Maryland News Co.

National Labor Relations Board - Board Decisions

Aug 21, 1962

138 N.L.R.B. 215 (N.L.R.B. 1962)

MARYLAND NEWS COMPANY 215
Aaron Trosch, Ivan E. Trosch and Melvin R. Trosch d/b/a
Maryland News Company and Warehouse, Retail and Mail
Order Employees Local Union #590, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America and Maryland News Employees
Association, Party to the Contract. Case No. 5-CA-2040.
August 21, 1962
DECISION AND ORDER
On April 30, 1962, Trial Examiner Stanley Gilbert issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices as alleged
in the complaint. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief. The General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its order the Recommended Order of the Trial
Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge having been filed on October 26 , 1961 , as amended on December 15,
1961 , by Warehouse , Retail and Mail Order Employees Local Union #590, Affiliated
with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America (hereinafter referred to as the Union ), the complaint herein
was issued on December 15, 1961 , alleging that Aaron Trosch , Ivan E. Trosch, and
Melvin R . Trosch d/b/a Maryland News Company (hereinafter referred to jointly
as Respondent or Company ) had and are engaging in conduct violative of Section
8(a)(1), (2 ), and (3) of the National Labor Relations Act, as amended . Respond-
ent in its answer denied that it engaged in certain of the acts alleged and, while
admitting other conduct alleged , denied that such conduct was violative of the Act.'
1 The complaint was amended during the course of the hearing , but it does not appear
necessary to set forth herein in what respects.
138 NLRB No. 28.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice , a hearing was held on February 12, 1962 , at Baltimore, Mary-
land, at which all parties were represented by counsel. Oral argument was waived
and General Counsel and Respondent filed briefs within the time designated therefor.
Upon the entire record in this proceeding and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Maryland News Company, a partnership, with its office, warehouse, and place of
business in Baltimore, Maryland, is engaged in the -business of wholesale distribution
of magazines, books, periodicals, and newspapers. Respondent receives annually at
its place of business in Baltimore, Maryland, directly from sources located outside the
State of Maryland goods and materials valued in excess of $50,000.
I find, as is admitted by Respondent, that it is engaged in commerce within the
meaning of Section 2(6) of the Act and that assertion of jurisdiction is warranted.
H. THE LABOR ORGANIZATIONS INVOLVED
The Union (the Charging Party) and the Maryland News Employees Association
(Party to a collective-bargaining agreement with Respondent and hereinafter referred
to as the Association) are, as admitted by Respondent, labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and summary of events
On January 6, 1961, the Union filed a petition for certification of representatives
in Case No. 5-RC-3343 for a unit of Respondent's employees indicated as being 30
in number. On or about January 18, 1961, at a pretrial conference held by the
Board in said proceeding, the Company contended that the appropriate unit should
embrace other employees besides those set forth in the unit which the Union de-
scribed in its petition (which would have increased the number in the unit to 60).
Said petition, however, was withdrawn on January 30, 1961. On February 1, 1961,
the Union filed a petition for certification of representatives in Case No. 5-RC-3372
with a somewhat different description of the unit sought with an indicated number
of 32 employees. A hearing was held on this petition on February 27, 1961, but,
as yet, the Board has not issued its decision with respect thereto. At the aforesaid
hearing, the Company apparently again contended that the appropriate unit should
embrace 60 of its employees.
Between February 28 and March 3, 1961, the Union picketed the Company's
premises. During this period, Philip Appel, an employee, drafted and circulated
a document which was signed by approximately 50 of the employees. The document
read: "We, the undersigned, including those who have signed Union Cards and
those who have not signed Union Cards, hereby withdraw our Membership and
demand that the picket line at Maryland News Company be removed." Appel gave
a copy of the document to Melvin R. Trosch, one of the partners and the head of
the Company, shortly after it was signed. Trosch testified that it was given to him
in February 1961. Appel testified that he also gave copies to representatives of the
Union.
Appel also testified as to several unsuccessful trips he made to the union offices
accompanied by groups of employees for the purpose of obtaining the return of
their union cards. On the last trip he was also accompanied by James A. Ostendorf
(appearing herein as counsel for the Association) whom he consulted with respect
to obtaining the return of the cards.
