Idaho Potato Processors, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1962

137 N.L.R.B. 910 (N.L.R.B. 1962)

AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 1663
2. Local 1089 and Local 383 are labor organizations within the meaning of Sec-
tion 2 (5) of the Act.
3. Local 1089 by picketing at the Yellow Front Store in October and November
1960 , and Local 383 by picketing at the Tonto School and the Kiva School in January
and February 1961, in an attempt to organize employees of Colson and to obtain
recognition from Colson , have each by reason of the refusal of suppliers to cross
the picket lines, violated Section 8 (b)(7)(C) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Neither Local 1089 nor Local 383 has violated Section 8(b) (4) (A) and (B)
of the Act.
[Recommendations omitted from publication.]
Amalgamated Lithographers of America ; Local No. 45, Amal-
gamated Lithographers of America ; Local No. 4, Amalgamated
Lithographers of America ; Local No. 1, Amalgamated Lithog-
raphers of America and Lithographers & Printers National
Association , Inc. and Chicago Lithographers Association;
Acme Press Incorporated ; Metropolitan Press Printing Co.,
Inc.; L & H Printing Company; Craftsman Press, Inc.;
Metropolitan Lithograph Association , Inc.; R. R . Heywood
Company; Lutz & Sheinkman ; Snyder & Black & Schlegel,
Incorporated , Parties in Interest
Amalgamated Lithographers of America; Local No. 7, Amal-
gamated Lithographers of America ; Local No. 11, Amalga-
mated Lithographers of America and Lithographers & Print-
ers National Association , Inc. and Stecher-Traung Lithograph
Corporation and Milwaukee Lithographers Association, Parties
in Interest
Local 45, Amalgamated Lithographers of America ; Acme Press,
Incorporated ; Metropolitan Press Printing Co., Inc.; L & H
Printing Company ; and Craftsman Press , Inc. and Inter-
national Printing Pressmen Assistants ' Union of North Amer-
ica, AFL-CIO and Amalgamated Lithographers of America,
Party in Interest
Local 45, Amalgamated Lithographers of America and W. F.
Hall Company and International Printing Pressmen Assist-
ants' Union of North America, AFL-CIO and Amalgamated
Lithographers of America , Party in Interest . Cases Nos.
-CE-7, -,-CE-9. -,-CE-11 (Post 19-CE-7), and 2-CE-12 (Post
19-CE-8). July 26, 1960
DECISION AND ORDER
On February 14, 1962, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter the General Counsel, the Respond-
ents, and the Charging Party filed exceptions and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner 2
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order.
MEMBERS FANNING and BROWN, dissenting in paI't :
We agree with our colleagues on all but one aspect of this case. For
the reasons stated in our dissenting opinion in Automotive, Petroleum
d Allied Industries Employees Union, Local 618, etc. (Greater St.
Louis Automotive Trimmers and Upholsterers Association, Inc.),
134 NLRB 1363, we dissent from the finding that the exchange of
letters between Respondent Local 1 and certain employer-members
of the New York Association, as more fully described in the Inter-
mediate Report, was a "reaffirmation" of a pre-10(b) contract which
constituted a new "entering into" under Section 8 (e) within the 10 (b)
period. Accordingly, we would dismiss this allegation of the
complaint.
1 The Respondents' request for oral argument is denied as the record, exceptions, and
briefs adequately present the issues and positions of the parties
2 Contrary to Respondents , the Board' s decisions in Amalgamated Lithographers of
America and Local 78, etc . ( Employing Lithographers of Greater Miami, Florida, et al ),
130 NLRB 968, enfd. 301 F. 2d 20 (C A. 5), and Amalgamated Lithographers of America
(Ind ), and Local 17, etc. ( The Employing Lithographers , etc ), 130 NLRB 985, which
held trade shop clauses to be unlawful, did not result in the "automatic elimination" of
section 23 (a), the trade shop and outside work clause, from Respondent Local 1's con-
tract herein. The contract provision which Respondents assert accomplished this elimina-
tion upon the issuance of the aforementioned decisions simply provides for a substitution
for section 23(a) If that section , which is not completely identical to the trade shop pro-
visions in the cited cases, is determined to be in violation of law. Until now, section
23(a) has not been held violative of the Act.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
In the above-entitled cases charges and or amended charges were filed as fol-
lows: by Lithographers & Printers National Association, Inc., in Case No. 2-CE-7
on June 5 and 6 and July 19, 1961; and in Case No. 2-CE-9 on July 19; and by
International Printing Pressmen Assistants' Union of North America, AFL-CIO, in
Case No. 2-CE-11 on July 3, 1961; and in Case No. 2-CE-12 on July 21, 1961.
