Lawrence Typographical Union No. 570

National Labor Relations Board - Board Decisions

Jun 6, 1966

158 N.L.R.B. 1332 (N.L.R.B. 1966)

1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, if requested by United Mine Workers of America , revoke the
unilateral change in wages instituted by us on or about September 1, 1965,
affecting employees in the ,appropriate unit.
All our employees are free to become or remain members of any labor organiza-
tion, except to the extent that this right may be affected by a lawful agreement
requiring membership in a labor organization as a condition of employment.
MOSSGROVE MINING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered- by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 1536
Federal Building , 1000 Liberty Avenue, Pittsburgh , Pennsylvania , Telephone No.
644-2969.
Lawrence Typographical Union No. 570, affiliated with the Inter-
national Typographical Union , AFL-CIO and Kansas Color
Press, Inc. Case No. 17-CP-58. June 6,1966
DECISION AND ORDER
On January 18, 1965, Trial Examiner Louis Libbin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had violated Section 8(b) (7) (B) of the National Labor Rela-
tions Act, as amended, by picketing with an object of recognition or
bargaining within -a year of a valid election which it had lost,' as
set forth in the attached Trial Examiner's Decision. The Trial Ex-
aminer recommended a remedial order requiring the Respondent to
cease and desist from these unfair labor practices and to take certain
affirmative action.
Respondent filed timely exceptions l to the Trial Examiner's De-
cision, contesting primarily the rulings of the Trial Examiner at
the hearing barring issues concerning the validity of the election
from litigation in this case. Subsequent to the Respondent's excep-
tions the General Counsel, on May 24, 1965, filed a motion in which
he requested that the proceeding be remanded for the purpose of
reopening the record to receive evidence concerning the validity of
the election. On June 1, 1965, the Respondent filed an additional
memorandum in which, inter alia, it supported the General Counsel's
motion. The Charging Party did not oppose the motion.
In view of the motion, the exceptions, and the absence of opposi-
tion from the Charging Party, the Board thereupon issued an order 3
1 This election had been held by the National Labor Relations Board in consolidated
Cases Nos. 17-RD-235 and 17-RD-236.
2 The Charging Party's motion to strike these exceptions was denied by the Board on
February 23, 1965.
a This order, which was not published in printed volumes of Board Decisions and Orders,
was issued on September 16, 1965.
158 NLRB No. 134.
LAWRENCE TYPOGRAPHICAL UNION NO. 570 1333
remanding the proceeding to the same Trial Examiner to take evi-
dence in respect to certain matters concerning the validity of the
election and to snake such findings, conclusions, and recommenda-
tions as were warranted. The Board, however, limited its remand-
to-those election issues which. Respondent had been precluded from
litigating in the election case itself.4 The issues to which the remand
was limited dealt with Respondent's claim that the Charging Party
had unlawfully instigated the election petitions, and with Respond-
ent's further claim that the strikers and not. their replacements
should have been permitted to vote in the election allegedly because
the strikers were unfair labor practice strikers whose voting rights
continued throughout the, length of the strike and extinguished any
voting rights of replacements.
After holding ^a hearing pursuant to the order of remand, Trial
Examiner Libbin issued * his Supplemental Decision dated Febru-
ary 11, 1966 , in which he found, contrary to Respondent 's contentions,
that the Charging Party did not instigate the election petitions,
that the strikers were not unfair labor practice strikers, and that
the election was valid, as^ set forth in his :attached Supplemental
Decision. He again recommended that the Board adopt the remedial
order, which he had recommended in his original Decision, requiring
Respondent to cease and desist from its unfair. labor practices and
take' certain affirmative action. Thereafter, Respondent -filed ex-
ceptions to the Supplemental Decision and a a supporting,brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, :as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkiiis].
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed.5
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, dated January 18, 1965', his Supple-
mental Decision of February 11, 1966, the exceptions and briefs, and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner. '
[The Board- adopted the Trial Examiner's Recommended Order.]
In its exceptions and supporting brief Respondent again sought to raise certain other
election issues which had been considered and decided against it in the election case itself.
The Board , however, specifically excluded these other election issues from the scope of
the remand in accordance with its usual policy not to permit relitigation in an unfair labor
practice proceeding of issues which it has previously considered and disposed of in a
representation case involving the same parties. E .g., Air Control Products of St. Peters-
burg, Inc., 139 NLRB 413, 415, enfd 335 F. 2d 245 (C A. 5).
5 Whatever prejudice Respondent may have suffered because of the Trial Examiner's
rulings at the original hearing with respect to election issues was cured by the reopening
of the proceeding.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL. EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on August 11, 1964, by Kansas Color Press, Inc., herein
sometimes called the Company or the Employer, the General Counsel of the
National Labor Relations Board, by the Regional Director for Region 17 (Kansas
City, Missouri), issued a complaint, dated September 24, 1964, against Lawrence
'Typographical Union No. 570, affiliated with the International Typographical
Union, AFL-CIO, herein called the Respondent or the Union, alleging that
Respondent had engaged and was engaging in unfair labor ' practices within the
meaning of Sections 8(b)(7)(B) and 2(6) and (7) of the National Labor Rela-
tions Act, as amended, herein called the Act. In its duly filed answer, Respond-
ent admitted certain allegations of the complaint, denied all unfair labor practices
allegations , and set up certain affirmative defenses.
Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin
at Kansas City, Missouri, on October 29, 1964. All parties were represented at
and participated in the hearing. I hereby grant Respondent's motion, which I
received on November 10, 1964, and to which an opposition was filed by the Gen-
eral Counsel, that I take judicial notice of the transcript in Kansas Color Press,
Inc., Cases Nos. 17-RD-235 and 17-RD-236. On December 4, 1964, the General
Counsel and the Respondent filed briefs, which I have fully considered.
For the reasons hereinafter indicated , I find that Respondent violated . Section
8(b)(7)(B ) of the Act.
Upon the entire record I in the case, and from my observation of the witnesses,
I make the following:
FINDINGS bF FACT
1. THE, BUSINESS OF THE COMPANY
Kansas Color Press, Inc., a Kansas corporation, maintains a plant in Lawrence,
Kansas, where it is engaged in the printing of magazines , catalogues , and circulars.
It annually purchases paper, valued in excess of $100,000, directly from points
located outside the State of Kansas , and annually ships goods and materials , valued
in excess of $100,000, directly to points located outside the State of Kansas.
