Michigan Advertising Distributing Co.

National Labor Relations Board - Board Decisions

Dec 15, 1961

134 N.L.R.B. 1289 (N.L.R.B. 1961)

a
I
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1289
Contracting Maintenance
O'Kane Marine Repair Company Kent Equipment Corporation
1024 Jefferson Street, Hoboken , 10 Java Street , Brooklyn 22, N.Y.
N.J.
Contracting Marine Carpenters
Anbar Marine Company
559 Third Avenue,
N.Y.
Brooklyn 15,
Chelsea Ship Repair Corporation
400 West 23rd Street, New York 11
Dayton Contracting Co., Inc.
9315 Ft . Hamilton Parkway, Brook-
lyn, N.Y.
E. G. Griffith Company, Inc.
161 Remsen Street, Brooklyn, N.Y.
Frank J. Holleran
616 Court Street, Brooklyn 31, N.Y.
Lee & Palmer, Inc.
4209 Farragut Road, Brooklyn,
N.Y.
Anderson-Linton Lumber Co., Inc.
160 42d Street, Brooklyn 32, N.Y.
Court Carpentry & Marine Contractors
Co., Inc.
12-20 Union Street, Brooklyn, N.Y.
Daniel J. Devaney, Inc.
708 Court Street , Brooklyn 31,
N.Y.
Hamilton Marine Contracting Co., Inc.
807 Third Avenue, Brooklyn 32,
NtY.
Hooper Lumber Co., Inc.
Kane and Columbia Streets, Brook-
lyn 2, N.Y.
Marmarine Contracting Co., Inc.
75 DeGraw Street , Brooklyn 2,
N.Y.
Gerald Sklar and Alfred Goldman , Co-Partners d/b/a Michigan
Advertising Distributing Company and Detroit Mailers Union
No. 4, International Mailers Union, Ind.
Gerald Sklar and Alfred Goldman , Co-Partners d/b/a Michigan
Advertising Distributing Company and Detroit Mailers Union
No. 4, International Mailers Union, Ind.
Detroit Mailers Union No . 40, International Typographical
Union, AFL-CIO and Detroit Mailers Union No. 4, Inter-
national Mailers Union, Ind. Cases Nos. 7-CA-2615, 7-CA-2747,
and 7-CB-688. December 15, 1961
CONSOLIDATED DECISION AND ORDER
On July 18, 1960, Trial Examiner Louis Libbin issued his Inter-
mediate Report in Case No. 7-CA-2615, finding that Gerald Sklar
and Alfred Goldman, Co-Partners d/b/a Michigan Advertising Dis-
tributing Company, hereinafter called Respondent MAD, had en-
gaged in and were engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, Respondent MAD filed exceptions to the Inter-
mediate Report, and a supporting brief.
On November 22, 1960, Trial Examiner James A. Shaw issued his
Intermediate Report in Cases Nos. 7-CA-2747 and 7-CB-688, finding
that Respondent MAD and Respondent Detroit Mailers Union No.
40, International Typographical Union, AFL-CIO, herein called
134 NLRB No. 123.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ITU, had engaged in and were engaging in certain unfair labor prac-
tices, and recommending that Respondent MAD and Respondent ITU
cease and desist therefrom and take certain affirmative action, as set
forth in the Intermediate Report attached hereto.' Thereafter, Re-
spondent MAD and Respondent ITU filed exceptions to the Inter-
mediate Report, and supporting briefs.
On August 24, 1960, Respondent MAD filed a motion to consolidate
Case No. 7-CA-2615 with Cases Nos. 7-CA-2747 and 7-CB-688, and
on March 10, 1961, Respondent ITU also filed a motion to consolidate
all three cases. As the determinative issues in all cases are similar,
the Board, in order to effectuate the policies of the Act, hereby con-
solidates these cases for decisional purposes and issues this Consoli-
dated Decision and Order.2
The Board has reviewed the rulings of the Trial Examiners made
at the hearings, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Reports, the exceptions and briefs, and the entire record in
each proceeding,' and hereby adopts the findings,4 conclusions, and
recommendations of the Trial Examiners as modified herein.
The issues involved in these complaint cases are bottomed on the
Board's multiemployer unit findings in American Publishing Cor-
I Corrections and additions made by the Trial Examiner in an erratum , issued on
December 2, 1960, are incorporated in the Intermediate Report.