An order consolidating Cases Nos. 2-CE-7, 9, and 11, a complaint and notice of
hearing thereon were issued and served by the General Counsel of the National
Labor Relations Board on August 25, 1961. An amended consolidated complaint
AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 1665
and notice of hearing in Cases Nos. 2-CE-7, 9, 11, and 12 were likewise issued
and served on October 13, 1961. Answers to the original and amended complaint
were duly filed by the Respondents Amalgamated and Locals 4, 7, 11, and 45. The
record contains no answer filed by any of the Respondent Employers cited in Cases
Nos. 2-CE-1 I and 12.
The complaints allege and the answers deny that the Respondents have engaged
in unfair labor practices within the meaning of Section 8(e) of the National Labor
Relations Act, as amended.
Pursuant to the notices of hearing, a hearing was held before Trial Examiner
Sidney Sherman on November 20, 1961, and Trial Examiner C. W. Whittemore
on December 4, 1961.1 As indicated above, counsel for the parties appeared at the
hearings, were afforded full opportunity to present evidence pertinent to the issues,
to argue orally, and to file briefs.
No witnesses were called. In lieu of testimony, General Counsel placed in evi-
dence a written stipulation, signed by Counsel Chaitovitz, Humphrey, and Silverman
on behalf of the party or parties represented by each.2 Certain contracts, provisions
of which are in issue, were attached to and made a part of said stipulation. Upon
receipt of the stipulation in evidence General Counsel rested his case. Thereafter
the Trial Examiner sustained General Counsel's objection to the taking of any
evidence as to "intent," and placed in the rejected exhibit file written offers of proof
on this subject.
Comprehensive briefs have been received from General Counsel, the Charging
Association, and the Respondent Unions.
Upon the record thus made, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF EMPLOYERS INVOLVED
Chicago Lithographers Association is an association of employers located in
Illinois who are engaged in the manufacture and sale of lithographic and related
products. It exists for the purpose, among others, of negotiating and entering into
contracts on behalf of its employer-members with labor organizations representing
employees of such members. During the year prior to the issuance of the relevant
complaint, employer-members of this Association purchased and had delivered to
their respective places of business directly or indirectly from States other than
Illinois materials valued at more than $50,000. During the same period the
employer-members made, sold, and shipped from their plants in Illinois to customers
or enterprises located outside Illinois products valued at more than $50,000.
Milwaukee Lithographers Association is a similar organization of employers in
the State of Wisconsin, existing for the same purpose. During the same period its
members purchased and received from across State lines materials valued at more
than $50,000 and shipped out of Wisconsin to customers and enterprises in other
States products valued at more than $50,000.
New York Association is a similar organization of employers (but not limited,
apparently, to the State of New York) existing for the same purpose. During the
same period its members purchased and received from across State lines materials
valued at more than $50,000 and directly or indirectly shipped into States other
than that in which located products valued at more than $50,000. R. R. Heywood
Company, Lutz & Sheinkman, and Snyder & Black & Schlegel, Incorporated, are
members of the New York Association.
Acme Press Incorporated is a State of Washington corporation with principal
place of business in Seattle, Washington, where it is engaged in the manufacture,
sale, and distribution of lithographic and related products. During the past year it
has purchased and received from points outside the State of Washington materials
valued at more than $50,000. During the same period it has sold and shipped, di-
rectly or indirectly, to points outside the State of Washington products valued at more
than $50,000.
'On November 20 Trial Examiner Sherman opened the bearing, granted a motion to
amend the complaint, and upon request of the parties adjourned the hearing until
December 4.
