Lightner Publishing Corporation of Illinois

National Labor Relations Board - Board Decisions

May 26, 1939

12 N.L.R.B. 1255 (N.L.R.B. 1939)

In the Matter of LIGHTNER PUBLISHING CORPORATION OF ILLINOIS and
CHICAGO PRINTING PRESSMEN 'S UNION No. 3, CHICAGO TYPOGRAPH-
ICAL UNION No. 16
Case No. C-633.-Decided May 26,19-39
Magazine Publishing Industry Interference , Restraint , and Coercion-Units
Appropriate for Collective Bargaining : pressmen , feeders, and pressroom appren-
tices ; compositors , linotype operators , stonemen , and make -up men ; two units,
each appropriate for bargaining purposes ; well-established crafts in printing
industry ; no objection raised by employerRepresentatives : proof of choice :
testimony of employees and Union officials-Collective Bargaining : lack of
negotiation in good faith ; refusal to enter into serious discussion of proposals;
expressed opposition to Unions ; threat to close plant ; employer ordered to
recognize and bargain with Unions as employees ' exclusive bargaining repre-
sentative-Strike: caused by employer 's unfair labor practices-Reinstatement
Ordered: strikers upon application ; dismissing newly hired employees , if neces-
sary ; preferential list ordered-Back Pay: awarded to strikers if they are
refused reinstatement or placement upon preferential list.
Mr. Stephen M. Reynolds, for the Board.
Mr. Victor A. Pascal, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been filed on behalf of
Chicago Typographical Union No. 16, herein called Union No. 16,
and Chicago Printing Pressmen's Union No. 3, herein called Union
No. 3, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Thirteenth Region (Chicago, Illi-
nois), issued its complaint dated April 5, 1938, against Lightner
Publishing Corporation of Illinois, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (1) and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. The complaint
and accompanying notice of hearing were duly served upon the re-
spondent, Union No. 16, and Union No. 3. On April 11, 1938, the
respondent filed an answer in the form of a verified letter denying
12 N. L. R. B., No. 121.
1255
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the alleged unfair labor practices and stating that it did not intend
retaining counsel in the proceeding.
Pursuant to the notice, a hearing was held on April 14, 1938, at
Chicago, Illinois, before Gustaf B. Erickson, the Trial Examiner
duly designated by the Board. The respondent did not appear at
the hearing. The Board appeared, was represented by counsel, and
participated in the hearing. Full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties. During the course of the hear-
ing, the Trial Examiner made several rulings on motions. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On May 12, 1938, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon all the parties, in which he
found that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section 8
(1) and (5) and Section 2 (6) and (7) of the Act and recommended
that, upon request, the respondent bargain collectively with Union
No. 16 and Union No. 3, as the exclusive representatives of all the
employees in the respective units therein found to be appropriate for
the purposes of collective bargaining.
In a letter dated May 24, 1938, sent to the Board, the respondent
excepted to the admission of certain evidence at the hearing and
apparently excepted to the Trial Examiner's findings. The Board
has considered the exceptions and, save to the extent that the findings
below depart from those of the Trial Examiner, finds that the excep-
tions are without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Lightner Publishing Corporation of Illinois is an Illinois corpora-
tion maintaining its plant at Chicago, Illinois. It is engaged in pub-
lishing three monthly magazines titled "Hobbies," "Automatic Age,"
and "All-Pets." The combined circulation of the 3 publications totals
approximately 36,000 copies monthly, of which 34,300 are sent to
destinations outside the State of Illinois. All the paper used by the
respondent is sent to it at Chicago from the State of Wisconsin at the
rate of approximately one carload every 2 months.
II. THE ORGANIZATIONS INVOLVED
Chicago Typographical Union No. 16, a local of the International
Typographical Union of North America, is a labor organization whose
LIGHTNER PUBLISHING CORPORATION OF ILLINOIS 1257
membership includes printers , linotype operators , and floormen in the
respondent 's employ.
Chicago Printing Pressmen 's Union No. 3, a local of the Interna-
tional Printing Pressmen and Assistants ' Union of North America,
is a labor organization admitting to its membership pressroom workers
employed by the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
The complaint alleges that all the pressmen, feeders, and pressroom
apprentices employed by the respondent constitute an appropriate
bargaining unit within the meaning of Section 9 (b) of the Act and
that all the compositors, linotype operators, stonemen, and make-up
men in its employ constitute a distinct unit, likewise appropriate for
the purposes of collective bargaining. Although the respondent met
with the representatives of Union No. 16 and Union No. 3 and also
interposed an answer herein, at no time did it raise objection to these
units. The units as alleged follow well-established craft lines in the
printing industry, and the record reveals no reason for deviating from
the units set forth in the complaint.