Upon the above-admitted facts, I find that the Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, the record shows, and I find, that
Lawrence Typographical Union No. 570, affiliated with the International Typo-
graphical Union, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
The Company has had contractual relations with Respondent Union as the bar-
gaining representative of the Company's composing room and mailing room employ-
ees. The last contract expired on May 31, 1961.
After unsuccessful negotiations for a new contract, Respondent struck on Sep-
tember 19, 1961, and picketed the plant with on-strike signs. Efforts to negotiate a
satisfactory contract continued during the strike. Meanwhile, the Company con-
tinued to maintain production with persons who were not members of Respondent
Union and who were employed to do the work formerly done by the striking com-
posing room and mailing room employees.
On January 15, 1963, a decertification petition was filed with the Board's
Regional Office, alleging that the Respondent Union was no longer the bargaining
representative for the mailing room employees (Case No. 17-RD-235).
I On December 9 and 19, 1964, Respondent and the General Counsel, respectively, filed
separate motions to correct the typewritten transcript of testimony in designated specific
respects . No objections have been filed to the granting of these motions . Accordingly,
I hereby grant both motions, and make the documents part of the record in this proceeding.
Both motions have been placed in the official exhibit folder as General Counsel's Exhibit
22 'and Respondent's Exhibit 1, respectively.
LAWRENCE TYPOGRAPHICAL UNION NO. 570 1335
The last meeting between the representatives of Respondent Union and of the
Company was held on January 18, 1963 . The Company's attorney stated that they
had been notified by the Board of the filing of the above decertification petition
with respect to the employees in the mailing room, that they would therefore be
unable to negotiate for that department but would be able to negotiate with respect
to the composing room employees , and that in his opinion it would be illegal to
negotiate for the mailing room employees . The attorneys for Respondent Union
replied that their past contract had covered both departments and that it would
therefore be legal to continue to negotiate for both departments . As the parties
were unable to agree on this issue , the meeting broke up without any negotiations
at all. , No further negotiating sessions were held between the Respondent and the
Company.
On January 21, 1963, another decertification petition was filed with the Board's
Regional Office , alleging that Respondent Union was no longer the bargaining repre-
sentative for the composing room employees (Case No. 17-RD-236).
On February 12, 1963 , the Respondent filed with , the Board 's Regional Office a
charge, alleging that the Company had violated Section 8 ( a)(1), (2), and (5) of
the Act by refusing to bargain in good faith with the Union and by initiating and
fostering the two decertification petitions (Case No. 17-CA-2118). By letter dated
March 26, 1963 , the Regional Director informed Respondent Union that its charges
had been "carefully investigated, and considered ," that "it appears that the evidence
is insufficient to establish violations ,',' and that he, was therefore "refusing to issue
Complaint in this matter." On April 26 , 1963, , Respondent Union filed an appeal,
consisting of 10 typewritten pages, with the General Counsel in Washington, D.C.,
from the Regional Director 's refusal to issue: a complaint, in that case . This appeal
was considered , and the ruling of the Regional Director was ,sustained by the Gen-
eral Counsel on July 17, 1963. On July 23 , 1963, the Respondent Union requested
the General Counsel to reconsider his decision . In a reply letter of August 12,
1963, the General Counsel advised that "after careful consideration" he saw no
reason to depart from his previous decision , pointing out that he remained of the
view "that , under all the circumstances , the evidence was insufficient to establish
that the Company 's 'refusal to bargain was based upon any reason other than its
good-faith doubt of. the Union's majority status."
Meanwhile, a hearing on the two decertification petitions was held on May 7,
1963. The Company and the Respondent participated in this hearing and, were
represented by the same counsel who appeared in the instant hearing. At that
hearing, in response to a request by Respondent 's Attorney Kaufman that the Com-
pany state what its interest was 'in the decertification proceeding , the Company's
Attorney Ellison made the following statement:
We understand that under this law that the Kansas Color Press has a duty to
bargain with that union which represents a majority of its employees and that
it has the negative duty to treat with none other . The I.T.U., the union
involved in this proceeding is proposing that we bargain with it as the Tepre-
sentative of our mailing room and composing room employees.
We also understand that a representative group of the employees in each of
those units filed with this Board a petition in which they stated in some effect
that they did not want to be represented by this union, that they did not want
the Company to bargain with this union , and we understand that all they are
asking for under the law is an opportunity to have an election to determine
whether they do or do not want to be represented by I.T.U.
We as a company must know whether we have a duty to bargain with a cer-
tain union or whether our employees , a majority of our employees , prefer that
we not bargain with a certain union. We cannot bargain with I.T.U. at this
time and have so told them that we would not until this representation matter,
this decertification matter, has been resolved . [Emphasis supplied.]
The uncertainty of this situation has caused considerable confusion. The
Company is interested in eliminating this confusion as quickly as possible. We
believe that our employees should have a right to express their wishes by
secret ballot .' We are at the hearing because we have been made a party and,
in effect , we have been summoned here by the Labor Board, and that's the
reason we are here.
On June 7, 1963, the Regional Director for Region 17 of the Board issued a
Decision and Direction of Election , in which he upheld the rulings of the Hearing
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Officer and directed that an election be held in a unit of composing room and mail-
ing room employees, with the usual exclusions, to determine whether they desired
to be represented for collective-bargaining purposes by the Respondent Union.
Thereafter, the Respondent Union filed with the Board in Washington, D.C., a
28-page request for review of the Regional Director's action and that the direc-
tion of the decertification election be set aside. In its request, the Respondent
urged (1) that it should have been permitted to adduce evidence to show that the
Company fostered the decertification petitions, (2) that Petitioners should not have
been permitted to amend the decertification petitions with respect to the unit, and
(3) that the Company should not have been permitted to participate as a party in
the decertification hearing . This request for review was denied by the Board on
July 23, 1963, in a telegram stating that "it raises no substantial issues warranting
review."