Appel talked to some of the employees about forming an association and about
the middle of May a group of them "decided they were tired of waiting for a ruling
from Washington" on the Union's petition. On or about May 15, 1961, a group
of approximately 18 employees met with Ostendorf at which meeting the Associa-
tion was "formed." Toussaint M. Wallace, who was elected at the meeting as
chairman of the Association, testified that he requested Ostendorf to draft a proposed
contract to be presented to the Company which he received from Ostendorf toward
the end of May. Shortly thereafter a committee of five, including Wallace, met
with Trosch and discussed with him the terms of the proposed contract. The com-
mittee held several more meetings with Trosch and finally at a meeting on June 5
or 6 he presented them with a draft of a contract he had had prepared. It appears
that Trosch requested the committee to circulate the contract among the employees
to be signed by them , if they approved it. Thereafter the contract was circulated
MARYLAND NEWS COMPANY 217
among the employees as requested. The signatures of over 50 employees, includ-
ing the members of the committee, were affixed to the contract, as well as that of
Trosch for the Company. By its terms the contract was to be effective June 7, 1961.
B. The issues and concluding findings
The material issues raised in this proceeding are as follows:
1. Whether Respondent violated Section 8(a)(1) and (2) of the Act by recog-
nizing and bargaining with the Association and entering into an exclusive bargain-
ing agreement with it.
2. Whether Respondent violated Section 8(a)(1) and (3) of the Act by execut-
ing and maintaining said agreement in view of the union-security clause which it
contained.
3. Whether the union-security clause was invalid on its face.
4. Whether Respondent violated Section 8(a)(1) and (2) of the Act by per-
mitting employees acting in behalf of the Association to conduct meetings and
solicit members at its premises and to circulate the agreement on company time.
1. Recognizing, bargaining, and entering into the agreement
When the committee of five which represented the Association met with Trosch
in the latter part of May 1961 and presented him with a proposed collective-
bargaining agreement, it asserted that it represented a majority of the employees
(apparently in the unit of 60 which the Company had contended to be the appro-
priate unit). Trosch did not request proof of the claim of majority representation
but apparently relied on the committee's assertion and on the aforementioned copy
of the document he had seen "in February" (which document had been signed by
approximately 50 employees during the period of picketing between February 28
and March 3, 1961. The record fails to demonstrate that the committee' s assertion
of majority representation was based on fact. The meeting on May 15, 1961,
at which the Association was formed was attended by 18 employees according to
Wallace. Appel testified that he estimated there were closer to 30 employees at
the meeting. From my observation of the two witnesses, I am inclined to credit
Wallace's estimate as the more reliable in that he displayed less partisanship. Even
were it to be assumed that all of the 18 who attended the meeting were in favor
of having the Association represent them, they numbered considerably less than
a majority of the unit of 60. The testimony as to whether other employees joined
with the group of 18 is too vague to permit drawing an inference that the Associa-
tion did obtain authorization from a sufficient number of employees to warrant
the committee's assertion of majority representation. The document signed during
the period of picketing over 2 months prior to when the Association came into being
is of no probative value with respect to the Association's claim of representation.
Trosch testified that he presumed that the Association represented a majority, and,
therefore, he recognized the Association as the exclusive collective-bargaining repre-
sentative of the Company's employees and bargained with its committee After
several meetings with the committee Trosch had a contract prepared embodying
some of the proposals of the Association which he then presented to the committee
at the aforementioned meeting with it about June 5 or 6, 1961. None of the
witnesses could remember whether or not Trosch's signature was already on the
contract when he turned it over to the committee for circulation among the employ-
ees. Trosch admitted that at the time he was aware of the fact that the Board
had not as yet issued its decision in aforementioned Case No. 5-RC-3372, and
there is nothing in the record to indicate that the Union had withdrawn its claim
of representation or any basis for an inference that it had abandoned it.