2 Counsel Arvan, for the parties represented by him, orally stated his qualified approval
of the stipulation The qualification was merely to the effect that he could agree only to
certain facts of which he had knowledge, but would not contest matters beyond his
knowledge and which did not involve his clients
649856-63-vol. 137-106
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metropolitan Press Printing Co., Inc., L & H Printing Company, Craftsman Press,
Inc., and W. F. Hall Company are also Washington corporations, with places of
business in Seattle, Washington, and engaged in similar lithographic business. Dur-
ing the past year each (except Hall) has purchased and caused to be delivered at
its plant, directly or indirectly, from points outside the State of Washington, ma-
terials valued at more than $ 50,000, and each ( including Hall) has sold and shipped,
directly or indirectly , to points outside the State of Washington , products valued at
more than $50,000.
Stecher-Traung Lithograph Corporation is a New York corporation, with place
of business in Rochester , New York, where it is engaged in a similar business. Dur-
ing the past year it purchased and caused to be shipped to its plants , directly or
indirectly, from points outside the State of New York, materials valued at more
than $50,000, and sold and shipped outside the State of New York products valued
at more than $50,000.
It is alleged , conceded , and found that each of the above Associations and cor-
porations are employers engaged in commerce within the meaning of Section 2(2),
( 6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Amalgamated Lithographers of America, its Locals Nos. 45, 4, 1, 7, and 11, and
International Printing Pressmen Assistants' Union of North America, AFL-CIO,
are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
In quick summary , this long and involved complaint alleges that the parent Amal-
gamated, its named locals , the Respondent Employers Acme, Metropolitan, L & H,
Craftsman , and Hall have , by entering into and maintaining contracts containing
certain provisions proscribed by the amended Act, violated Section 8(e) of the Act.
Section 8 ( e) makes it an unfair labor practice (with exceptions in industries not
involved here ) for "any labor organization and any employer to enter into any
contract or agreement , express or implied , where such employer . agrees to cease
or refrain from handling , using, selling , transporting , or otherwise dealing in any of
the products of any other employer, or to cease doing business with any other
person. .
While the chief issue may thus be simply defined , its component parts are numer-
ous and involve various contract provisions , locals, individual employers, and
employer associations scattered from one coast to the other.
The well-organized brief of General Counsel suggests an appropriate order of
treatment here of these varied matters.
B. "Trade Shop and Outside Work" clauses
The contract provision quoted in this section is challenged by General Counsel as
being violative of the Act. In almost identical language it appears in the following
contracts:
(1) Local No. 4 and the Chicago Association
(2) Local No. 45 and Employers Acme, Metropolitan , L & H, and Craftsman,
all of Seattle , Washington
(3) Local No. 7 and the Milwaukee Association
(4) Local No. 11 and employer Stecher of Rochester, New York
The clause challenged:
The Employer represents that if it obtains any lithographic preparatory work
(lithographic production prior to press ) or press work from the outside, it ob-
tains all such work from sources under contract with the Amalgamated Lithog-
raphers of America. The Union affirms that it would be strongly opposed to
any change in the Employers method and manner of production which would
involve obtaining any lithographic production work from non-Amalgamated
sources, and that it will use all legal means available to it to dissuade the Em-
ployer from making any such change. The Employer acknowledges the inte-
grated nature of the lithographic industry and the continuing technological
developments, and agrees that any such changes by the Employer may affect
or may lead to an effect upon the employment of workers covered by this agree-
ment or the stability of their welfare or Pension funds. Therefore, the Employer
will give the Union immediate notice of its intention to obtain any of the afore-
AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 1667
said lithographic production work from sources not under contract with the
Amalgamated and will meet promptly to consider mutually agreeable changes
in the contract relating to hours, apprentice ratios, overtime provisions or new
clauses such as establishment of severance pay funds or retraining programs.
Notwithstanding any of the provisions of this Article, the employer shall have
the right to work on any of the above-specified work theretofore used to produc-
tion by an employer under contract with the Amalgamated Lithographers of
America.
Each of the four contracts involved in this section was entered into with the ap-
proval and authorization of the Amalgamated within 6 months of the filing of charges.