On August 28, 1963, the Regional Director for Region 17 conducted an election
among the employees in the designated unit. Respondent was the only labor
organization on the ballot. A total of 68 ballots were cast, all of which were chal-
lenged . The Company challenged the votes cast by the strikers, and the Respond-
ent Union challenged the votes cast by the employees working in the composing
room and mailing room. On September 3, 1963, the Respondent Union filed timely
objections to the election, as listed in the margin.2
On January 29, 1964, the Regional Director issued a Supplemental Decision and
Order, in which he stated that "the objections and the challenged ballots have been
administratively investigated." On the basis of that investigation, the Regional
Director found that objections 1, 3, 4, and 6 were without merit and that objections
2 and 5 related to the eligibility status of the individual concerned, an issue with
which be dealt in another portion of his report. He accordingly overruled the
Respondent's objections to the election. With respect to the challenged ballots, the
Company and the Union had each challenged half of the 68 ballots cast. He
further concluded, on the basis of his investigation, that the strike was an economic
strike and the strikers economic strikers, that the 34 strikers challenged by the
Company were replaced by the 34 employees challenged by the Respondent Union
-and that the latter were employed as regular permanent employees. The Regional
Director therefore ordered that the challenged ballots of the replacements "be
opened and counted at a time, date, and place to be announced later, and that an
appropriate certification issue based upon the results of said counting."
On February 17, 1964, Respondent Union requested the Regional Director to
reconsider his Supplemental Decision and Order in certain stated respects. On
February 28, 1964, the Regional Director denied this request, after giving "careful
attention" to it, pointing out that Respondent's request "does not contain new mate-
rial or allude to evidence not heretofore considered."
On March 10, 1964, Respondent Union filed with the Board in Washington, D.C.,
a request for review of Regional Director's Supplemental Decision. In this request,
consisting of 20 typewritten pages, Respondent Union urged (1) that as a matter of
policy the Board not apply its rule of estoppel, relied on by the Regional Director,
in a decertification case to bar the incumbent union from objecting to an election
on the ground of employer misconduct before the filing of the petition; (2) that
the Board reconsider its decision in Times Square Stores Corporation, 79 NLRB
361, holding that strikers will be conclusively presumed to be economic strikers
unless the contrary has previously been established in an unfair labor practice pro-
ceeding; (3) that the Times Square doctrine was in any event inapplicable to the
instant case; and (4) that the Regional Director erred in denying the strikers the
right to vote and in other eligibility considerations.
On May 28, 1964, the Board, by telegram, "ordered that the Union's request for
review of the Regional Director's Supplemental Decision and Order be and it
hereby is denied as it raises no substantial issues warranting review." On June 11,
2 These objections alleged (1) that since and prior to the filing of the decertification
petition, "the employer by its unfair labor practices has restrained and coerced members
of the bargaining unit on strike in their rights under the Act"; (2) the challenges of the
strikers by the Company were improper and not for just cause; (3) the Company was not
a proper party to challenge voters; (4) the Employer, through its agents, coerced Thelma
Dietz and prevented her from casting a ballot in the election; (5) the "ballots of the
people who voted in the plant should not be counted as they were not permanent replace-
ments for economic strikers but rather were temporary and casual employees and have
taken the jobs of unfair labor practice strikers"; and (6) the direction of the election
was contrary to law.
LAWRENCE TYPOGRAPHICAL UNION NO. 570 1337
1964 , the Board , by telegram , denied the Union's petition for rehearing on its
request for review of the Regional Director 's Supplemental Decision "as it raises
no matters not previously considered."
Thereafter the Regional Director opened the ballots of the challenged replace-
ments and on August 3, 1964 , issued a Certification of Results of Election, in
which he "certified that a majority of the valid ballots has not been cast for any
labor organization on the ballot , and that no such organization is the exclusive
representative of all the employees , in the unit herein involved , within the meaning
of Section 9(a) of the National Labor Relations Act."
The Respondent Union's picketing of the Company 's premises with on-strike
signs, which began long before the election , continued without interruption after
August 3, 1964, and was still in progress at the time of the hearing in the instant
case.
B. Issues and contentions
Section 8 ( b)(7)(B) of the Act makes it an unfair labor practice for a labor
organization or its agents:
to picket or cause to be picketed , or threaten to picket or cause to be picketed,
any employer where an object thereof is forcing or requiring an employer to
recognize or bargain with a labor organization as the representative of his
employees , or forcing or requiring the employees of an employer to accept
or select such labor organization as their collective bargaining representative,
unless such labor organization is currently certified as the representative of
such employees:
(B) where within the preceding twelve months a valid election under section
9(c) of this Act has been conducted... .
In order for a violation of Section 8(b)(7)(B ) to be made out in this case, the
following elements must exist : ( 1) the Respondent must be a currently uncertified
union which has engaged in picketing ; ( 2) an object of the picketing must be to
force or require the Company to recognize and bargain with Respondent Union as
the bargaining agent of its employees 3 or to force or require the Company's em-
ployees "to accept or select" Respondent Union as their collective -bargaining repre-
sentative ; and (3 ) a valid Board election was conducted within the ' preceding 12
months.
Counsel for the Respondent Union contends that the General Counsel has failed
to establish the second and third elements. More specifically , he contends in his
brief that the object of its picketing was neither "recognitional" nor "organiza-
tional" within the meaning of Section 8(b) (7) (B ) of the Act, and that the decer-
tification election which the Respondent Union lost was not "a valid election under
Section 9 ( c) of the Act." In addition and wholly apart from the foregoing
defenses , Respondent's counsel contends , ( 1) that an employer's violation of Section
8(a)(2) of the Act is a complete defense to any 8 (b)(7) allegation and therefore
Respondent should have been permitted to litigate the 8 (a)(2) issue ; and (2) that
Respondent Union's picketing was protected as free speech by the first amendment
to the Constitution.
The General Counsel contends that there is no merit to any of Respondent's
defenses , that the record clearly establishes both a "recognitional" and "organiza-
tional" object of the picketing , and that the alleged attack on the validity of the
election may not be considered as a defense in this unfair labor practice proceeding.
C. The unlawful object
Counsel for Respondent admits that one of the objects of Respondent 's picketing,
even after August 3, 1964 , when the Regional Director certified that Respondent
Union had not been selected as the employees ' bargaining representative , was to'
obtain a satisfactory collective -bargaining agreement with the Company , but con-
tends that this did not include a recognition object. He arrives at this conclusion
by reasoning in his brief that Respondent Union "could not have had an object of
recognition in fact (emphasis in brief ) at the time the picketing began because the
3 The Board has held that the words "recognize or bargain" In Section 8(b) (7) (B)
"were not intended to be read as encompassing two separate and unrelated terms."
Building and Construction Trades Council of Banta Barbara County , AFL-CIO (Sullivan
Bleotrio Company ), 146 NLRB 1086.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer was then bargaining with the Union" and, as the Union's object of obtain-
ing a satisfactory collective-bargaining agreement has never changed throughout
the strike, "it cannot have picked up a recognition object along the way." I find no
merit in this contention.