2 During the course of the hearing in Case No . 7-CA-2615, ITU moved to intervene
and the Trial Examiner denied its motion . Thereafter , on August 24, 1960 , ITU filed
exceptions to the Trial Examiner 's ruling, and separately filed with the Board another
motion "for the purpose of reopening the record and remanding these proceedings in order
that petitioner ( ITU) may participate therein." The ITU contends , in sum, that it
should be permitted to intervene for the purpose of (1) Introducing certain facts not
presented in the earlier representation proceeding and to show that at all material times
it has represented a majority of the mailers employed by Respondent MAD; and ( 2) pro-
tecting its interests in its collective -bargaining agreement with Respondent . The Board
finds no merit in ITU's exceptions to the Trial Examiner 's ruling, and its separate motion
to intervene in Case No . 7-CA-2615 is hereby denied As to ( 1), except for the additional
fact concerning the contract modification in 1960, it does not appear that ITU seeks to
offer any additional facts not fully considered by the Board in the earlier representation
proceeding and reconsidered by the Board in these consolidated proceedings . Moreover,
the 1960 contract negotiations and modifications are now the subject of the consolidated
complaint in Cases Nos . 7-CA-2747 and 7-.CB-688, and the fact of those negotiations was
fully presented during the hearing in that matter . As we have herein consolidated all
three cases for the purposes of decision , the additional fact which the ITU wished to pre-
sent in Case No 7-CA-2615 has now been fully considered by the Board in this Consoli-
dated Decision and Order . As to ( 2), in Case No . 7-CA-2615, the contract between the
ITU and Respondent MAD Is not under attack , nor is its existence in issue. Therefore,
ITU is not a necessary party to that proceeding . National Licorice Company v . N L R.B.,
309 U.S. 350 . In any event, ITU, as a party Respondent in Case No . 7-CB-688, herein
consolidated for purposes of decision with Cases Nos. 7-CA-2615 and 7-CA-2747, has
been given full opportunity to present its contract interests in this matter
3 The Respondents ' requests for oral argument before the Board are hereby denied as
the records , exceptions, and briefs adequately present the issues and positions of the
parties.
' We note and correct the following typographical error appearing on page 1315 , line 47,
of the Intermediate Report in Case No. 7-CA-2615. The record shows that this portion
of the Intermediate Report should read, in pertinent part, "goods valued in excess of
$ 500,000 annually," and not $50 ,000 as now appears.
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1291
poration, et al., 121 NLRB 115, and its Supplemental Decision, Order,
and Certification of Representatives in that proceeding, 124 NLRB
1227. Briefly, in the representation proceeding, the petitioner, Detroit
Mailers Union No. 4, International Mailers Union, Ind., herein called
IMU or the Charging Union, sought a multiemployer unit of mailers
employed by several commercial job printing and mailing shops in
the Detroit area, including those mailers employed by Respondent
MAD. The Intervenor, ITU (the Respondent Union herein), op-
posed this request, contending, in part, that past bargaining history
with the employers was on a single-employer basis and that therefore
only separate units of each employer's mailers were appropriate. On
July 23, 1958, rejecting the contention that past bargaining had been
on a single-employer basis, the Board found, for reasons fully set
forth in its Decision and Direction of Election, that the multiemployer
unit sought by the IMU was appropriate, and directed an election in
such unit.
Subsequently, on July 31, the ITU filed a motion seeking, in per-
tinent part, a rehearing as to the appropriateness of the unit or, in
the alternative, an amendment excluding Respondent MAD's em-
ployees from the multiemployer unit. On August 15, the Board is-
sued an order denying the ITU's petition for rehearing on the ground
that it contained nothing not previously considered by the Board.
However, the Board reserved ruling as to whether or not MAD's em-
ployees were properly included in the multiemployer unit, and
directed that the Regional Director, in conducting the election, should
vote the employees of Respondent MAD by challenged ballot. There-
after, an election by secret ballot was conducted among those included
in the multiemployer unit. The tally of ballots showed that IMU
won the election in the multiemployer unit.' On October 31, 1958,
the Board issued an order which, in pertinent part, directed that the
record be reopened for the purpose of further hearing on the question
of whether or not MAD's employees were properly included in the
multiemployer unit.
The hearing was held and additional evidence was received by
the Board. The additional evidence presented, as well as the argu-
ments made by the parties, framed this as the major issue : whether
or not the fact that MAD, by separately renegotiating an agree-
ment with ITU, after the original representation hearing had closed
but before the Board issued its Decision and Direction of Election,
had timely and conclusively shown its intention to bargain as a single
employer.6
r, The results would have been the same even if all the challenged ballots cast by MAD's
employees had been counted against the IMU.