The stipulation states and it is found that these contracts are "the current agreements
between the parties thereto and have not been modified or superseded by any agree-
ment, written or oral."
Conclusions
In their briefs, General Counsel and counsel for the Charging Association urge, in
effect, that the above-quoted "Trade Shop" provision must be found violative of
Section 8(e) of the Act because its language, while utilizing different syllables, con-
veys precisely the same offensive idea as that which the Board has already found
unlawful in both the Miami and San Francisco cases involving the Amalgamated .3
In his opposing brief, after admitting that "This clause was drawn after the Board's
decision in the Miami and San Francisco cases and was designed to eliminate features
which the Board had found objectionable," counsel for the Respondents contends
that all the new clause requires, as agreement, is for "the employer . . . to notify
the Union that he is going to make a change and to give the Union an opportunity
to talk to him." He adds, "The clause even limits discussion to areas reasonably
related to the problems which may be expected to arise," and, further, "Nor could
there be compelled arbitration because of the precondition that any change be
`mutually agreeable."'
In essence, the Board found in both cited cases the evil to be the agreement, in
the event of "outside" work, to reopen and terminate the existing contract. And,
without repeating here the Board's reasoning in full, it found that "Realistically no
employer would undertake to handle such work if to do so would confront him with
the possibility that his entire contract would be reopened for negotiation," and that
such "trade shop" clause was "tantamount" to an agreement "not to handle." (The
quotations are from the Miami case.)
It is true that the particular words "reopen" or "terminate" do not appear in the
"trade shop" clause now in issue. Their absence, however, in the opinion of the
Trial Examiner, fails to alter the nature of the deterrent implicit in the language
remaining. Whether the contract is formally reopened or not, it would seem that
the burdensome effect upon the employer is the same if, during its agreed-upon dura-
tion, he must negotiate "mutually agreeable changes in the contract" on such broad
subjects as "hours, apprentice ratios, overtime provisions or new clauses such as
establishment of severance pay funds or retraining programs." 4
An agreement expressly binding an employer to submit to such onerous condi-
tions if he takes certain action may reasonably be considered to be an implied agree-
ment not to indulge in that action .5
8 Respectively entitled Amalgamated Lithographers of America and Local 17. etc. (Em-
ploying Lithographers of Greater Miami, Florida , et at.), 130 NLRB 968; and Amalga-
mated Lithographers of America (Ind) and Local 17, etc (The Employing Lithographers,
etc.), 130 NLRB 985
`The Respondents' argument, quoted above, that "arbitration" could not be invoked
because of the "precondition that any change be 'mutually agreeable' " merely empha-
sizes and strengthens General Counsel's position that the employer himself must "enter
into perhaps long and protracted collective bargaining over terms and conditions which
are the heart of the contract and which have already been set and decided upon in
the existing contract "
s An agreement to "consider mutually agreeable changes in the (existing) contract"
trespasses far beyond mere "discussion" of a work change, as this Trial Examiner had
recent occasion to note, with Board approval, in Inca Manufacturing Division, Phelps
Dodge Copper Products Corporation , 135 NLRB 49 , although there another issue than
8(e) was involved. In that case an allegation of 8(a) (5) was dismissed upon the finding
that prior to signing a contract the employer had agreed only to notify and discuss with
the union certain work changes during the duration of the contract, and not, as the
union and General Counsel contended, to negotiate such changes to the point of "mutual
agreement."
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the Board said in the Miami case, "No particular words are necessary to estab-
lish an implied agreement." 6
Viewing the "trade shop" clause in its entirety-including the representation that
the employer limits its "outside" work to Amalgamated shops and the voiced opposi-
tion of the union to any dealing with non-Amalgamated shops, the Trial Examiner
concludes and finds that it constitutes an implied, but effective, agreement "not to
handle," and is therefore violative of Section 8(e) of the Act.7
C. "Recognition" or "Representation" clauses
The clauses under either of the above headings and challenged by General Counsel
appear in substantially similar language in the Chicago, Milwaukee, Seattle, Roch-
ester, and Hall contracts, and in addition to the Amalgamated involve Locals
Nos. 4, 45, 7, and 11. The clause under scrutiny is:
The Association and each employer agrees that in the event any of the jobs
or work under this contract are removed from the jurisdiction of the Amalga-
mated Lithographers of America, the Union may in its discretion, and only as
to such employer, either terminate this agreement or reopen it in all respects,
with the right to strike if the parties fail to agree upon a new contract.9
The Hall contract, as has been found with respect to the other four contracts,
was entered into within 6 months of the filing of charges, and with the approval
and authorization of the Amalgamated.