The Board has frequently held that the object of obtaining a collective-bargaining
agreement includes the object of being recognized as the collective-bargaining rep-
resentative of the employees to be covered by such an agreement? Indeed,
Respondent's counsel admitted at the instant hearing that Respondent could not
obtain a contract from the Company without being recognized as the collective-
bargaining representative of the employees in the contract unit. And it is self-
evident that Respondent's demands could not be satisfied without collective bar-
gaining. Moreover, the record clearly shows, as previously found, that at the
January 18, 1963, meeting, the Company withdrew its recognition of Respondent
as the bargaining representative of its mailing, room employees because of the
filing of the first decertification petition, and at the representation hearing on May
7, 1963, openly informed Respondent's counsel that it would no longer recognize
Respondent Union as the collective-bargaining representative of its composing room
and mailing room employees until the Board determined the Union's representative
status. The Company has never changed its position in this respect. Thus, when
the Respondent Union continued to picket for a contract after August 3, 1964,
when the Regional Director certified that it was no longer the exclusive bargaining
representative for the employees in the requested unit, it clearly could not fulfill its
objective without obtaining the recognition which Respondent had withdrawn and
was withholding. Indeed, Respondent admitted at the instant hearing that it wanted
the Company to recognize it as the collective-bargaining representative of the Com-
pany's composing room and mailing room employees and that it would remove
its pickets from the Company's -premises only when a satisfactory collective-
bargaining agreement with the Company. had been reached. It is therefore appar-
ent, and I find, that recognition,and bargaining was part and parcel of Respondent's
picketing objective of obtaining a favorable collective-bargaining agreement after
August 3, 1964.
Counsel for Respondent further contends in its brief that, "even if it were found
that the [Respondent] Union was attempting to obtain recognition with its picket-
ing," this still would not constitute an object to force or require the Company "to
recognize or bargain with" Respondent Union within the meaning of Section
8(b)(7). Counsel bottoms this argument solely on the recent Board' s decision in
Warehouse Employees Union Local No. 570, Teamsters (Whitaker Paper Com-
pany); 149 NLRB 731, where the Board held that Section 8(b)(7)(C) was not
intended to encompass a situation where picketing was lawfully commenced during
a strike by a recognized incumbent statutory representative in support of its eco-
nomic demands for a contract and was continued after the employer had replaced
the strikers, without filing a valid petition for an election in accordance with Sec-
tion 9(c) of the Act. The Board pointed out in this Decision that a prime pur-
pose for the enactment of Section 8(b)(7)(C) was to deal with so-called "black-
mail picketing ," and that that was not the type of picketing involved in the case.
The Board then reaffirmed its conclusion in an earlier case that, in enacting Sec-
tion 8 (b)(7)(C), Congress intended by the words "recognize or bargain" "to pro-
scribe picketing having as its target forcing or requiring an employer' s initial
acceptance of the Union as the bargaining representative of his employees."
Contrary to the assertion of Respondent' s counsel in his brief, the fact that the
instant case involves Section 8(b)(7)(B), rather than 8(b)(7)(C, renders the
Whitaker Paper case wholly inapposite, as "subparagraphs (B) and (C) serve dif-
ferent purposes." 5 The purpose of Section 8 (b) (7) (B) was, not to deal with so-
' See e.g. Hoisting and Portable Engineers Local Union 101 (Sherwood Construction
Company, Inc.), 140 NLRB 1175, 1176, 1178; Warehouse and Mail Order Employees
Union, Local 743, Teamsters (Phil-Maid, Inc.), 144 NLRB 888, where the Board stated at
p. 892 that "it is well settled that a statement on a picket sign that an employer does not
have 'a contract with a labor organization in itself clearly implies a recognitional and
bargaining object"; and Local 182, Teamsters (Woodward Motors, Inc.), 135 NLRB 851,
857, where the Board stated that a contract is "the end product of recognition and
bargaining."
6lnternetional Hod Carriers' Building, eto., Local 840 (C A. Blinne Construction Com-
pany), 135 NLRB 1153, 1158, where the Board analyzed the different purposes of subsec-
tions (A), (B), and (C) of Section 8(b) (7).
LAWRENCE TYPOGRAPHICAL UNION NO. 570 1339
called "blackmail picketing", but, to provide stability for the 12-month period dur-
ing which Section 9(c)(3) of the Act barred a second Board election for
the same unit by protecting the employer and employees during that period
against the pressures of recognitional and organizational picketing in a situation
where neither the picketing union nor any other union was selected as the employ-
ees' bargaining representative in a valid Board election. Thus, prior to the 1959
amendments to the Act, the only situation in which an employer and his employees
were protected against picketing pressures to force or require the employer to recog-
nize or bargain with a particular union as the representative of his employees
appeared in Section (8) (b) (4) (C), and that was a situation where another union
had already been certified as the representative of such employees. The employer
and his employees however had no such protection and there was no stability in
situations where (1) the employer was already lawfully recognizing an uncertified
union and the representative status of the picketing union could not be raised under
Section 9(c) of the Act, (2) the picketing union had lost a valid Board election
and a second election could not be held for a period of 12 months in accordance
with Section 9(c)(3) of the Act, and (3) the Union refused to file a petition for
an election in accordance with Section 9(c) and engaged in so-called "blackmail
picketing." To deal with these situations, Section 8(b)(7)(A) was enacted to take
care of the first situation; Section 8(b)(7)(B) was enacted to take care of the
second; and Section 8(b)(7)(C), to take care of the third. Nowhere is there any
indication of a congressional intention to withhold the protection and sanctions of
Section 8(b)(7)(B) in those situations where the picketing union which lost the
valid Board election was the recognized incumbent statutory representative. Indeed,
so to hold would invite a losing incumbent union to resort to such picketing as a
pressure tactic to wrest the representative status and recognition which it was denied
by the employees' freely expressed choice at the ballot box, would unstabilize the
situation for a period of 12 months during which no new election could be held in
accordance with Section 9(c)(3), and would subvert and nullify the very purpose
for which Section 8(b)(7)(B) was enacted.
In the instant case, unlike the situation in the Whitaker Paper case, the Board
conducted a valid election which Respondent Union lost. The Respondent's prior
representative status was thereby lawfully terminated, not by any act of the
employer but by the force of the statute which was brought into play as a result
of the expressed will of the employee electorate. From that point on, the Respond-
ent Union may not occupy any better or different status than any union which
loses a valid Board election in seeking to have the employer accept it initially as
the bargaining representative of his employees.