9 The original representation hearing in this matter was formally closed on November 26,
1957, and the Board issued its Decision and Direction of Election on July 23, 1958 How-
ever, on January 16, 1958, even though the Board was then determining the question con-
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A panel majority of the Board found that, as MAD and the ITU
were well aware that the negotiations were taking place at the very
time the Board was considering the question concerning representa-
tion, but did not bring such facts to the Board's attention until
after the Decision and Direction of Election had issued, the parties
were "estopped by their own conduct" from now complaining that
the Board had not earlier considered the full facts in its unit deter-
mination, and that such facts could not now be used "to fragmentize
the unit." Accordingly, the panel majority denied the ITU's mo-
tion to exclude MAD's employees from the multiemployer unit. On
October 16, 1959, the Board certified the IMU as the collective-
bargaining representative for the employees in the multiemployer
unit, including MAD's employees.'
The Respondents now contend, in part, that the Board erred in
finding that a multiemployer unit, which included Respondent
MAD's employees, was appropriate. In addition, Respondent MAD
contends that the Board's unit findings were arbitrary and capri-
cious, and without due process of law; and urges that the "appropri-
ateness of that earlier unit determination should be reviewed." In
sum, Respondents argue that as MAD's employees were not properly
included in the multiemployer unit, and as the complaints involved
herein are bottomed on the inclusion of MAD's employees in the
now certified unit, both complaints should be dismissed in their
entirety.
After a careful review of the entire representation proceeding,
the Board finds no merit in Respondents' contentions. The Board
hereby reaffirms its earlier multiemployer unit findings set forth in
its Supplemental Decision, Order, and Certification of Representa-
tives. Moreover, we also affirm our certification of IMU as the ex-
clusive bargaining representative of all the employees in that unit
including the employees of Respondent MAD.
1. As more fully set forth in the Intermediate Report in Case
No. 7-CA-2615, on October 21, 1959, shortly after the Board certi-
fied the Charging Union as the exclusive collective-bargaining agent,
Thiel, the president of the Charging Union, sent a letter to each of
cerning representation of MAD's employees , the ITU requested that MAD renegotiate
certain provisions of the collective -bargaining agreement then covering MAD's employees.
The ensuing negotiations extended from March 5, 1958, to approximately June 7, 1958.
The renegotiated contract was executed early in August 1958, subsequent to the issuance
of the Board's Decision and Direction of Election . However, it was not until after the
Decision and Direction of Election had issued that the Board first learned of the separate
negotiations.
7 Member Bean dissented . He would have found that the evidence of the separate con-
tract negotiations was properly before the Board, and that such evidence clearly showed
that MAD , at an appropriate time, had abandoned multiemployer bargaining, had with-
drawn from the multiemployer unit, and was currently engaged in separate , single-employer
bargaining. Accordingly , he would not have included MAD's employees in the multi-
employer unit.
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1293
the employers in the multiemployer unit, including Respondent
MAD, and also to the Association.8 The letter requested "an im-
mediate meeting with the representative of your group or with you
individually in order to negotiate a collective bargaining contract
covering wages, hours, and conditions of employment for your
employees."
On October 26, a staff assistant of the Association notified each
of the employers involved, including Respondent MAD, of the
Charging Union's request to bargain, and of a future meeting to be
held among the employers to discuss bargaining and the selection of
representatives for the coming negotiations. On November 2, 1959,
all of the employers in the multiemployer unit, including Respond-
ent MAD, were notified that a meeting of the group was scheduled
for November 5. The meeting was held but no representatives of
Respondent MAD appeared. Other employer representatives se-
lected a chairman to head the employer's negotiating committee, and
decided upon a date for a collective-bargaining meeting with the
Union.' However, no formal negotiating committee was chosen.
Later that day, all of the employers in the multiemployer unit, in-
cluding Respondent MAD, were notified of what had transpired at
the meeting, were notified that a meeting would be held on Monday,
November 9, 1959, at 1:30 p.m., at the Association's officers for the
purpose of negotiating a contract, and were invited to attend the
meeting.
On November 9, about 10:45 a.m., a staff assistant of the Associa-
tion spoke to Sklar, one of the partners of Respondent MAD, by
telephone. Sklar stated he had received the November 5 letter from
the Association, but indicated he would not attend the meeting that
afternoon. About 45 minutes before the scheduled negotiations were
to begin, the same staff assistant of the Association received from
Sklar a telegram addressed to the Association. The telegram stated
that Respondent MAD did not consider itself "part of any multi-
employer group for contract negotiataions," that the Association was
not authorized to act for Respondents "in present negotiations," and
that the telegram may be considered "as verification of our with-
drawal from the Association." A copy of this telegram was also
received by the Charging Union about the same time.