We find that all the pressmen, feeders, and pressroom apprentices
employed by the respondent, and all the compositors, linotype opera-
tors, stonemen, and make-up men in its employ constitute two distinct
units, each appropriate for the purposes of collective bargaining, and
that each of said units will insure to the respondent's employees the
full benefit of their right to self-organization and to collective bar-
gaining and will otherwise effectuate the policies of the Act.
B. Representation by 'Union No. 16 and Union No. 3, respectively, of
the majority in each of the appropriate units
The organizer for Union No. 16 testified that, on September 20,
1937, nine employees at the plant were eligible to its membership, that
all were members of the organization, and that they were employed
as linotype operators, printers, and floormen. Seven of the nine mem-
bers who had been employed by the respondent as compositors, hand-
men, make-up men, floormen, printers' helpers, or apprentice printers,
testified as to their affiliation with the organization.
On September 20, 1937, there were three employees in the unit com-
posed of pressmen, feeders, and pressroom apprentices, two of whom
were then members of Union No. 3. The third was a member of
Franklin Union No. 4, a local of the International Printing Pressmen
and Assistants' Union of North America which had authorized Union
No. 3 to bargain in behalf of its member employed by the respondent.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, the three employees testified as to their union mem-
bership.
We find that on September 20, 1937, and thereafter, Union No. 16
and Union No. 3, respectively, represented a majority of the employees
in each of the appropriate units, and were, therefore, pursuant to Sec-
tion 9 (a) of the Act, the exclusive representatives of all the employees
in such units for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other conditions of
employment.
C. The refusal to bargain
On September 20, 1937, a union committee including representa-
tives of Union No. 16 and Union No. 3 met with O. C. Lightner, the
respondent's president. Stating that a majority of the respondent's
employees had designated them as bargaining representatives, the
committee tendered to Lightner the employees' union membership
applications for inspection. Lightner was not interested in the cards
and refused to look at them. Kuhfuss, a representative of Union
No. 3, then stated that the committee desired to negotiate an agree-
ment with reference to the employees' wages, hours of work, and
working conditions. He attempted to state the unions' demands in
detail but was unable to proceed as Lightner interrupted him with
a lengthy harangue on matters unrelated to the unions' demands,
complaining of governmental interference with business, stating that
the committee members wore better clothes and drove better auto-
mobiles than he did, and alleging that the respondent's business was
being conducted at a loss. He stated that he was not interested in
considering the union's proposal for a gradual change in the em-
ployees' salaries and other working conditions so that they might
eventually coincide with the unions' scales. The committee asked
Lightner to reconsider their proposals for a week, when they would
return for his answer. Lightner answered that he was determined
not to alter his position, and the meeting was adjourned.
The respondent's employees met on September 27, and after re-
ceiving a report of the September 20 conference, authorized the
unions' representatives to call a strike at the plant in the event that
they were unable to reach an agreement with the respondent.
In a further attempt to negotiate an agreement, the committee
again met with Lightner on September 29. Substantially the same
conversation occurred as on September 20. Lightner was adamant
in refusing to consider the unions' proposals. He characterized the
employees' efforts to bargain collectively as a "little difficulty," com-
plained that his competitors were "sicking the union onto him," and
threatened to shut down the plant. The committee informed Light-
LIGHTNER PUBLISHING CORPORATION OF ILLINOIS 1259
ner that the employees had authorized a strike at the plant but, as
he did not change his position, the meeting terminated.
The strike which had been authorized became effective on Sep-
tember 30, 1937, when the employees left the plant because of the
respondent's refusal to bargain. Picket lines were established. After
having its printing work done elsewhere for a time, the respondent
hired strikebreakers and resumed its operations at the plant. The
strike still continued at the time of the hearing.
In a further effort to resolve their differences with the respondent,
the unions' representatives met with Lightner on October 7. He con-
tinued to contend that the respondent could not afford to increase
employees' salaries, maintaining that its business was being conducted
at a loss and that its competitors had instigated the unions' bargain-
ing efforts. As Lightner persisted in refusing to consider their pro-
posals, the unions proposed restoring the status quo by directing the
employees -to return to work. Lightner refused to reinstate the
strikers, alleging that he had been informed that one had called
him "a dirty name," another had threatened to break a window, and
he did not like the "general disposition" of a third. The meeting
terminated without any agreement having been reached.