I find that an object of Respondent Union's picketing after August 3, 1964, was
to force or require the Company to recognize or bargain with it as the representa•
tive of its employees within the meaning of Section 8(b)(7)(B) of the Act.6
D. The valid Board election
Counsel for Respondent Union contends in his brief that the Board "election
was invalid for each of the five following reasons": (1) the decertification petitions
were allegedly initiated and fostered by the Company; (2) the Company had
allegedly offered superseniority to the strikebreakers; (3) only the strikers should
have been allowed to vote because the strike allegedly was in protest against alleged
unfair labor practices of the Company; (4) even if it was an economic strike,
the strikers should have been permitted to vote because they allegedly had not
been permanently replaced, and (5) the Board denied a hearing on each of the
foregoing issues.
All the foregoing issues were specifically raised before the Regional Director,
and in some instances before the General Counsel, both of whom rejected them as
being without merit. Detailed and voluminous appeals were taken to the Board on
all issues, as appears from the General Counsel's exhibits in the record, and were
denied by the Board, as previously indicated. Counsel for Respondent further con-
tends that he was entitled to litigate these issues before me in the instant proceed-
e I therefore find it unnecessary to consider the General Counsel's further contention
that another objective of Respondent's picketing was forcing or requiring the employees to
accept or select Respondent as their collective-bargaining representative.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing However, as he also candidly admits in his brief, the Board has already ruled
to the contrary and such decisions are binding upon me 7
E The 8(a) (2) issue
At the hearing in the instant proceeding, counsel for Respondent Union offered
to prove that the Company had violated Section 8(a)(2) of the Act by entering
into a closed shop agreement with Printing Pressmen's Union No 377 I rejected
Respondent's attempt to litigate this issue because I found no merit in counsel's
contention that a violation of Section 8(a) (2) is an absolute affirmative defense
to a complaint alleging a violation of Section 8(b) (7) (B), even if all the elements
of that section are established Counsel now requests a reconsideration of my rul-
ing in this respect
Counsel for Respondent readily concedes that the only reference to employer
violations of Section 8(a)(2) is in Section 10 (1) which, in pertinent part, forbids
the Regional Director from seeking an injunction under Section 8(b)(7) where
he has reasonable cause to believe that a charge alleging a violation of Section
8(a)(2) "is true and that a complaint should issue" However, counsel would
have me read this same language into Section 8(b) (7) (B) as a defense to con
duct which would otherwise be proscribed by that section I do not agree
The Board has held that picketing to protest unfair labor practices is still viola-
tive of Section 8(b)(7) if such picketing was also for a recognitional or organiza-
tional object 8 Here, counsel for Respondent conceded at the instant hearing that
there is no relationship between the alleged 8(a)(2) violation and Respondent
Union's picketing object Counsel's examples in his brief relative to Section
8(b)(7)(A) are misplaced As that section applies only where an employer has
lawfully recognized another union, a picketing union could defend on the ground
that the other union was not lawfully recognized, without regard to the filing of
unfair labor practice charges However, in the instant case , the fact that the Com-
pany may have entered into an unlawful agreement with another union has abso-
lutely no bearing on, or relationship to, any of the provisions of Section 8(b)(7)(B)
or the purposes for which it was enacted
I find no merit in the contention of Respondent's counsel and accordingly adhere
to my original ruling
F The constitutional issue
Respondent's counsel's final contention in his brief is that the Union's picketing
was protected as free speech by the first amendment to the Constitution and that,
if it was proscribed by Section 8(b) (7) (B), that section was unconstitutional As
Respondent's counsel has also recognized, the Board has consistently taken the
position that as an administrative agency created by Congress it will presume the
constitutionality of the Act it is charged with administering, absent binding court
decisions to the contrary 9 Moreover, the Supreme Court has long recognized
that `picketing by an organized group is more than free speech since it involves
patrol of a particular locality and since the very presence of a picket line may
induce action of one kind or another, quite irrespective of the nature of the ideas
which are being disseminated " 10 The Court of Appeals for the Second Circuit
has recently had occasion to discuss the distinction between protected free speech
and prohibited picketing ii After quoting the above statement, the court observed
that prohibited picketing involves a "confrontation in some form between union
members and the employees, customers, or suppliers who are trying to enter the
7 Local 182 International Biotherhood of Teamsters ( Woodward Motors Inc ) 135
NLRB 851, 857 , 858 Warehouse and Mail Order Employees Union Local 743 Teamsters
(Phil Maid, Inc ), 144 NLRB 888, 892-893, United Furniture Workers of America AFL-
010 (Jamestown Sterling Corporation ), 146 NLRB 474 remanded on grounds not mate
rial herein 337 F 2d 936 (C A 2)
9 International Hod Carriers ' Building etc Local 840 (0 A Blinne Construction Com-
pany) 135 NLRB 1153, 1161, 1167
6 Milk Drivers and Dairy Employees Local Union No 537 (Sealtest Foods ) 147 NLRB
230, Chauffeurs , Teamsters and Helpers "General" Local Union No 200 (Milwaukee Cheese
Company), 144 NLRB 828 Truck Drivers Union Local No 413 (Patton Warehouse) 140
NLRB 1474
1U Balhery and Pastry Drivers and Helpers Local 802 , Teamsters v Hyman Wohl 315
U S 769 , 776-777 ( concurring opinion of Mr Justice Douglas)
11 United Furniture Workers of America, AFL-CIO, supra
LAWRENCE TYPOGRAPHICAL UNION NO. 570 1341
employer's premises." The court then quoted the following statement from a law
journal [Note, picketing by an uncertified union: The new Section 8(b)(7)(B),
69 Yale L.I. 1393, 1397 (1960)1:
This confrontation invokes convictions or emotions sympathetic with the union
activity, fear of retaliation if the picket is defied, the loyalty of nonpickets
who are union members, simple embarrassment, or other similar reactions.
Underlying all of these responses is an element of intimidation resulting from
the physical presence of the pickets or the heritage of the union picket line
tainted with bloodshed and violence.
Finally, what has been said even more recently by the second circuit with respect
to Section 8(b)(7)(C) applies here with equal force. That Section 8(b)(7)(B),
"in effect, proscribes certain picketing, under particular circumstances which come
within a valid and specifically defined policy enunciated by Congress, does not
violate the First Amendment to the Constitution of the United States." 12
I find no merit to Respondent's last contention.