Subsequent negotiations were conducted, agreement reached, and
on January 12, 1960, a contract was executed by the Charging Union
and the members of the multiemployer unit, except for Respondent
MAD. The record also shows that after the agreement had been
8 As more fully set forth in the earlier representation proceeding , most, but not all, of
the employers in the multiemployer unit found to be appropriate were members of the
Graphic Arts Association of Michigan, Inc.
e At least two of the commercial shops represented at this meeting were not members
of the Association.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrived at, but before it was reduced to writing, the Charging Union's
attorney, Goldstein, notified Respondent MAD, by letter, that the
telegram of November 9 had not, in his opinion, removed MAD from
the multiemployer group, did not absolve MAD from the legal obli-
gation to sign the contract already negotiated, and that the Charg-
ing Union would present the contract to MAD for its signature.
Goldstein also requested that MAD notify him by return mail
whether it intended to sign, and if no reply was received by January
3, 1960, this would be interpreted as indicating that MAD had no
intention of signing. Respondent MAD made no reply.
On January 6, Goldstein telephoned Sklar and asked whether he
was to infer from its actions that MAD did not intend to sign the
contract. Sklar replied that that was a good inference to draw, but
preferred that Goldstein call MAD's attorney. Goldstein thereupon
called MAD's attorney, but did not obtain an agreement that MAD
would, or would not, sign the contract. On February 18, 1960, Thiel,
president of the Charging Union, accompanied by the chairman of
the Charging Union's joint negotiating committee, went to MAD's
premises to see Sklar. When told that Sklar was busy, Thiel handed
his business card and a copy of the negotiated contract to the person
who had met them. Thiel asked that Sklar call him at his (Sklar's)
convenience. Thiel was told that the message and the contract would
be given to Sklar. Sklar never called Thiel. In its answer, Respond-
ent MAD admits that it has failed and refused to sign the contract.
It is this failure and refusal to sign the agreement negotiated by the
Charging Union and the other members of the multiemployer unit
found to be appropriate by the Board which gave rise to the 8(a) (5)
and (1) allegations in Case No. 7-CA-2615.
On or about April 4, 1960, Respondent MAD and the Respondent
ITU negotiated, entered into, and effected new wage rates and other
amendments to their existing contract. It is these additional negotia-
tions, plus the admitted fact that since November 9, 1959, Respondent
MAD and Respondent ITU maintained and gave full force and effect
to a bargaining agreement between them, and both either filed, pre-
sented, or processed grievances for employees within the unit found
appropriate by the Board, notwithstanding that IMU was, and is,
the duly certified bargaining representative of said employees, that
gave rise to the 8(a) (1), (2), and (5) and 8(b) (1) (A) allegations in
Cases Nos. 7-CA-2747 and 7-CB-688.
In Case No. 7-CA-2615, Respondent MAD contends, in principal
part, that even assuming the Board properly included its employees
in the multiemployer unit, it made a timely and effective withdrawal
from the multiemployer unit. Based on this contention, Respondent
MAD further argues that the agreement negotiated with the IMU
did not cover a unit which included its employees, and that it was
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1295
under no obligation to sign the contract. 'The Trial Examiner* found
that Respondent MAD did not effectively remove itself from the
certified multiemployer unit, that the contract negotiated with the
Charging Union, dated January 12, 1960, covered Respondent's em-
ployees as part of the multiployer unit, and that Respondent MAD
violated Section 8(a)(5) and (1) by its failure and, refusal, upon
IMU's request, to sign the agreement.
In Ray Brooks v. N.L.R.B., 348 U.S. 96, the U.S. Supreme Court
approved the principle that a certification based on a Board-
conducted election must be honored for a reasonable period of time,
normally 1 year, in the absence of unusual circumstances. Here, Re-
spondent MAD's employees were properly included in the multi-
employer unit of mailers, and on October 16, 1959, IMU was certified
as the exclusive collective-bargaining representative of the employees
in that unit. There is no showing of . any "unusual circumstances."
Respondent MAD was therefore bound to honor that certification
for a reasonable period of time. Moreover, to now find, on the facts
herein presented, that Respondent MAD made a timely and effective
withdrawal from the certified unit less than 3 weeks after the issuance
of the certification and before the Charging Union had an oppor-
tunity to represent and negotiate a contract for the employees in the
unit, would make a mockery of the doctrine of Ray Brooks and the
Board's representation and election processes, and would ignore the
fundamental purpose of the Act, namely, fostering and maintaining
stability in the bargaining relationship. Thus, in view of the fore-
going and on the basis of the entire record we find that Respondent
MAD did not make a timely and effective withdrawal from the multi-
employer unit and that at all pertinent times herein its employees
were included in the certified multiemployer unit.
