Cuniff and Mr. Samuel G. Zack, for the Board.
Mr. Elisha Hanson, of Washington, D. C., and Mr. George F.
Coffin, of Easton Pa., for the respondent.
Mr. John J. Buckley, of Valley Stream, N. Y., Mr. Alfred J.
Whittle, of Tuckahoe, N. Y., and Mr. Frank Fenton, of Washington,
D. C., for the Union.
Mr.. Joseph Forer, of counsel to the Board.
DECISION.
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 3, 1938, International Typographical Union duly
filed with the Regional Director for- the Fourth Region (Philadel-
phia, Pennsylvania) a charge alleging that Easton Publishing Co.,
Easton, Pennsylvania, herein called the respondent, had engaged in
19 N. L. R. R. No. 43.
283030-41-v-ol . 19-2u
389
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was engaging in certain unfair labor practices affecting com-
merce, within the meaning. of the National Labor Relations Act, 49
Stat. 449, herein called the Act, and a petition alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of the respondent and requesting an investigation and
certification pursuant to Section 9 (c) of the Act. On November 23,
1938, International Typographical Union duly filed an amended
charge, and on May 18, 1939, Easton Typographical Union No. 258,
affiliated with International Typographical Union, herein called the
Union, duly filed a second amended charge.
Upon the charge and amended charges, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for
the Fourth Region, issued its complaint dated May 18, 1939, against
the respondent alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
Act.
On the same day, the Board, acting pursuant to Section 9 (c) of
the Act and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 1, as amended, ordered an in-
vestigation of the petition and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due notice,
and further ordered that the two cases be consolidated for all pur-
poses and that one record of the hearing be made.
Concerning the unfair labor practices, the complaint alleged . in
substance that on or about September 30, 1938, and thereafter, the
respondent refused to bargain collectively with.the Union as the rep-
resentative of the majority of its composing-room employees; and
that thereby, by discouraging membership in the Union, and by other
acts, the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
The respondent filed.an answer admitting, in substance, the allega-
tions of the complaint concerning the nature and scope of its business,
and further admitting that the employees engaged in its composing
room constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of the Act. It denied the allegations
concerning the unfair labor practices and alleged that certain em-
ployees who went on strike on March 23, 1939, do not constitute a unit
appropriate for the purposes of collective bargaining. As an affirma-
tive defense, it alleged that the. proceeding violated the due process
clause of the Fifth. Amendment to the Constitution in that it was
an attempt to, require the respondent to yield to the "closed-shop"
demand of the Union.
EASTO-N PUBLISH'ING 'COMPANY - 391
Copies of the complaint and petition and of notices of hearing and
continuances thereof were duly served upon the respondent and the
Union. Pursuant to the notices, a hearing was held on June 8, 9,
and 12 , 1939 , at Easton, Pennsylvania , before James C. Paradise, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel, and the Union by its repre-
sentatives; all participated in the hearing and were afforded full
opportunity to be heard, to examine and cross -examine witnesses,
and to introduce evidence bearing on the issues.
During the course of the hearing the Trial Examiner made a
number of rulings on motions and on objections to the admission of
evidence , and in his Intermediate Report disposed of several motions
on which he had, at the hearing, reserved decision. The Board has
reviewed the rulings of the Trial Examiner and, except as they are
inconsistent. with the findings, conclusions, and order set forth below,
finds that no prejudicial errors were committed. The rulings are
hereby affirmed to such extent.
After the close of the hearing the respondent filed a brief for the
consideration of the Trial Examiner. On September 12, 1939, the
Trial Examiner issued his Intermediate Report, copies of which were
duly served upon the parties, wherein he found that the respondent
had engaged in and was engaging in unfair labor practices affect-
ing commerce, within the meaning of Section 8 -(1) and (5) and
Section 2 (6) and (7) of the Act. He recommended that the re-
spondent cease and desist from the unfair labor practices so found
and take certain affirmative action of remedial nature. Exceptions
to the Intermediate Report, a brief, and a request for a hearing for
the purposes of oral argument were filed by the respondent.
Pursuant to notice duly served upon all the parties, a hearing was
held on November 7, 1939, at Washington, D. C., before the Board,
for the purpose of oral argument. The respondent and the Union,
represented by counsel, participated in the argument.