G. Concluding finding
For reasons previously detailed, I find that by picketing Kansas Color Press,
Inc., at all times after August 3, 1964, with an object of forcing or requiring said
Company to recognize and bargain with it as the collective-bargaining representa-
tive for the unit of composing room and mailing room employees, although it
had not been certified as the collective-bargaining representative for said unit and
a valid election under Section 9(c) of the Act had been held within the preceding
12 months, Respondent Union has violated Section 8(b)(7)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occuring in
connection with the operations of the Company 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 disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent Union has engaged in unfair labor practices in
violation of the Act, I shall recommend that it cease and desist therefrom, and
that it 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, I make the following:
CONCLUSIONS OF LAW
1. Kansas Color Press, Inc., Lawrence, Kansas, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Lawrence Typographical Union No. 570, affiliated with the International
Typographical Union, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By picketing Kansas Color Press, Inc., from August 4, 1964, to the present
time, with an object of forcing or requiring the Company to recognize and bar-
gain with it as the collective-bargaining representative for the unit of composing
room and mailing room employees, although it had not been certified as the
collective-bargaining representative for said unit and a valid election under Sec-
tion 9(c) of the Act had been held within the preceding 12 months. Respondent
has engaged and is engaging in unfair labor practices within the meaning of Sec-
tion 8(b)(7)(B) 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.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that Lawrence Typographical
12 N.L.R.B. v. Local 3, International Brotherhood of Electrical Workers , AFL-010, 339
F. 2d 600 (C.A. 2).
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union No. 570, affiliated with the International Typographical Union, AFL-CIO,
Lawrence, Kansas, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Picketing, causing to be picketed, or threatening to picket or to cause to
be picketed, Kansas Color Press, Inc., an object being to force or require the
Company to recognize and bargain with it as the representative of the employ-
ees in a unit covering the composing room and mailing room, or the employees
in said unit to accept or select it as their collective-bargaining representative,
such picketing not to be engaged in for a period of 12 months following the termi-
nation of the picketing found unlawful. '
(b) Picketing or causing to be picketed, or threatening to picket Kansas Color
Press, Inc., for any of the aforementioned objects, where within the preceding 12
months a valid election under Section 9(c) of the Act has been conducted which
Respondent did not win.
2. Take the following affirmative action which I find will effectuate the poli-
cies of the Act:
(a) Post in conspicuous places in Respondent Union's business offices, meeting
halls, and all places where notices to its members are customarily posted, copies
of the attached notice marked "Appendix A." 13 Copies of said notice to be fur-
nished by the Regional Director for Region 17, shall, after being duly signed by
official representatives of Respondent, be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive days thereafter. Rea-
sonable steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for Region 17 signed copies of the afore-
mentioned notice for posting by the Company, it willing, in places where notices
to employees are customarily posted. Copies of said notice, to be furnished by
the said Regional Director, shall, after being signed by Respondent, as indicated,
be forthwith returned to the Regional Director for disposition by him.
(c) Notify the Regional Director, in writing, within 20 days from the date of
this Decision; what steps the Respondent has taken to comply herewith.14
"In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order 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 "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
11 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 Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL MEMBERS OF LAWRENCE TYPOGRAPHICAL UNION No. 570,
AFFILIATED WITH THE INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, AND
TO ALL EMPLOYEES OF KANSAS COLOR PRESS, INC.
Pursuant to the Recommended Order 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 picket, or cause to be picketed, or threaten to picket Kansas
Color Press, Inc., where an object thereof is to force or require the Company
to recognize or bargain collectively with us as the representative of the
employees in the bargaining unit of composing room and mailing room
employees, or said unit employees to accept or select us as their collective-
bargaining representative, and will abstain thereafter from picketing for such
objects for a period of 12 months.
WE WILL NOT picket, or cause to be picketed, or threaten to picket, Kansas
Color Press, Inc., where an object thereof is to force or require the Company
to recognize or bargain collectively with us as the representative of the
employees in the aforestated bargaining unit, or said unit employees to accept
or select us as their collective-bargaining representative, where a valid election
LAWRENCE TYPOGRAPHICAL UNION NO. 570 i '1343
which we did not win has'-been conducted by the National Labor Relations
Board among the employees in said . bargaining unit , within-the preceding
12 months. `
LAWRENCE TYPOGRAPHICAL UNION No. 570, AFFILIATED WITH
THE INTERNATIONAL TYPOGRAPHICAL UNION , AFL-CIO,,
Labor Organization:
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced; or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri , Telephone No. Balti-
more 1-7000 , Extension 731, if they have any questions concerning this notice or
compliance with its provisions.
TRIAL EXAMINER 'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
On January 18, 1965, I, Trial Examiner Louis Libbin , issued a Decision in the
above-entitled proceeding, finding that Respondent Union had engaged and was
engaging in picketing with an object of recognition or bargaining within a year
of a valid election , in violation of Section 8(b)(7)(B ) of the Act . On Sep-
tember 16 , 1965, the Board, granting the motion of the General Counsel , issued
an Order directing that the record in this proceeding be reopened and that a
further hearing be held before me "to receive evidence concerning the validity
of the election , but limited to Respondent 's claim that the Charging Party insti-
gated the, election petitions and that the strikers but not their replacements
should have been permitted to vote because they were striking in protest of
alleged unfair labor practices committed by the Charging Party." The Order
further provided that "the Trial Examiner shall prepare and serve upon the
parties a Supplemental Decision containing findings of fact upon the evidence
received pursuant to the provisions of this Order concerning the validity of the
election, insofar as such validity might be affected by the Charging ' Party's
alleged instigation of the election petitions and by the strikers ' alleged ' eligibility
to vote, and also containing such conclusions of law and recommendations as
he may deem appropriate on the entire record."
Pursuant to due notice , a remand hearing was held before me at Kansas City,
Missouri , on November 2, 1965. All parties were represented at, and partici-
pated in, the hearing . On December 7, 1965, all parties filed beefs, which I
have fully considered . For the reasons hereinafter stated, I adhere to my original
findings and recommendations.