Conclusions
If, as counsel for the Respondents claims in his brief, all the above-quoted pro-
vision amounts to is "a clause to protect the unit from invasion by a rival union in-
the plant," it is indeed surprising that in the interest of verbal economy and clarity
of idea whoever drafted this clause-in contracts from coast to coast-did not use
equally simple words to express the intent. Furthermore, as counsel for the Charg-
ing Party points out, no contractual provision would be necessary to prevent such
an unlawful invasion in the plant.9
Were this clause to be appraised alone, and out of the context of other clauses of
the same contract the Trial Examiner might hesitate to ascribe an implication of
illegality to words also susceptible of an interpretation of innocence.
Viewing the clause in the light of other relevant sections of the same contract,
however, an exercise approved by the courts,10 it appears not difficult to determine
its real import. In the opinion of the Trial Examiner the foregoing clause is an
effective extension of the unlawful purpose found above to exist in the "trade shop"
clauses, with the penalty for violation even more clearly articulated. Where, in
the same contract, the employer represents that all of its "outside" work, if any,
is obtained from sources under contract with the Amalgamated, it is reasonably
apparent that the caveat of the "representation" clause, which also refers to removal
of work from the jurisdiction of the Amalgamated, includes "outside" work.
In short, the Trial Examiner concludes and finds that the "representation" clause,
for the same reasons set forth relative to the "trade shop" clause, constitutes an
implied agreement "not to handle," and is violative of Section 8(e) of the Act.
D. "No transfer of equipment" clause
The one clause here under attack by General Counsel is that appearing in the
Local No. 11 and Rochester, or Stecher, agreement, heretofore referred to, found
e Quoting from Black's Law Dictionary ( 4th ed. 1951 ), page 888, the Board in the
same decision said , "The term `implied ' is used in law as contrasted with 'express' when
the 'intention in regard to the subject matter is not manifested by explicit and direct
words, but is gathered by implication or necessary deduction from the circumstances, the
general language, or the conduct of the parties."'
7 The Respondents' claim, in counsel's brief, that the clause was designed to protect
"employees in the unit" from "loss of their jobs " is succinctly met, the Trial Examiner
believes, by General Counsel's counterargument : "It does not protect the unit against
work transferred out the contracting unit : it protects Amalgamated against work which
would be transferred out of shops represented by any of its locals."
8 The quoted language is from the Chicago contract. The Seattle and Hall contracts
lack the provision concerning the "right to strike."
O Weyerhaeuser Company, 134 NLRB 1371.
10Retail Clerks anon Local 770 et at. v. NL.R B., 296 F. 2d 368 (C.A.D.C.).
AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 1669
current with the 6-month period, and duly approved and authorized by the
Amalgamated.
Its text:
The Employer agrees that it will not physically transfer or deliver any of its
lithographic equipment to any other plant or employer in which it (or any of
its officers, directors or major stockholders) is interested financially, directly
or indirectly, nor to any other plant or employer producing any lithographic
work for it or on its behalf when the result is the avoiding of the terms of this
Agreement or the jurisdiction of the Amalgamated Lithographers of America
then in the event such an event occurs, the Union shall have the right to take
such action as provided under Section 1(c) of this agreement.
Section 1(c) referred to is the "Representation" clause, providing for the right to
terminate the contract and to strike, described in the immediately preceding section
of this report.
Conclusions
It is the contention of General Counsel and the Charging Party that this clause
constitutes an implicit agreement binding the employer not to do business with any
concern or person not under the jurisdiction of the Amalgamated.
There seems to be no question but that the transfer of equipment would involve
some sort of business transaction between employers, or between an employer and
a person.