The Board has considered the exceptions and briefs filed by the
respondent and finds the exceptions to have merit only in so far as
they are consistent with the findings of fact, conclusions of law, and
order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TIIE BUSINESS OF THE RESPONDENT
Easton Publishing Company, a Pennsylvania corporation with ,its
plant and office in Easton, Pennsylvania, is engaged in publishing
and distributing the Easton Express, a daily newspaper. The raw
materials used by the respondent consist of newsprint, ink, and type
l
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
metal . In the 12 months preceding the date of the hearing, the
respondent used 1,450 tons of newsprint , all of which was purchased
outside of . Pennsylvania . During 1938 the respondent used approxi-
mately 300 ,000 pounds of ink , and purchased approximately 5 tons
of type metal, approximately half of such metal and ink being ob-
tained from places outside of Pennsylvania .. The circulation of the
Easton Express is approximately 33,000, of which circulation outside
of Pennsylvania accounts for 12,000 . The newspaper publishes
numerous syndicated cartoon strips and other syndicated matter fur-
nished by various services . The respondent is a. member of the Asso-
ciated Press, both for receiving news and for making available to
that service any news stories which may be gathered by the respond-
ent's reporters and appear in its columns. The respondent also
receives the services of the International News Service and the
United Press. For the respondent 's past fiscal year, between 7 and
10 per cent of the advertisements appearing in its newspaper were
classified as national advertising , consisting of advertising printed
generally in a number of newspapers . The Easton . Express carries
advertising, not classified as national , of concerns located in Phil-
lipsburg, Bloomsbury, and Washington, all in New Jersey. The re-
spondent has a representative for soliciting advertising with offices
in New York, Illinois, Massachusetts, Michigan, and Georgia. The
respondent employs approximately 150 persons . For the purposes of
this proceeding, the respondent does not object to the jurisdiction of
the Board under the Act.
II. THE ORGANIZATION INVOLVED
Easton Typographical Union No. 258 , affiliated with International
Typographical Union, and through it with the American Federation
of Labor, is a labor organization admitting to membership competent
printers and apprentices.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
On September 29, 1938, Alfred J. Whittle, a representative of
International Typographical Union, came to Easton , in accordance
with a request made by the Union of the president of its national
organization . The next day 28 out of 40 men then employed in the
respondent 's composing room signed a statement authorizing the
Union to represent , them for the , purposes of.collective bargaining.
On.OctoberA , 1938, Whittle saw James L. Stackhouse , secretary-
treasurer of the respndent and business manager of the Easton Ex-,
BAS'TON' PUBLISHING. 'COMPANY 393
press, and Edward C. Snyder, the respondent 's mechanical superin-
tendent. Whittle asked for a conference and showed his proof of
majority representation . Stackhouse told him he would make ar-
rangements for a meeting with Chester Snyder , the respondent's
president.
Thereafter , Stackhouse informed Chester Snyder of the prelimi-
nary meeting with Whittle. On October 7, 1938, the respondent
caused the composing -room employees to receive cards in their pay
envelopes requesting them to attend a meeting to be held that after-
noon in the respondent 's board room . Chester Snyder spoke at the
meeting. He discussed economics , stated that he understood that a
number of men were joining the Union , and asked who the ring-
leaders were . He said that he did not oppose the Union , but that
the boys were mistaken if they felt they would benefit; there was
no more money . Rather than run. the plant at a loss, he added, he
would lock up and throw the key in the Delaware River ; he would
not starve . He also inquired why grievances were not brought up
through a "company union" which had existed in the plant.