Upon the entire record 1 in the remand hearing and from my observation of
the witnesses , I make the following:
FINDINGS OF FACT
1. As to Respondent's claim that' the Charging Party instigated
the decertification petitions _
In support of this claim, counsel for Respondent called as witnesses and cross-
examined the three employees who filed the petitions. They testified in substance
as follows:
Joe Swadley and Phoebe Schneck, both of whom filed Case No. 17-RD-235 for
the mailing room employees, arranged to go together to the Board's Regional
Office where they were advised about the procedure for -filing a decertification
petition. They were motivated by a desire to protect their jobs against the possi-
bility of the Respondent Union negotiating an agreement which would result in
the strikers replacing them. Swadley was further motivated by a desire to get rid
1 On December 7, 1965, Respondent also filed a motion to correct the typewritten tran-
script of testimony in designated specific respects. In the absence of objections, I
hereby grant said motion, make the document a part of the record in this proceeding, and
place it In the official exhibit folder as Respondent's Exhibit 8.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the picketing and the foul language directed at those who crossed the picket
line. They solicited employee signatures on their own time , mostly at the homes
of employees . Francis J. Smysor heard about the petition for the mailing room
employees and thereupon drafted one for the composing room employees, which
he filed with the Board 's Regional Office as Case No . 17-RD-236. He too was
motivated by a desire to protect the employees ' jobs against the possibility of the
Union coming back and taking them over . He solicited employee signatures only
at the homes of employees.
Counsel for Respondent acknowledges in his brief that "there is no direct
evidence that the employer caused the decertification petitioners to file the peti-
tions ." He contends , however, that I should nevertheless reach this conclusion
by discrediting the testimony of Swadley and Schneck and finding their testimony
to be intentionally fabricated.
While it is true , as counsel points out in his brief , that there is a contradiction
between the testimony of Swadley and Schneck as to the circumstances under
which they discussed the matter and arranged to visit the Board 's Regional Office
for advice , I do not regard this of sufficient importance to warrant discrediting
their entire testimony. My observation of their demeanor on the witness stand
and the inherent plausibility of their reasons for going to the Board's Regional
Office and filing the decertifications petitions , lead me to credit their testimony
in all essential aspects.
I find that there is no evidence to support Respondent's claim that the Charg-
ing Party instigated the decertification petitions.
2. As to Respondent 's claim that the strikers should have been allowed to vote
because they were striking in protest of alleged unfair labor practices committed
by the Charging Party
Respondent contends that the strike, which commenced on September 19, 1961,
as an economic strike, was converted into an unfair labor practice strike by the
Charging Party's alleged unlawful refusal to bargain , conduct which formed the
basis for Respondent 's charge filed on February 12, 1963 , in Case No. 17-CA-2118.
In its Remand Order , the Board specifically stated that "in order to sustain its
contention that the instant strikers were unfair labor practice strikers , Respond-
ent must prove that, contrary to the conclusion of the General Counsel, the
alleged unlawful refusal to bargain by Kansas Color Press, Inc., occurred within
the Section 10(b) limitations period preceding the filing of the charges in Case
No. 17-CA-2118." Counsel for Respondent agreed at the hearing that August 12,
1962 , constitutes the beginning of the 10 (b) period . As the election was held
on August 28, 1963, Respondent must prove that the alleged unlawful refusal
to bargain occurred during the period between August 12, 1962 , and August 28,
1963 . All of the evidence concerning the negotiations was adduced through the
testimony of Respondent 's witnesses , George Williams , who was president of
Respondent since March 1962, and Milton A. Lomas, Respondent 's chief nego-
tiator who was a representative of the International Typographical Union.
A. The relevant facts
(1) Pre-10 (b) conduct
In accordance with well-established precedents, I permitted Respondent to adduce
evidence of conduct which occurred before the commencement of the 10(b) per-
iod for background purposes only. This evidence related to negotiating meetings
held on June 1, 4 and 5, 1962 , and is as follows:
At the negotiating session of June 1, 1962 , the parties discussed the matters
then in dispute, such as management-rights clause , wages, priority, situation hold-
ers, struck work clause, the manner in which members would be returned to work,
and the terms of a strike settlement agreement . By about 5 p.m., a tentative agree-
ment was reached on all issues except the wages for the women in the mailing room.
At that point , a recess was taken to permit the Company's representatives to
consult with their principal . When the meeting reconvened , Attorney Ellison, the
negotiator for the Company, read a statement to the effect that the Company
wanted "unrestricted" use of the Allied Printing Trades Label with a guarantee
against interference with its use and that Respondent take all strike replacements
into membership for the duration of the contract . The negotiators for Respondent
LAWRENCE TYPOGRAPHICAL UNION NO. 570 1345
pointed out that they could not give any guarantee on the use of the Label because
it was owned by five International Unions and Respondent had no control over it.
They also stated that the strike replacements would have to make application to
the Local like any other person. Lomas, Respondent's chief negotiator, admitted
that there was much discussion on these two issues and that they negotiated "quite
a bit" on the subjects. The meeting adjourned without an agreement having
been reached .2
At the meeting on June 4, 1962, Ehrman of the Eagles read the license agree-
ment and explained to Zimmerman, the Company's president, that Respondent
could not give a written guarantee of the Allied Label. This meeting was con-
tinued on the following day, June 5. Williams testified that on that day Zim-
merman was worried about the Union not taking the strike replacements into,
membership, that he, Williams, promised that as president of the Local Union he
would recommend to the Local that the strike replacements be taken into mem-
bership, and that with that assurance Zimmerman dropped the issue. Williams
further admitted that at the end of the meeting "it was understood that this would'
come about" and that "it was left" that the strike replacements "would make
applications" for membership.
(2) Conduct within the 10(b) period
Further negotiating meetings were held on October 23 and 24, 1962. A ten-
tative agreement was reached on all issue on October 23 and was reduced to.
writing on October 24. Williams testified that Zimmerman was told that if he
did not violate the Allied Label License Agreement he would have no problems
with the use of the label and that this satisfied Zimmerman. Lomas testified that.
"Mr. Zimmerman abandoned his demand for the unrestricted use of the Allied
Printing Trades Label because Mr. Ehrman told him that he, Mr. Ehrman, knew
that the Union would not do that, or could not do that." Lomas further testified
that with respect to the strike replacements being taken into membership, the-
parties agreed that "the [Local scale] committee, in accordance to the I.T.U.
laws, would recommend favorable consideration of these applications if they
were forthcoming." The written agreement was proofread and minor typo-
graphical errors were corrected to the satisfaction of the Respondent. The agree-
ment was then sent by Respondent to the I.T.U. contract department. Lomas
told the Company's representatives that the contract would have to go to the I.T.U..
contract department for review and that he would recommend that the contract
department act favorably on it.
On October 29, 1962, the Company received membership application blanks,
from Respondent. Thereafter, the Company distributed these application blanks.
to the strike replacements and offered to lend them money to pay their initiation,
fees if they were accepted as members.
