John S. Swift Co., Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1961

133 N.L.R.B. 185 (N.L.R.B. 1961)

JOHN S. SWIFT COMPANY, INC. 185
John S. Swift Company, Inc. and Local No. 4, Amalgamated
Lithographers of America .' Case No. 13-CA-3928. Septem-
ber 15, 1961
DECISION AND ORDER
Upon charges duly filed by Local No. 4, Amalgamated Lithogra-
phers of America, AFL-CIO, herein called the Union, the General
Counsel of the National Labor Relations Board, by the Regional Di-
rector for the Thirteenth Region, issued a complaint dated January
12, 1961, against John S. Swift Company, Inc., herein called the Re-
spondent, alleging that the Respondent had engaged in and was en-
gaging in unfair labor practices within the meaning of Section
8(a.) (1) and (5) and and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge, complaint, and
notice of hearing before a Trial Examiner were duly served upon
the Respondent and the Charging Party.
With respect to the unfair labor practices, the complaint alleges, in
substance, that the Union was and is the exclusive representative of
all lithographic production employees of the Respondent Employer
in an appropriate unit, and that on June 22, 1960, and at all times
thereafter, Respondent unlawfully refused to bargain collectively
with the Union.
The Respondent's answer, filed January 18, 1961, admits certain
jurisdictional and factual allegations of the complaint, but denies the
commission of any unfair labor practices.
On January 27, 1961, all parties to this proceeding entered into a
stipulation of facts, and on February 2, 1961, jointly moved to transfer
this proceeding directly to the Board for findings of fact, conclusions
of law, and decision and order. The motion states that the parties
have waived their rights to a hearing before a Trial Examiner, and
to the issuance of an Intermediate Report. The motion also provides
that the charge, complaint, answer, and stipulation of facts constitute
the entire record in the case.
On February 14, 1961, the Board granted the parties' motion to
transfer the case to the Board. Briefs were thereafter filed by the
General Counsel, the Union, and the Respondent. Upon the basis of
the parties' stipulation of facts, the briefs, and the entire record in
the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Missouri corporation, is engaged in the printing
and processing of lithographic materials at its Chicago, Illinois, plant.
1 On March 10 , 1961 , the Union filed a motion to correct the documents in this case by
deleting the designation "AFL-CIO" following the Union's name No objection having
been filed by any of the parties, the motion was granted on March 28, 1961
133 NLRB No. 15.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the calendar year 1960, a representative period, Respondent
shipped finished products valued in excess of $50,000 directly to points
outside the State of Illinois.
The Respondent admits, and we find, that it is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 4, Amalgamated Lithographers of America , is a labor
organization as defined in Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The facts as stipulated show that the Union was certified as bar-
gaining agent for all lithographic production employees at Respond-
ent's Chicago plant on June 1, 1956.2 Beginning in July 1956, the
Union and Respondent carried on extensive bargaining, but no con-
tract was negotiated. On March 15, 1957, the Union filed charges,
and on July 16, 1958 a complaint issued, alleging that Respondent
had engaged in certain unfair labor practices at various times in
1956 and early 1957,3 inter alia, by (1) refusing and failing to furnish
the Union with certain wage data, (2) refusing and failing to furnish
the Union with certain information regarding Respondent's health
and welfare plan, and (3) refusing at certain times to meet with the
Union for the purpose of bargaining.
On August 10, 1959, the Board issued its Decision and Order,' find-
ing, inter alia,5 that Respondent had violated Section 8(a) (5) and
(1) of the Act by refusing to supply the Union with the requested
data as to wages and as to its health and welfare plan. The Board
ordered Respondent to "Cease and desist from . . . refusing to bar-
gain . . . by refusing and failing to furnish" data as to wage rates
and as to Respondent's health and welfare plan; affirmatively the
Board ordered that Respondent "upon request, bargain collectively
... by furnishing" said data.