It is apparent that Chester Snyder's address was an attempt to
discourage union membership and activity , timed to coincide with
the Union 's initial efforts at negotiating with the respondent. We
find therefore that by such action on the part of Chester Snyder, its
president , the respondent interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
B. The alleged refusal to bargain collectively
1. The appropriate unit
The Union and the respondent agree that all the employees, ap-
proximately 40 in number, regularly employed in the respondent's
composing room, including foremen, assistant foremen, copy cutters,
machine tenders, machine operators, compositors, make-ups, and
apprentices, constitute a unit appropriate for the purposes of col-
lective bargaining. No reason appears for departing from the stipu-
lation of the parties. We find that the persons employed in the
respondent's composing room, including foremen, assistant fore-
men, copy cutters, machine tenders, machine operators, compositors,
make-ups, and apprentices, constitute a unit appropriate for the pur-
poses of collective bargaining and that said unit will insure to
employees of the respondent the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate
the policies of the Act.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Designation of the Union by a majority of the employees in the
appropriate unit -
The respondent concedes that from October 1, 1938, to March 23,
1939, the Union was the representative designated by the majority
of the employees in the unit. We have already referred to the fact
that on September 30, 1938, 28 of 40 such employees signed a state-
ment authorizing the Union to represent them for the purposes of
collective bargaining. We find that from October 1, 1938, to March
23, 1939, the Union was the exclusive representative of all the em-
ployees in the appropriate unit for the purposes of collective bar-
gaining in respect to rates of pay, wages, hours of employment, and
other conditions of employment.
3. The alleged refusal. to bargain
The events occurring through October 7, 1938, have already been
described. On October 11 Whittle met, by prearrangement, Chester
Snyder, Edward Snyder, and Stackhouse. Whittle gave Chester
Snyder a draft of a proposed contract and said that Snyder might
have ample time to study it.
On October 18, 1938, the same persons met once more, with the
addition of Carl C.. Webb, a representative of the Pennsylvania
Newspapers Publishers' Association. Chester Snyder indicated that
he was much disturbed by the proposed wage rate, said that he was
not prepared to discuss the contract draft otherwise, and passed it
back to Whittle. He also stated that he would not discuss any
proposal except on an open-shop basis. Whittle informed him that
the wage terms were negotiable and induced him to take back the
contract draft for further consideration.
A conference on October 21, 1938, held at the respondent's board
room, was attended by both Snyders, Stackhouse, Webb, and Whittle.
Webb suggested that some of the men of the composing room be
brought in. Whittle consented and brought in three union members,
while Edward Snyder brought in three non-union employees. Chester
Snyder said that he would not accept a closed shop and asked Whittle
to propose an open shop to the Union. Whittle suggested the pos-
sibility of a preferential shop and explained its operation, but Snyder
responded unfavorably. Whittle requested discussion of the contract
draft, but none was held.
On November 1, 1938, Whittle wrote Chester Snyder that the Union
had unanimously rejected Snyder's open-shop proposal.
On November 16 Whittle and the representatives of the manage-
ment again met, there being also present Hummel, a mediator of labor
disputes employed by the Commonwealth of Pennsylvania, and Fred-
,AST ON, PUBLISHING CO MPANY , 395
erick Sanville, a Field Examiner for, the Board. Chester Snyder
again took the position that he would not discuss any contract unless
it provided for an open shop. No other matters were considered,
despite Whittle's request for discussion on the contract proposals.
On November 23, 1938, Whittle met with the management, and the
proposed contract was considered by paragraphs. At the very outset,
Chester Snyder objected to contracting with the Union as such, ap-
parently because of a belief that such a contract necessarily involved
a closed shop. By agreement, 'accordingly, the paragraphs contain-
ing the word "union" were set aside for later consideration. A num-
ber of the proposed provisions were accepted as they stood.; others
were amended at the suggestion of the management. Agreement was
reached on hours of work, certain provisions regarding apprentices,
overtime rate, holidays, lunch periods, seniority, authority of foremen
to hire and discharge,' sanitary regulations, a clause preventing dis-
charge for incompetency of employees transferred from one type of
.work to another, and other provisions. No agreement was reached,
however, on wages or the closed-shop issue.
On December 14, 1938, the conferees, with the addition of John J.
Buckley, another International Typographical Union representative,
discussed wages. Chester Snyder said the respondent was unable to
grant increases. Whittle offered statistics of other newspapers, but
Snyder denied their applicability to the Easton Express. Whittle
asked that the respondent's prevailing wage of 93 cents per hour
plus the bonus pay usually distributed by the respondent be trans-
lated into a new base pay of $1 per hour. Snyder rejected the pro-
posal. He also reiterated his objection to a closed shop.