It appears appropriate to conclude that Respondent recognized, bargained with,
and entered into an exclusive collective-bargaining agreement with the Association
while a real question concerning representation was pending. This case appears
to fall within the well-established Midwest Piping doctrine 2 of the Board that an
employer cannot arrogate to itself the determination of which of two rival labor
organizations it should recognize as the representative of its employees. When, as
in this case, an employer recognizes and bargains collectively with a labor organiza-
tion while a real question concerning representation is pending, it violates Section
8(a)(1) and (2) of the Act.3 Moreover, in this case there was also pending before
the Board a question concerning what would constitute an appropriate unit, the
'The doctrine derived from Midwest Piping & Supply Co., Inc, 63 NLRB 1060
3 Shea Chemical Corporation, 121 NLRB 1027 ; Swift and Company, 128 NLRB 732;
Reliance Fuel Oil Corp., 129 NLRB 1166 ; North Electric Company, 129 NLRB 675.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determination of which the Company also arrogated unto itself. In addition, it
has not even been demonstrated that, at the time, a majority of the employees which
were covered by the agreement which was executed had authorized the Association
to bargain for them. Under the circumstances, it does not appear to be of any
moment that a majority of the employees in the unit covered by the agreement
ratified it by affixing their signatures.
2. The union-security clause
The collective bargaining between the Company and the Association, which by
its terms became effective on June 7, 1961, provided, inter alia:
18. After 30 days' employment, all employees covered by this Contract shall
become members of the Union [the Association] and remain members in good
standing during the period this agreement remains in effect.
General Counsel contends that the security clause is invalid on its face because
it does not afford a 30-day grace period for those employees who were already
employed at the effective date of the contract and who had not as yet joined
the Association The Board has stated that union-security clauses are unlawful
"which specifically withhold from incumbent nonmembers . the statutory 30-
day grace period." Paragon Products Corporation, 134 NLRB 662. In Lapeer
Metal Products Co., 134 NLRB 1518, the Board affirmed the finding of the Trial
Examiner that a provision very similar to that above was invalid because it failed
to grant "the then employees" the 30-day grace period. It would appear that a
reasonable construction of the provision herein involved would not afford the
incumbent employees the required grace period .4 Therefore, I find it invalid and
its incorporation in the contract violative of Section 8(a)(1), (2), and (3) of the
Act. Even of the clause were not invalid on its face, in view of the circumstances
under which the contract was entered into in violation of Section 8(a)(1) and (2)
of the Act, the execution and maintenance by the Respondent of the contract would
constitute a violation of Section 8(a)(1) and (3) of the Act since it requires
membership in the Association as a condition of employment Duralite Co., Inc.,
132 NLRB 425.
3, Re allegations with respect to additional violations of Section 8(a)(1) and (2)
Although it does appear that the Company did give permission to hold a meeting
of the Association on the Company's premises, the record does not disclose that it
gave actual permission to employees acting on behalf of the Association to do
any more than that. In any event there is no showing that the Company declined
to give the Union similar privileges. While it is true that Trosch requested that the
committee circulate the contract among the employees for the purpose of obtaining
their signatures thereon if they approved it, it does not appear that he authorized
that it could be done on company time. I do not believe that General Counsel has
sustained the allegations of further independent violations of Section 8(a) (1) and
(2) as set forth in paragraph VII(a) and (c) of the complaint Even in the light
of the findings of other violations of the Act, I am of the opinion that the assistance
alleged was of a minimal character. It does not appear that any purpose would be
served in passing upon the question of whether Respondent's request that the contract
be circulated among the employees constitutes a violation of the Act, since, if it
were a violation, it would be derived from the violations already found and would
not require a broader remedy than that which will be recommended
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, which have been
found to be violative of the Act, occurring in connection with the operations of the
Respondent, described in section 1, 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 obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
4 The record does not disclose whether or not this construction was given effect.
MARYLAND NEWS COMPANY 219
I have found that Respondent recognized and bargained with the Association
as the representative of its employees and entered into an exclusive collective-
bargaining agreement with it, at a time when it had not been demonstrated that
it represented a majority of the employees covered by said agreement, and also at
a time when a real question concerning representation was pending, as well as a
question of what would constitute an appropriate unit. By such conduct and the
maintenance of said agreement Respondent has interfered with, restrained, and
coerced said employees in the exercise of their right freely to choose their own
bargaining representative, has accorded unlawful assistance and support to the
Association and has unlawfully discriminated against its employees by making mem-
bership in the Association a requisite for employment. In order to dissipate the
effect of its actions, I shall recommend that Respondent be ordered to withdraw
and withhold all recognition from the Association and that it cease giving effect
to the aforementioned agreement, or to any renewal or extension thereof, unless
and until such time as the Association shall have been certified by the Board as
the representative of an appropriate unit of its employees, and only then if the
agreement otherwise conforms to the provisions of the Act.