Counsel for the Respondents urges that the purpose of the clause is to prevent the
employer from evading the provisions of the contract he has entered into by the
device of transferring his equipment out of plant, and "is designed to protect the
unit." He notes that corresponding clauses, in other contracts in issue here, are
not attacked as violative of the Act.
The language of the corresponding clause in the Chicago contract is as follows:
The employer agrees that he will not physically transfer any lithographic
equipment to any other plant for the purpose or (of) removing jobs or work
from under this agreement.
If the purpose of the Rochester clause is actually as claimed by counsel, then it
would appear that the same, simple language of the Chicago clause was equally
available for use in the Rochester agreement.
Especially because of the almost unlimited connotation of the word "implied"
in Section 8(e) of the Act, and upon consideration of the Rochester "transfer" clause
in the light of other clauses of the same contract heretofore found unlawful, the
Trial Examiner must agree with General Counsel. The language, under the cited
circumstances, reasonably implies an agreement that the employer will not do
business, in the transfer of equipment, with any concern or person not under juris-
diction of the Amalgamated. It therefore comes under the proscription of Section
8(e) of the Act.
E. The New York contract
There are two major issues raised by the complaint as to this agreement, entered
into in March 1960, between Local No. 1 and the New York Association employer-
members.
The first question is whether or not certain clauses are violative of Section 8(e)
of the Act, and the second is whether the 6-month bar prevents the Board from
finding the clauses unlawful.
There is no dispute that the contract containing the following clauses was entered
into by Local No. I with the approval and authorization of the Amalgamated, and
that the contract is due to terminate on April 30, 1962.
Trade Shop and Outside Work
23. (a) The parties agree that all of the terms of the contract have been
negotiated on the assumption that all lithographic production work will be
performed under union wages and conditions . In the event an employer en-
gages in production on any lithographic production work normally produced
in a lithographic plant in the jurisdiction of the Union (other than work prior
to the camera) which work shall have been made in any plant not under con-
tract with a local of the Amalgamated Lithographers of America and not
authorized to use the Union label of the Amalgamated Lithographers of
America, and provided the Employer engages in such production after notice
by the Union to the Employer, the Union in its discretion , by notice in writing
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to such Employer and the Association , and subject to the provisions of Section
35, may reopen the contract as to such Employer only , for negotiations as to
the whole or any part thereof . In the event of failure to agree on all terms
within 30 days after such notice the Union shall have the right forthwith to
terminate the contract as to such Employer only, by giving five days written
notice to such Employer and the Association.
(b) The foregoing subsection ( a) of this Section 23 and Section 24 shall
not be applicable to any lithographic production work theretofore used in pro-
duction by any Employer under contract with any local of the Amalgamated
Lithographers of America.
(c) Upon request by the shop delegate the Employer shall advise him of
the source of any lithographic production work brought into the plant from
the outside . Such request shall not interfere with the normal production of
the plant.
(d) The Union shall advise the Association or an Employer promptly upon
request whether a particular lithographic Employer has a contract entitling it
to use the label of the Amalgamated Lithographers of America.
(e) Finished lithographic press plates which are sent out of a plant (unless
for regraining ) shall have the Union label or the name of the plant in the
plate, except that as to plates heretofore made this may be done by otherwise
attaching the union label or name of the plant to the plate. Any negatives or
positives sent out of the plant and not bearing the Union label shall have the
Union label or name of the plant on the proofs, envelope, container or wrapper.
Individual Right of Employees
24. The parties agree that the Employer will not discharge , discipline or dis-
criminate against any employee because such employee refuses to handle any
lithographic production work (other than work prior to the camera) which
was made in a shop not under contract with any local of the Amalgamated
Lithographers of America and not authorized to use the union label of the
Amalgamated Lithographers of America or because such employee refuses to
handle any lithographic work described in paragraphs 21 and 23, the use of
which by the Employer gives the Union the right to re-open or terminate this
agreement as to such Employer.
There is small question as to the fact , here found , that the above-quoted language
of the "trade shop" and "individual right" clauses constitute , together or separately,
an effective agreement "not to handle ." They are substantially identical with clauses
covering the same subjects in both the Miami and San Francisco cases, cited above.