2 The complaint alleges , and Respondent admits , that the appropriate unit consists of
all lithographic production employees at the Respondent 's Chicago , Illinois , plant, in-
cluding offset pressmen , offset pressmen helpers and feeders and their apprentices, offset
strippers , offset spotters and opaquers, offset cameramen , offset platemakers and appren-
tices, pasteupmen , lithographic artists, film filer and negative storagemen , but excluding
lithographic typists and stockhandlers , office clerical employees , guards , professional em-
ployees , and supervisors as defined in the Act
3 The complaint also alleged violations of Section 8(a)(3) and (1) In the discharge of
26 employees , and two instances of interrogation in violation of Section 8(a) (1)
4John S Swift Company, Inc, 124 NLRB 394
'The Board dismissed certain specific allegations that Respondent did not bargain in
good faith concerning a health and welfare plan , and that Respondent acted in bad faith
in failing to meet with the Union . No violation of Section 8(a) (3) was found in the
discharge of 20 employees for engaging in a partial strike by refusing to work overtime
A violation of Section 8(a) (3) was found in the discharge of six other employees.
JOHN S. SWIFT COMPANY, INC. 187
On May 2, 1960, the Court of Appeals for the Seventh Circuit en-
forced, inter alia, the Section 8(a) (5) aspects of the Board's Order'
The court ordered Respondent to "cease and desist from . . . refusing
and failing to furnish the Union with" the data, and affirmatively,
"furnish the Union with" the data.
Following the court enforcement, the Union on June 22, 1960, re-
quested Respondent to supply it with the data in question. On July 8
Respondent sent the Union certain data which was current only to
June 4, 1957 (i.e., current to the end of the Union's certification year),
and on September 12 informed the Union that, in Respondent's
opinion, it had complied with all facets of the court's Order. On
October 12, 1960, the Union requested that Respondent meet with it
for collective bargaining, and that it supply the Union with current
data. Respondent refused, alleging that the Union had lost its ma-
jority. Thereafter, on November 4, the Union filed the charges in
this case, which, however, the Regional Director dismissed. The
Union thereupon appealed the dismissal to the General Counsel, who
overruled the Regional Director and ordered that a complaint should
be issued. The complaint, which issued on January 12, 1961, alleges
that Respondent has violated Section 8(a) (5) by a general refusal
to bargain with the Union as well as a failure and refusal to supply
the Union with current data requested.
Respondent contends that it need not bargain with the Union be-
cause the Union has lost its majority. It asserts that by valid dis-
charge of the 20 employees for refusing to work overtime, the Union
lost its majority, and that the Union's right to bargain terminated 1
year after certification. However, it has nowhere been established
that the Union lost its majority. Even after the discharge of the 20
employees, the Union may well have maintained its majority. In this
context, the only effective test of any doubt as to union majority is a
Board election 7 During the certification year, when the discharges
took place, the Union's majority is presumed, absent unusual circum-
stances, and these discharges do not involve unusual circumstances
within the limited exception to the rule.' Accordingly, we find no
merit in Respondent's contention that the Union lost its majority.
Respondent limited itself under the Board and court Order to sup-
plying data only as of June 4, 1957. This plainly was useless to the
Union in 1960. Respondent impliedly concedes that if it was re-
quired to bargain with the Union in 1960, the data requested as to
names, classification, and wage rates, and as to Respondent's health
and welfare plan, had to be current. The Board has often held that
8 The court enforced the entire case with the exception of one Section 8(a) (3) discharge
and one instance of interrogation
7 Ray Brooks v. N L.R B , 348 U S . 96, 103
8 Ray Brooks v. N.L R B , supra ; N L R B. v. P. Lorillard Company , 314 U S 512
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employer must make every reasonable effort to supply the union
with the requested relevant information, and that it must be as precise
and as current as is available.' It is only reasonable to assume that
the Board and the court did not have the intention of requiring a
meaningless act, i.e., that obsolete data be furnished.