In a letter dated October 25, 1937, to Herbert Voelz, one of the
striking employees, Lightner stated :
There is nothing to avail you in sticking to the bunch because
the rest of them are never going to work here under any circum-
stances as long as I am alive. You can stay on the union payroll
the rest of your life if you want to but I would advise you to get
yourself a job, either here or somewhere else, because there isn't
the slightest chance under any circumstances at any time or under
any conditions that some of those men will ever work here again.
In spite of the previous rebuffs, the committee persisted in their
attempt to bargain with the respondent and again met with Lightner
on November 17 and with Waldron, the respondent's attorney, on
December 3 but to no avail. In testifying with reference to the
meeting with Waldron on December 3, Joseph B. Roche, secretary
of the organization committee of the International Printing Pressmen
and Assistants' Union of North America, stated :
Then I suggested to him, "If you are really sincere , Mr. Waldron,
suppose we forget everything that has transpired up to this time
and let all concerned each start right from scratch. You offer
us whatever kind of proposition you have to offer." He told
me very plainly they had no sort of proposition to offer and he
asked us in turn, "What have you fellows got to offer?" So we
offered him the same proposition we had offered Mr. Lightner,
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the men be returned to work immediately without discrimi-
nation and we could then go into a conference in regard to wages,
hours and conditions. He said they wouldn't even consider that.
I think that is about the gist of the meeting. After the meeting
was broken up Mr. Waldron walked out into the anteroom with
us and he suggested we call the whole thing off because he knew
as well as Lightner knew this wasn't a Union proposition at all,
it was entirely a more or less proposition of the competitors of
Lightner, if we had any sense we would call this whole thing off
before we got into hot water.
It is apparent that the respondent refused to conduct negotiations
with reference to the proposed contract or the reinstatement of the
striking employees.
While an employer is not under a duty to accede to whatever par-
ticular terms may be sought by a union, Section 8 (5) of the Act
requires that he accept the spirit of collective bargaining-by accord-
ing recognition to the bargaining representatives of his employees
and conducting negotiations in good faith in an honest effort to arrive
at a mutually satisfactory agreement.' The record clearly evinces the
respondent's preconceived intention of evading this obligation. Light-
ner's opinion of the committee and its proposals is reflected in articles
under his name in the respondent's publications referring to "extor-
tionists" and "racketeers" preying upon industry under the protection
of the Act. In fact, he was not interested in ascertaining whether the
committee actually had been designated as the employees' bargaining
representative, and refused to look at the unions' membership applica-
tions which were tendered to him at the first meeting. During his
meetings with the committee, Lightner offered no suggestions for
changes acceptable to him and prevented any serious discussion which
might result in an agreement, by confining his answers to the unions'
proposals to a discussion of governmental interference with business,
hobbies, the efforts of his competitors to "sick the union onto him,"
and other similar matters extraneous to the issues. Although the
respondent refused to negotiate with the committee with reference
to reinstating the striking employees, it attempted to secure their
return to work without the approval of the unions. On October 25,
1937, Lightner sent letters to three strikers offering them reemploy-
' Matter of Inland Steel Company and Steel Workers Organizing Committee and
Amalgamated Association of Iron, Steel , and Tin Workers of North America , Lodge Nos.
64, 1010 , and 1101, 9 N L. R. B . 783 In Globe Cotton Mills v. National Labor Rela-
tions Board, 103 F. (2d) 91, (C. C A. 5), decided March 30, 1939, the Court stated: "We
believe there is a duty on both sides, though difficult of legal enforcement , to enter into discus-
sion with an open and fair mind, and a sincere purpose to find a basis of agreement touch-
ing wages and hours and conditions of labor, and if found to embody it in a contract as
specific as possible , which shall stand as a mutual guaranty of conduct , and as a guide
for the adjustment of grievances."
LIGHTNER PUBLISHING CORPORATION OF ILLINOIS 1261
ment and setting forth his opinion as to the futility of their union
membership. It is apparent that the respondent persisted in a course
calculated and intended to avoid serious bargaining negotiations with
the unions.
Accordingly, we find that the respondent has refused to bargain
with Union No. 16 and Union No. 3 as the exclusive representatives
of its employees in appropriate units and has thereby interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. We also find that the
strike of the respondent's employees, which began on September 30,
1937, was caused by the respondent's refusal to bargain.
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 the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and have led, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
THE REMEDY
As we have found that the respondent refused to bargain with
the representatives of its employees in appropriate bargaining units,
we shall order the respondent to bargain collectively with Union
No. 16 and Union No. 3 if requested to do so.