On January 17, 1939, Whittle met with both Snyders, Stackhouse,
Webb, Sanville, and Bennet F. Schauffler, the Board's Regional
Director for the Fourth Region. Whittle submitted an estimate of
the respondent's revenue. Chester Snyder and Stackhouse charac-
terized the estimate as being $600,000 too high. Whittle asked Snyder
for his views on an agreement to continue existing wages. Snyder
said that he did not like the idea of signing an agreement "which puts
us in a position that we can afford what we are paying." After fur-
ther discussion of the respondent's revenues, Snyder agreed that
Whittle might go over the respondent's books with Stackhouse.
Whittle and Schauffler asked that a counterproposal be made by the
respondent. A transcript of the meeting, received in evidence, does
not show that the respondent agreed to the request. However, Whit-
tle testified, without contradiction, that it did in fact agree. Since
the transcript fails to show any refusal of the suggestion, it appears
that an agreement by the respondent to make a counterproposal was at
least tacitly understood. During the course of this meeting, likewise,
Snyder withdrew his objection to accepting a contract with the word
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"union" appearing, but repeated that he could not agree to a closed
shop.
Despite the respondent's consent to permit Whittle to inspect its
books, neither he nor any other representative of the Union has ever
taken advantage of the permission.
On January 20, 1939, Whittle wrote to Stackhouse in order to out-
line his views regarding the proposed counterproposal. He set forth
advantages which would accrue to the respondent from entering into
a contract with the Union, and further stated : "I realize the attitude
regarding the closed shop held by the management and it might sur-
prise you to know that many publishers do not feel secure unless a
contract is signed." He concluded by referring to his anticipation
of receiving the counterproposal at an early date. Stackhouse re-
plied in a letter of January 31 that "we have no further counter-
proposal, other than that.brought out in our discussions from time to
time to offer." Whittle then wrote Stackhouse on February 4, ex-
pressing disappointment at the alleged change of position.
On or about February 20, 1939, Chester Snyder went to a hospital
for surgical treatment. He and Stackhouse had earlier agreed that
further conferences with the Union should be held only if the Union
had some new proposals to make. On February 28 Whittle wrote to
Stackhouse explaining that he had been ill and, requesting an early
meeting. Stackhouse answered on March 4 that Chester Snyder had
just returned home from the hospital and that it was doubtful if
he would be able to attend to business for several weeks. He added :
"Without talking with Mr. Snyder I venture the guess that he feels
that all angles of the situation have been sufficiently discussed, and
therefore before arranging for a meeting, he would like to know
whether you have any new proposals to make, and if so, what they
are."
On March 21, 1939, a union meeting was held at which Whittle
reported on the negotiations and Stackhouse's last letter was read.
The Union voted to strike on the basis that the respondent had re-
fused to bargain with it. On March 23, 35 out of 40 persons then
employed in the respondent's composing room went on strike. By
the time of the hearing five strikers had returned-to work. The re-
spondent continued publication and employed men to take the place
of the strikers.
It is apparent that the respondent bargained with the Union
through January 17, 1939. Snyder's earlier refusal to contract with
the Union as such had not caused a disruption of negotiations, and
was withdrawn on January 17. As for subsequent events, Stack-
house's letter of March 4, 1939, was not a refusal on the part of the
respondent to meet with the Union's representative. Whittle knew
that Chester Snyder was the sole person empowered to contract for'
EAS'TON' PUBLISHING COMPANY 397
.the respondent with the Union, and was aware, therefore, that the
reference to Chester Snyder's inability to attend to business was an
explanation that a meeting could not be arranged for several weeks.
While the respondent could not postpone bargaining indefinitely on
account of the disability of one of its officers, we do not view its sug-
gestion that further negotiations be withheld pending Snyder's re-
covery as a refusal to bargain. Nor, under the circumstances, can.
the suggestion by Stackhouse that Snyder would like to know of any
new union proposals before arranging a meeting be construed as such
a refusal.