Necessarily, the Section 8(a) (5) violations found by the Board and
enforced by the court constitute a conclusion that Respondent, by re-
fusing to supply data in the circumstances of the case, had failed to
bargain in good faith within the meaning of Section 8(d) and
8 (a) (5) of the Act.10 The Board determined, and the court concurred,
that the data was relevant and necessary to the Union in order that
it might carry on intelligent bargaining with Respondent. Under the
allegations of the instant complaint, we find that, by refusing to sup-
ply the required data on a current basis, Respondent has deprived the
Union of the means by which it could intelligently bargain with the
Respondent as contemplated by the Act.l"
Respondent contends that it was bound to bargain with the Union
only during the year immediately following the date of the Union's
certification as exclusive bargaining representative, which period ter-
minated on June 1, 1957. It is a settled determination of the Board
that it best effectuates the policies of the Act to require employers to
bargain with the union shown to have had a majority on the date of
the employers' unlawful refusal to bargain.12 As previously found by
the Board and the court, Respondent had unlawfully refused to bar-
gain with the Union on and after September 19, 1956. Where litiga-
tion of unfair labor practices intervenes and prevents the certified
agent from enjoying a free period of a year after certification to
establish bargaining relations, it is entitled to resume its free period
after termination of the litigation.13
Particularly in view of the above, it is clear that, even apart from its
failure properly to comply with the Board's Order to supply data as
enforced by the court,"' Respondent's obligation to bargain under the
See American Smelting and Refining Company , Tacoma Plant, 115 NLRB 55, 60.
1u In N L R .B. v. Truitt Mfg Co , 351 U.S. 149, involving a refusal to supply data after
a company plea of inability to pay, the Supreme Court said : "Each case [involving an
alleged Section 8(a) (5) violation ] must turn upon its particular facts . The inquiry must
always be whether or not under the circumstances of the particular case the statutory
obligation to bargain in good faith has been met . . . We conclude that there is sup-
port in the record for the conclusion of the Board here that Respondent did not bargain
in good faith . . " See also, N L.R B v American National Insurance Co , 343 U S
395, 409-410.
11 See F . W Woolworth Co, 109 NLRB 196; American Smelting and Refining Company,
supra
12 N.L R.B v. P. Lorillard Company, supra
13 Arlington -Fairfax Broadcasting Company, Inc., 95 NLRB 846, 860 , enfd. 204 F. 2d
128 (C.A. 4 ) ; Semi-Steel Ca8ting Company, 88 NLRB 609, 610.
14 The Regional Director stated , in his Closing Compliance Report, that : "It Is the
Compliance Officer's opinion that the Company satisfied this requirement ( the Court's
Order ) by furnishing information up to June 4, 1957 " He states , in his letter to the
parties of September 30, 1960, that : "After full consideration of . . . the case , it appears
that the Respondent has satisfactorily complied with the . . requirements of the Court
JOHN S. SWIFT COMPANY, INC. 189
Act continued after the court's decree, and that Respondent failed to
fulfill such obligation. Thus, we find that Respondent violated Sec-
tion 8 (a) (5) after court enforcement by generally refusing to bargain
with the Union and by continuing its refusal and failure to supply,
upon the Union's request, current data necessary for bargaining. -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above,
occurring in connection with its operations as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and • the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
that it take certain affirmative action designed to effectuate the policies
of the Act.
Having found that the Respondent refused to bargain collectively
with the Union as the exclusive representative of employees in the ap-
propriate unit, we shall order that the Respondent furnish the Union,
upon request, with current information as to names, classification, and
wage rates of the employees in the appropriate unit, and as to Re-
spondent's health and welfare plan, and that the Respondent bargain
collectively with the Union, upon request, as the statutory representa-
tive of the employees in that unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Local No. 4, Amalgamated Lithographers of America, is a labor
organization as defined in Section 2 (5) of the Act.
2. All lithographic production employees at the Respondent's Chi-
cago, Illinois plant, including offset pressmen, offset pressmen helpers
and feeders and their apprentices, offset strippers, offset spotters and
opaquers, offset cameramen, offset platemakers and apprentices, paste-
upmen, lithographic artists, film filer and negative storagemen, but
excluding lithographic typists and stockhandlers, office clerical em-
ployees, guards, professional employees, and supervisors as defined in
Decree . . . and . . the files in this matter are hereby closed and will be continued as
a closed case 80 long as the present status of compliance continues " [Emphasis sup-
plied ] The General Counsel reversed the Regional Director's dismissal of the charges in
the present case, and the issuance of the complaint necessarily overrode the conditional
compliance report. The failure to bargain generally and the refusal to supply current
data changed the tentative compliance conditions and effectively removed Respondent from
any status of compliance. ,
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. The above-named labor organization was on June 1, 1956, and has
been at all times thereafter the exclusive representative of all the em-
ployees in the above-described unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain with the above-named labor organization
by refusing to supply it with current information as to names, classi-
fication, and wage rates of the employees in the appropriate unit, and
as to Respondent's health and welfare plan, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
5. By refusing to bargain collectively with the above-named labor
organization, as the exclusive representative of all the employees in
the unit described above, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section
8(a) (5) of the Act.