General Counsel indicated during the course of the hearing that he was not seek-
ing reimbursement of moneys paid by employees or deducted from their earnings
as an obligation of membership in the Association, it not appearing that any such
moneys were paid or deducted.
Nothing herein recommended shall be construed to require that Respondent vary
any existing term or condition of employment of its employees other than the
requirement of membership in the Association.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) of
the Act.
2. The Union (Charging Party) and the Association are labor organizations
within the meaning of Section 2(5) of the Act.
3. By recognizing the Association and by bargaining and entering into an exclusive
collective-bargaining agreement with the Association, while that organization was
not the representative of a majority of its employees covered by the agreement, and
at a time when a real question concerning representation and a question of the
appropriate bargaining unit were pending, Respondent violated Section 8(a)(1) and
(2) of the Act.
4. By the execution and maintenance of the aforesaid agreement which contained
a union-security clause, Respondent violated Section 8(a)(1) and (3) of the Act.
5 The aforesaid union-security clause was invalid by its terms in that it did not
provide for a 30-day statutory grace period for incumbent employees.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Respondent has not violated Section 8(a) (1) and (2) of the Act by the conduct
alleged in paragraph VII(a) and (c) of the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in the case, it is recommended, in order to effectuate the policies of
the Act, that Maryland News Company, the partners therein, its officers, agents,
successors, and assigns shall:
1. Cease and desist from:
(a) Recognizing the Association as the exclusive representative of any unit of
its employees for purposes of collective bargaining, unless and until said labor
organization shall have been certified by the Board as the exclusive bargaining rep-
resentative of its employees in an appropriate unit.
(b) Giving effect to its agreement with the Association entered into on or about
June 6, 1961, or to any extension, renewal, modification, or supplement thereof,
or any superseding agreement, unless and until the Association shall have been certi-
fied by the Board as aforesaid and only then if the agreement conforms to the
provisions of the Act.
(c) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
2 Take the following affirmative action which will effectuate the policies of the
Act:
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Withdraw and withhold all recognition from the Association as the collective-
bargaining representative of any unit of its employees, unless and until said labor
organization shall have been certified by the Board as the representative of its
employees in an appropriate unit.
(b) Post in its place of business in Baltimore, Maryland, copies of the notice
attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the
Regional Director for the Fifth Region, shall, after being signed by a representative
of Respondent, be posted by it immediately after receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered, defaced or covered
by and other material.
(c) Notify said Regional Director in writing, within 20 days from the receipt of
this Intermediate Report, what steps have been taken to comply herewith.6
It is further recommended that the complaint be dismissed insofar as it relates to
the conduct alleged in paragraph VII (a) and (c) thereof.
In the event that these recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "A Decision and
Order."
6In the event that these recommendations be adopted by the Board, this provision shall
be modified to read : "Notify said Regional Director in writing within 10 days from the
date of this Order what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT assist or support Maryland News Employees Association, or
any other labor organization, or otherwise interfere with the representation of
our employees through a labor organization of their own choosing.
WE WILL NOT recognize said Association, or any successor thereto, as the
collective bargaining representative of any unit of our employees, unless and
until said Association shall have been certified by the Board as the exclusive
representative of our employees in an appropriate unit.
WE WILL NOT give effect to the collective-bargaining agreement we entered
into with said Association, or enter into or give effect to any extension, renewals,
modification, or supplement thereof, or any superseding agreement with said
Association, unless and until said Association shall have been certified by the
Board as the exclusive representative of our employees in an appropriate unit,
and only then if the agreement conforms to the provisions of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of rights guaranteed in Section 7 of the Act.
WE WILL withdraw and withhold all recognition from said Association as
the collective-bargaining representative of any unit of our employees, unless and
until said Association shall have been certified by the Board as the exclusive
representative of our employees in an appropriate unit.
MARYLAND NEWS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 N. Calvert Street, Baltimore, Maryland (Telephone Number, Plaza 2-
8460, Extension 2100), if they have any question concerning this notice or compliance
with its provisions.