The Trial Examiner in his Intermediate Report ascribed to the
respondent a refusal to bargain solely on the basis of the respond-
ent's failure to make a counterproposal. It is true, of course, that
an employer's refusal to offer counterproposals may 'be persuasive of
a lack of good faith in bargaining.' In the present instance, however,
the respondent's failure to do so is inconclusive. Although the con-
troversy on wages called into question the amount of the respondent's-
revenues, the Union made no move to inspect the respondent's books
in accordance with the respondent's consent. Nor does it appear that
the subject (natter of the requested counterproposal had been clearly
defined. As the meeting of January 17, 1939, was devoted to a discus-
sion of wages, it was reasonably inferable that the subject matter of
the counterproposal then requested was to be wages. However, Whit-
tle's letter of January 20, 1939, which purported to outline his views
regarding the anticipated counterproposal, made no reference to
wages but instead discussed the advantages of a union contract and.
referred to a closed shop. The respondent might therefore justifiably
have concluded from Whittle's letter that the requested counterpro-
posal was expected to include a proposal on the closed-shop issue, as
to which the respondent had already stated its position. Finally,
the actual disruption of negotiations was not occasioned by Stack-
house's letter refusing the counterproposal. It occurred only after
the Union received his subsequent letter indicating that a further
conference would have to await Chester Snyder's recovery and tenta-
tively suggesting that the Union make new proposals.
The entire record does not support a finding that the respondent has
refused to bargain collectively with the Union. The allegation of
the complaint that it has done so will be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III A above,
occurring in connection with the operations of the respondent de-
1 See Matter of Globe Cotton Mills and Tewtile Workers Organizing Committee, 6 N. L,
R. B. 461 , enf'd as mod ., Globe Cotton Mills v . N. L. It. B ., 103 F. ( 2d) 91 ( C. C. A. 5).
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scribed in Section I above, have a close, intimate , and substantial.
relation to trade, traffic, and commerce among the several States, alid
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
.
Having found that the respondent has engaged in and is engaging
in unfair labor practices, we will order it to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act.
VI. THE QUESTION CONCERNING REPRESENTATION
In its answer to the complaint the respondent denied that the em-
ployees who went on strike constitute a unit appropriate for the
purposes of collective bargaining and further stated that it does not
now regard the Union as the representative of its composing-room
employees.
We find that a question has arisen concerning the representation
of the respondent's composing-room employees.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
ON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of conunerce.
VIII. THE DETERMINATION OF REPRESENTATIVES
Although we have found that from October 1, 1938, to March 23,
1939, the Union was the designated bargaining representative of the
respondent's employees within the appropriate unit, the lapse of time
and changes in circumstances since the designation render an election
by secret ballot necessary to resolve the question concerning repre-
sentation which has arisen.
We have elsewhere held that persons taking jobs vacated by strik-
ing employees are not eligible, during the currency of the labor
dispute in connection with which the work,of the strikers ceased, to
participate in a selection of bargaining representatives. In the
Sartorius 2 case we pointed out that "by holding that individuals,
2 Matter of A. Sartorius h Co., Inc. and United Mine Workers of America, District 50,
Local 12090, 10 N. L. R. B. 493. See also Matter of Johnso -Carper Furniture Co., Inc.
and Local 283, United Furniture Workers of America, 14 N. L. R. B. 1030.
E.kSTON PGBLISH..ING OOI[PA\Y 399
who took jobs vacated by striking employees, also were eligible to
participate in the selection of the bargaining representative of the
employees in the appropriate unit, there resulted a situation where
two individuals, with interests diametrically opposed, were, by virtue
of one and the same job, entitled to participate in the selection of the
bargaining representative. If those who have, during the currency
of the strike, replaced the strikers are permitted to vote, and the
strikers are also permitted to vote, possibly twice as many as can be
employed may participate in the election. This was not the intent
of Congress. Yet the intent that strikers should remain employees
for the purposes of the Act is clear." We also stated : "The hold of
individuals who, during the currency of a strike, occupy positions
vacated by striking employees is notably tenuous. To accord such
individuals, while the strike is still current, a voice in the selection
of the bargaining representative of employees in the appropriate
unit would be contrary to the purposes of the Act and the ends con-
templated by it, since it might effectively foreclose the possibility of
the settlement of the labor dispute, whether by the return of the
striking employees to their jobs and the displacement of the indi-
viduals occupying those jobs during the strike, or by some other
settlement agreement, a possibility which the Act contemplates should
not be foreclosed during the currency of the strike."