Since the strike on September 30, 1937, was caused by the re-
spondent's unfair labor practices, we shall, in accordance with our
usual custom, order the respondent, upon application, to offer rein-
statement to their former or substantially equivalent positions to
those employees who went out on strike and have not since been
fully reinstated. Such reinstatement shall be effected in the follow-
ing manner : All employees hired after the commencement of the
strike shall, if necessary to provide employment for those to be
offered reinstatement, be dismissed. If, thereupon, by reason of a
reduction in force there is not sufficient employment immediately
available for the remaining employees, including those to be offered
reinstatement, all available positions shall be distributed among such
remaining employees in accordance with the respondent' s usual
method of reducing its force, without discrimination against any
employee because of his union affiliation or activities, following a
system of seniority to such extent as has heretofore been applied
in the conduct of the respondent's business. Those employees re-
maining after such distribution, for whom no employment is imme-
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diately available, shall be placed upon a preferential list prepared
in accordance with the principles set forth in the previous sentence,
and shall thereafter, in accordance with such list, be offered employ-
ment in their former or in substantially equivalent positions, as such
employment becomes available and before other persons are hired
for such work. Each of the employees thus ordered reinstated or
placed on a preferential list shall also be entitled to back pay begin-
ning 5 days after his application for reinstatement pursuant to our
Order, in the event that the respondent does not reinstate him or
place him upon a preferential list in accordance with our Order
within such 5 days. The amount of back pay shall be a sum of
money equal to that which each employee normally would have re-
ceived as wages during the period commencing 5 days after the
refusal to reinstate him or to place him upon a preferential list to
the date of the offer of reinstatement or placement upon a prefer-
ential list, less his net earnings 2 during that period.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Chicago Typographical Union No. 16 and Chicago Printing
Pressmen's Union No. 3 are labor organizations, within the meaning
of Section 2 (5) of the Act.
2. All the pressmen, feeders, and pressroom apprentices employed
by the respondent constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act.
3. Chicago Printing Pressmen's Union No. 3 was on September 20,
1937, and at all times thereafter has been, the exclusive representative
of all such employees for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act.
4. All the compositors, linotype operators, stonemen, and make-up
men employed by the respondent constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
2 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, Incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies
received for work performed upon Federal, State, county, municipal, or other work-relief
projects are not considered as earnings, but, as provided below in the Order, shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief projects
LIGHTNFR PUBLISHING CORPORATION OF ILLINOIS 1263
5. Chicago Typographical Union No. 16 was on September 20,
1937, and at all times thereafter has been, the exclusive representative
of all such employees for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act.
6. By refusing to bargain collectively with Chicago Typographical
'Union No. 16 and Chicago Printing Pressmen's Union No. 3 as the
exclusive representatives of its employees in the appropriate units,
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (5) of the Act.
7. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8. 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 basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the re-
spondent, Lightner Publishing Corporation of Illinois, Chicago, Illi-
nois, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Chicago Printing Press-
men's Union No. 3 as the exclusive representative of all its press-
men, feeders, and pressroom apprentices;
(b) Refusing to bargain collectively with Chicago Typographical
Union No. 16 as the exclusive representative of all its compositors,
linotype operators, stonemen, and make-up men;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining and other
mutual aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Chicago Printing
Pressmen's Union No. 3 as the exclusive representative of all press-
men, feeders, and pressroom apprentices in its employ, and with
Chicago Typographical Union No. 16 as the exclusive representa-
tive of all compositors, linotype operators, stonemen, and make-up
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men in its employ, in respect to rates of pay, wages, hours of employ
ment, and other conditions of employment;
(b) Upon application, offer to its employees who went out on
strike on September 30, 1937, and thereafter, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
in the manner set forth in the section entitled "The Remedy" above,
placing those employees for whom employment is not immediately
available upon a preferential list in the manner set forth in said
section, and thereafter, in said manner, offer them employment as it
becomes available;
(c) Make whole the employees ordered to be offered reinstate-
ment for any loss of pay they will have suffered by reason of the
respondent's refusal to reinstate them upon application, following
the issuance of this Order, by payment to them, respectively, of a
sum of money equal to that which each would normally have earned
as wages during the period from five (5) days after the date of such
application for reinstatement to the date of the offer of employment
or placement upon the preferential list required by paragraph (b)
above, less his net earnings during that period; deducting, however,
from the amount otherwise due to each of said employees, monies
received by said employees during said period for work performed
upon Federal, State, county, municipal, or other work-relief projects,
and pay over the amount so deducted to the appropriate fiscal agency
of the Federal, State, county, municipal, or other government or
governments which supplied the funds for said work-relief projects;
(d) Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of at least sixty (60)
consecutive days, stating (1) that the respondent will cease and desist
in the manner aforesaid, and (2) that it will take the affirmative
action set forth in paragraphs 2 (a), (b), and (c) of this Order;
(e) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.