6. By the aforesaid conduct, the Respondent has interfered with,
restrained, and coerced employees in the exercise, of rights guaran-
teed by Section 7 of the Act, and has thereby engaged in, and is en-
gaging in unfair labor practices within the meaning of Section
8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, John S. Swift Company,
Inc., Chicago, Illinois, and its officers, agents, successors and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local No. 5, Amalgam-
ated Lithographers of America, by refusing to supply said labor or-
ganization with current information as to names, classification, and
wage rates of the employees in the appropriate unit, and as to Respond-
ent's health and welfare plan.
(b) Refusing to bargain collectively with Local No. 4, Amalgam-
ated Lithographers of America, as the exclusive bargaining repre-
sentative of the employees in the following appropriate unit :
All lithographic production employees at the Respondent's Chicago,
Illinois, plant, including offset pressmen, offset pressmen helpers and
feeders and their apprentices, offset strippers, offset spotters and
opaquers, offset artists, film filer and negative storage men, but ex-
JOHN S. SWIFT COMPANY, INC. 191
cluding lithographic typists and stockhandlers, office clerical em-
ployees, guards, professional employees, and supervisors as defined
in the Act.
(c) In any like or related manner, interfering with, restraining or
coercing employees in the exercise of the rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, furnish Local No. 4, Amalgamated Lithog-
raphers of America, with current information as to names, classifi-
cation, and wage rates of the employees in the appropriate unit, and
as to Respondent's health and welfare plan.
(b) Upon request, bargain collectively with Local No. 4, Amalgam-
ated Lithographers of America, as the exclusive representative of
the employees in the appropriate unit, as found above, and, if an
understanding is reached, embody such understanding' in a signed
agreement.
(c) Post at its Chicago, Illinois, plant, copies of the notice attached
hereto marked "Appendix:" 15 Copies of such notice, to be fur-
nished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof, in
conspicuous places including all places where notices to employees are
customarily posted, and maintained by it for at least 60 consecutive
days thereafter. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
u In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
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 refuse to bargain collectively with Local No. 4,
Amalgamated Lithographers of America, by refusing to supply
said labor organization with current information as to names,
classification, and wage rates of the employees in the appropriate
unit, or as to Respondent's health and welfare plan.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to bargain collectively with Local No. 4,
Amalgamated Lithographers of America , as the exclusive bar-
gaining representative of the employees in the following appro-
priate unit :
All lithographic production employees at the Respondent's
Chicago, Illinois, plant including offset pressmen, offset
pressmen helpers and feeders and their apprentices, offset
strippers , offset spotters and opaquers , offset cameramen,
offset platemakers and apprentices , pasteupmen , lithographic
artists, film filer and negative storagemen , but excluding
lithographic typists and stockhandlers , office clerical em-
ployees, guards, professional employees, and supervisors as
defined in the Act.
WE WILL, upon request, furnish Local No . 4, Amalgamated
Lithographers of America , with current information as to names,
classification , and wage rates of the employees in the appropriate
unit, and as to Respondent 's health and welfare plan.
WE WILL , upon request, bargain collectively with Local No. 4,
Amalgamated Lithographers of America , as the exclusive bar-
gaining representative of the employees in the appropriate unit,
and, if an understanding is reached , embody such understanding
in a signed agreement.
WE WILL NOT, in any like or related manner, interfere with,
restrain , or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
JOHN S. SWIFT COMPANY, INC.,
Employer.
Dated- --------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
E. W. Bliss Company and Patternmakers League of North
America, Grand Rapids Association , AFL-CIO, Petitioner.
Case No. 7-RC-4894. September 15, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Burton R. Horowitz, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
133 NLRB No. 29.