In the instant case the strike which began among the respondent's
composing-room employees on March 23, 1939, was still current at
the time of the hearing. For the reasons expressed, and in the ab-
scence of any showing that since March 23, 1939, there have been
created positions in the composing room other than those which were
occupied on that date, we shall direct that the composing-room em-
ployees on the pay roll for the period last preceding March 23, 1939,
including those who did not work during such pay-roll period because
they were ill or on vacation and those who were then or have since
been temporarily laid off, but excluding those who have since quit
or been discharged for cause, shall be eligible to vote in the election.
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. Easton Typographical Union No. 258, affiliated with Interna-
tional Typographical Union, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. The. respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
4. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (5) of the Act.
5. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondent, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
6. The employees of the respondent employed in its composing
room, including foremen, assistant foremen, copy cutters, machine
tenders, machine operators, compositors, make-ups, and apprentices,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning.of Section 9 (b) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Easton Publishing Co., Easton, Pennsylvania, and
its officers, agents, successors, and assigns, shall :
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection.
2. Take .the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post immediately in conspicuous places in its plant, and main-
tain for a period of at least sixty (60) consecutive days, notices to
its employees, stating that the respondent will cease and desist as
provided in Section 1 of this Order;
(b) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (5) of the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
E S'TON(- PUBLISHING COMPANY 401
National Labor Relations Board Rules and Regulations-Series 2,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Easton Publishing Co., Easton, Pennsylvania, an election by
secret ballot shall be conducted as early as possible but not later
than thirty (30) days from the date of this Direction of Election,
under the direction and supervision of the Regional Director for
the Fourth Region, acting in this matter as agent for the National
Labor Relations Board and subject to Article III, Section 9, of said
Rules and Regulations, among the employees of Easton Publishing
Co. who were employed in the composing room of the Company
during the pay-roll period last preceding March 23, 1939, including
foremen, assistant foremen, copy cutters, machine tenders, machine
operators, compositors, make-ups, apprentices, employees who did
not work during such pay-roll period because they were ill or on
vacation, and employees who were then or have since been tem-
porarily laid off, but excluding any employees who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented by Easton Typographical Union No. 258, affiliated
with International Typographical Union, for the purposes of
collective bargaining.
Mn. WILLIAM M. LFISERSON, dissenting in part:
I cannot agree with that-part of the decision which restricts eligi-
bility for voting in the election to those employees on the pay roll
for the period preceding March 23, 1939. The election that is ordered
-will be held in January 1940, and the effect of the selected eligibility
date is to deny voting rights to all those employees who were hired
during the 10-month period following March 23, 1939.
I do not think that the National Labor Relations Act authorizes
the Board to deny to any bona fide employees the right to vote in
-in election for the purpose of choosing a collective bargaining agent
that is to represent the unit of which they are a part. The majority
opinion attempts to justify the exclusion of employees hired since
March 23 on the ground that the Act specifically defines strikers
as employees, and the strikers must be permitted to vote. I agree
that the striking employees must be given an opportunity to vote
in the election, but this does not seem to me to justify the Board
in excluding other bona fide employees from voting.
The Board finds that the strike in the present case was not caused
by unfair labor practices. If it were an unfair labor practice strike,
the Board would order reinstatement of the striking employees and
removal of strikebreakers to make places for them. In that case the
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikebreakers would obviously not be bona fide employees and would
not have the right to select representatives for collective bargaining.
But in the present case the Board does not find any employees
hired in violation of the Act and does not order displacement of any
such employees . The majority opinion merely assumes, without
proof, that every employee hired since March 23 was employed to
take the place of a striking employee, and because those on strike
a. re to be permitted to vote, therefore the others should not vote.
But some employees hired during the last 10 months may not have
been employed to replace strikers at all . Such - employees unques-
tionably cannot be denied the right to,vote, , and I am of the opinion
that the Act also constrains the Board to include in the list of eligible
voters every other bona fide employee not hired in violation of the
provisions of the Act.