In the latter part of October Lomas was informed that the contract was not
approved by the contract department of the I.T.U. Lomas testified that the pro-
visions found to be objectionable related to the situation holders, the struck-work
clause, the management-rights clause, the savings clause, and the I.T.U. laws..
Although it was prepared to sign the agreement upon the approval of the Inter-
national, the Respondent did not sign it because the International did not approve-
it, as Williams admitted.
B. Contentions of the parties
The Respondent contends that the Company's proposals relating to the use of
the union label and that strike replacements be taken into membership, advanced,
for the first time at the meeting of June 1, 1962, were nonmandatory subjects of-
bargaining; that the Company insisted that the Respondent agree to its terms on
these nonmandatory subjects of bargaining; that the Company's conduct in these-
2 The parties stipulated that the last contract language proposal which the Company's
negotiators wade at this meeting regarding the label was as follows:
During the term of the two year collective bargaining agreement, the International
and Local Unions guarantee that neither they nor any of their agents or members
will take any action or do anything directly or indirectly which will interfere with,
the uninterrupted use of the Allied Label by the Company.
221-781--67-vol . 158-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respects constituted an unlawful refusal to bargain which prolonged the strike and
converted it into an unfair labor practice strike; and that the strikers thereupon
became unfair labor practice strikers eligible to vote in the election held on
August 28, 1963.
The General Counsel and the Company (Charging Party) contend that even if
the proposals relating to the use of the union label and to the taking of strike
replacements into membership are not mandatory subjects of collective bargaining,
there is nothing unlawful about proposing them or bargaining on them if the
Union is willing; that it would constitute an unfair labor practice only if the
Company insisted on these proposals to the point of impasse; that the Company
did not so insist; that, in any event, the Company's conduct with respect to these
=issues did not prolong the strike; and that the strikers remained economic strikers
who were not eligible to vote.
C. Concluding findings
I agree with the principal position of the General Counsel and the Company,
the Charging Party herein. The Company's proposals are not illegal per se, and
Respondent makes no contrary contention in this respect. Conceding that they
are not mandatory subjects to collective bargaining, it is not an unfair labor
practice for the Company to advance these proposals and for the parties voluntarily
to negotiate with respect to them. The Company's conduct would constitute an
unlawful refusal to bargain only if it had insisted on these proposals to the point
of impasse.3 This, the record clearly shows, the Company did not do. As pre-
viously found, Lomas testified that the parties negotiated "quite a bit" on these
two items. Lomas admitted that the item of admission of strike replacements to
union membership "was settled to the Union's satisfaction" at the meeting on
October 23, 1962, after Mr. Zimmerman, the Company's president, was told that
this was something the Union "could not guarantee," that "this was a right reserved
to the membership alone by secret ballot," and that the union scale "committee,
in accordance to the I.T.U. book of laws, would recommend favorable consider-
ation of these applications if they were forthcoming." In accordance with this
understanding of the parties, the Respondent submitted membership applications
to the Company which distributed them to the strike replacements. Lomas also
admitted that at the October 23 meeting, Zimmerman "abandoned his demand for
the unrestricted use of the Allied^Printing Trades Label" after learning that this
was something to which the Union could not or would not agree, as previously
found. The contract which the parties reduced to writing and were prepared to
execute upon approval by the contract division of the I.T.U., contained no language
with respect to these items. Williams, Respondent's president, admitted that the
Respondent was prepared to sign that agreement if it had been approved by the
International. Lomas admitted that it was his understanding that the Company
would sign this agreement upon approval by the Union. He further testified that
the Company has never refused to sign the agreement which had been submitted
to the I.T.U. contract department. Lomas also admitted that the I.T.U. refused
to approve this agreement solely because of objections to the contract language
relating to certain specific clauses therein, as previously found. It is conceded by
Respondent that it did not sign this agreement solely because the International had
not approved it4
I find that the Charging Party did not engage in any conduct constituting an
unlawful refusal to bargain during the relevant period,5 and that the strikers con-
tinued to remain economic strikers who were not eligible to vote in the election.
Conclusions of Law
1. The Charging Party did not instigate the election petitions.
2. The Charging Party did not engage in an unlawful refusal to bargain viola-
tive of the Act.
3 N.L.R.B. v. Wooster Division of Borg-Warner Corporation , 356 U S. 342.
4 Lomas testified that the I .T.U. can revoke a local's charter for entering into a contract
which had not been approved by the International.
6I therefore find it unnecessary to determine whether the strike would have been
prolonged and converted into an unfair labor practice strike if Respondent 's conduct had
constituted an unlawful refusal to bargain.
PIONEER NATURAL GAS COMPANY 1347
3. The strikers were economic strikers as of the date of the election conducted
on August 28, 1963 , in Cases Nos. 17-RD-235 and 17-RD-236, and hence not
eligible to vote in that election.
4. The aforesaid election was a valid election.
RECOMMENDED ORDER
I hereby recommend that the Respondent be ordered to take the action set
forth in the Recommended Order of my Decision of January 18, 1965.
Pioneer Natural Gas Company and International Union of Oper-
ating Engineers, Local No. 340, AFL-CIO. Case No. 16-CA-
2533. June 6, 1966
DECISION AND ORDER
On March 8, 1966 , Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices with-
in the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action , as set forth in the attached Trial Examiner's
Decision . Thereafter , the Respondent filed exceptions to the Trial
Examiner 's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Na-
tional Labor Relations Board has delegated its powers in connection
with this case to a three-member panel [Chairman McCulloch and
Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner in-
cluding his granting of the General Counsel 's motion for judgment
on the pleadings , and finds no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision , the exceptions and brief , and the entire
record in this case,l and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
' In accepting the Regional Director 's determination that the requested employees of
the Employer 's Turkey Creek compressor and gasoline plant constitute "an" appropriate
unit in the circumstances of this case, we note the Employer ' s meritorious claim that one
Warr, the superintendent and supervisor of all three of the Employer 's compressor and
gasoline plants, and not-as found by the Regional Director--Callaway , the immediate
supervisor of the requested Turkey Creek employees , makes the hiring determinations de-
scribed in the Decision and Direction . However, this was only one of a number of factors,
of which no one is controlling , relied on by the Regional Director in granting Petitioner's
unit request . Giving due weight to Warr's hiring authority , we are, nonetheless , satisfied
that the record as a whole otherwise justifies the unit determination the Regional Director
made.
158 NLRB No. 127.