In his brief counsel for the Respondents states: "In view of the fact that the Board's
decisions in the Miami and San Francisco cases respecting the precise language of
Section 23 (a) are now before the Fifth and Ninth Circuits of the United States
Court of Appeals and as it would seem that the Trial Examiner is bound by the
Board 's decisions , we are not here briefing the legality of either clause of the Local
No. 1 contract set forth in the complaint."
The same counsel also states in his brief : "In view of the Board 's very recent
decisions in the I.A.M. and Teamsters cases, .11 there is no point in arguing here
that the unfair labor practice under Section 8(e) is the entering into the agreement,
not the maintaining of it."
In substance , the same counsel rests his contention that the complaint should be
dismissed as to the New York contract because: (1) General Counsel adduced no
proof at the hearing to support the complaint's allegation, denied in the answer,
that this contract has been maintained in "full force and effect"; and (2) because
of a "savings clause" of the original contract providing for "automatic elimination"
of the trade shop clause in the event it was determined to be in violation of the law
It is his further claim that such "elimination" occurred automatically with the
Board's decision in the Miami and San Francisco cases.
Disposing of the last point first: the same counsel establishes the lack of merit
in his argument by noting elsewhere in his brief that the Amalgamated has not ac-
cepted the Board's interpretation of the clauses in question but is contesting the two
decisions in courts of appeals.
n District No 9, International Association of Machinists (Greater St Louis Automotive
Trimmers and Upholsterers Association , Inc ), 134 NLRB 1354 ; Automotive Petroleum d
Allied Industries Employees Union. Local 618 (Greater St Louis Trimmers and Up-
holsterers Association, Inc.), 134 NLRB 1363
AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 1671
It is General Counsel's position that an exchange of letters, in evidence, between
Local No. 1 and certain employer-members of the New York Association indicate
clearly that "reaffirmation" of the contracts occurred in July 1961, well within the
10(b) period.
Three letters in evidence are from Edward Swayduck, president of Local No. 1.
The texts in substance are the same. They are addressed to officials of Snyder &
Black & Schlegel, Lutz & Sheinkman, and R. R. Heywood Company. The text:
You must now be aware of the fact that the association you are affiliated
with, LPNA , has taken action against Local 1 in an effort to reverse language
commitments in our contract which had been previously negotiated in good
faith and signed by yourself.
Just to keep the record straight as to our relationship with your company,
reneging on a contract is a very serious charge.
I am hereby requesting a statement from you within the next 48 hours as
to whether you are in accord with your association's action on this matter.
This information is absolutely necessary as to the policy of Local 1 must
be formulated based on action of your association.
If I do not receive an answer, I will have to assume that you are in accord
with the action of the LPNA.
Each of the employers in effect replied that it was opposed to the action of LPNA
(one of the Charging Parties in this proceeding) in bringing action challenging the
existing contract.
Minutes of a meeting of the Metropolitan Lithograph Association, Inc., held on
June 15, 1961, are also in evidence. Each of the three employers named above is
a member of this Association, as noted heretofore. On that date officials of the
Association voted to intervene in these proceedings. Nothing in the minutes indicates
any action by the Association disavowing any part of its contract with Local No. 1
or the Amalgamated.
In short, the Trial Examiner believes and finds that General Counsel has estab-
lished "reaffirmation" of the contract in question within the 10(b) period.
It follows, and is concluded and found, that the clauses set out above are violative
of Section 8(e) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the above-named Respondents have engaged in unfair labor
practices, the Trial Examiner will recommend that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Lithographers of America, its Locals Nos 45, 4, 1, 7, and 11; and
International Printing Pressmen Assistants' Union of North America, AFL-CIO,
are labor organizations within the meaning of Section 2(5) of the Act.
2. By entering into and/or maintaining and/or giving effect to contracts contain-
ing clauses described herein whereby the employer agrees to cease or refrain from
handling products of any other employer or to cease doing business with any other
person, the Respondent Unions Amalgamated and Locals 45, 4, 1, 7, and 11 and the
Respondent Employers Acme, Metropolitan, L & H, Craftsman, and Hall have en-
gaged in and are engaging in unfair labor practices within the meaning of Section
8(e) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent Unions Amal-
gamated Lithographers of America, and its Locals Nos. 45, 4, 1, 7, and 11, and the
Respondent Employers Acme Press, Incorporated, Metropolitan Press Printing Co.,
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., L & H Printing Company, Craftsman Press, Inc., and W. F. Hall Company,
their respective officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from entering into, actively maintaining, giving effect to, or
enforcing any contract or agreement, express or implied, whereby any employer
party ceases or refrains, or agrees to cease or refrain, from handling, using, selling,
transporting, or otherwise dealing in any of the products of any other employer, or
from doing business with any other person.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post at appropriate places (union meeting halls in the case of the Unions,
places of business in the case of the Employers), copies of the notices attached
hereto marked "Appendix A" and "Appendix B." 12 Copies of said notices, to be
furnished by the Regional Director for the Second Region, shall, after being duly
signed by the Respondents' representatives, be posted by the respective Respondent
or Respondents immediately upon its receipt, and be maintained for a period of 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees or members are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for the Second Region signed copies of
Appendix A for posting, if the employers agree, by members of the Chicago, Mil-
waukee, and New York Associations and the Employer Respondents herein involved,
in places where notices to employees are customarily posted. Copies of said notice,
to be furnished by the Regional Director, shall, after being signed by the Respondents,
be forthwith returned to the Regional Director for disposition by him.
(c) Notify the said Regional Director, in writing, within 20 days from the date
of the service of this Intermediate Report and Recommended Order, what steps the
Respondents have taken to comply herewith.13
12 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
13 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondents have taken to comply herewith "
APPENDIX A
NOTICE TO ALL OUR MEMBERS, TO ALL EMPLOYEES OF ACME PRESS INCORPORATED,
METROPOLITAN PRESS PRINTING CO., INC., L & H PRINTING COMPANY, INC.,
CRAFTSMAN PRESS, INC., AND W. F. HALL COMPANY, AND TO ALL EMPLOYEES OF
EMPLOYER-MEMBERS OF CHICAGO LITHOGRAPHERS ASSOCIATION, MILWAUKEE
LITHOGRAPHERS ASSOCIATION, AND METROPOLITAN LITHOGRAPH ASSOCIATION, INC.
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT enter into, actively maintain, give effect to, or enforce any
contract or agreement, express or implied, with any employer whereby such
employer ceases or refrains, or agrees to cease or refrain, from handling, using,
selling, transporting, or otherwise dealing in any of the products of any other
employer, or from doing business with any other person.
AMALGAMATED LITHOGRAPHERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
LOCAL No. 45, AMALGAMATED LITHOGRAPHERS OF AMERICA,
I Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
LOCAL No. 4, AMALGAMATED LITHOGRAPHERS OF AMERICA,
Labor Organization.
Dated--------- ---------- By-------------------------------------------
(Representative) (Title)
AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 1673
LocAL No. 1, AMALGAMATED LITHOGRAPHERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
LOCAL No. 7, AMALGAMATED LITHOGRAPHERS OF AMERICA,
Labor Organization.
Dated------------ ------- By-------------------------------------------
(Representative) (Title)
LOCAL No. 11, AMALGAMATED LITHOGRAPHERS OF AMERICA,
Labor Organization.
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.
Employees may communicate directly with the Board's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone Number, Plaza 1-5500, if they have any
question concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT enter into, actively maintain, give effect to, or enforce any
contract or agreement, express or implied, with Amalgamated Lithographers
of America, any local of said Amalgamated, or any other labor organization,
whereby we cease or refrain, or agree to cease or refrain, from handling, using,
selling, transporting, or otherwise dealing in any of the products of any other
employer, or from doing business with any other person.
ACME PRESS, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
METROPOLITAN PRESS PRINTING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
L & H PRINTING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
CRAFTSMAN PRESS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
W. F. HALL 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.
Employees may communicate directly with the Board's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone Number, Plaza 1-5500, if they have any
question concerning this notice or compliance with its provisions.