It is well settled that the failure to sign an agreement negotiated
with the certified bargaining agent constitutes a failure to bargain
within the meaning of Section 8 (a) (5) and (1) of the Act.10 More-
over the failure of an employer member of a multiemployer unit to
sign the contract negotiated by the parties to the unit has also been
found violative of Section 8(a) (5) and (1).11 In this regard the
record shows that Respondent MAD was fully apprised of the Charg-
ing Union's request for negotiations and was also apprised of the
fact that multiemployer negotiations were actually taking place.
Indeed, Respondent was urged to attend the negotiations. Moreover,
Respondent admits that it since has failed and refused to sign the
agreement arrived at during the course of the negotiations. On these
facts and on the basis of the entire record, we find, as did the Trial
10 See, e g., H. J. Heinz Company v. N.L.R.B., 311 U.S. 514, 523; Cosmopolitan Studios,
Inc, 127 NLRB 788, 789.
11 Cosmopolitan Studios, Inc, supra ; Anderson Lithograph Company, Inc. and Jeffries
Banknote Company, 124 NLRB 920.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner, that by failing and refusing to sign the collective-
bargaining agreement negotiated by the Charging Union and repre-
sentatives of employers of employees in the multiemployer unit which
the Board has heretofore found to be appropriate, Respondent MAD
violated Section 8(a) (5) and (1).
2. In view of our foregoing findings, and for those reasons fully
set forth in the Intermediate Report in Cases Nos. 7-CA-2747 and
7-CB-688, we also find, as did the Trial Examiner, that Respondent
MAD further violated Section 8(a) (5) and (1) by, on and after
November 9, 1959, continuing to recognize and bargain and negotiate
with Respondent ITU as the exclusive representative of its employees;
-by maintaining and giving full force and effect to a collective-
bargaining agreement with Respondent ITU; by continuing to
process grievances presented by Respondent ITU; and by, on or about
April 4, 1960, entering into, negotiating, and effecting amendments to
a collective-bargaining agreement with ITU covering wages, hours,
and terms and conditions of employment of those employees employed
in the unit found appropriate by the Board, notwithstanding that the
Charging Union was, and is, the certified bargaining representative of
said employees.12
3. The record also fully establishes, and we find, for the reasons
set forth by the Trial Examiner, that by continuing to recognize the
ITU in the face of the Board's certification of the Charging Union
as its employees' collective-bargaining representative, and by other-
wise engaging in the conduct described in paragraph 2, above, Re-
spondent MAD gave, and is giving, unlawful assistance and support
to Respondent ITU in violation of Section 8(a) (2) of the Act.13
4. There remains for consideration the issue whether or not Re-
spondent ITU violated Section 8(b) (1) (A) by bargaining with
Respondent MAD regarding wages, hours, and other terms and con-
ditions of employment of the employees of Respondent MAD, by
negotiating and entering into amendments to the collective-bargaining
agreement with Respondent MAD, and by presenting grievances on
behalf of Respondent MAD's employees, notwithstanding the fact that
the Charging Union was, and is now, the duly certified bargaining
representative of said employees. For the following reasons, we find
that Respondent ITU did so violate the Act.
Recently the Supreme Court, in Bernhard-Altmann,'' was asked to
decide "whether it was an unfair labor practice for both an employer
12 E g, Medo Photo Supply Corporation v. N.L R.B., 321 U.S. 678, 683-684, wherein the
Court stated , "The National Labor Relations Act makes it the duty of the employer to
bargain collectively with the chosen representative of his employees . The obligation being
exclusive . . . it exacts the negative duty to deal with no other."
1s Bernhard-Altmann Texa8 Corporation, 122 NLRB 1289 , enfd . 280 F. 2d 616 ('C A.D C) ,
affd. 366 U.S. 731 ; Alco-Oravure, Division of Publication Corporation , 124 NLRB 1027.
It Intl. Ladies' Garment Workers ' Union, AFL-CIO v. N.L.R .B., and Bernhard -Altmann
Texas Corp ., 366 U .S. 731.
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1297
and a union to enter into an agreement under which the employer
recognized the union as exclusive bargaining representative of certain
of his employees although in fact only a minority of those employees
had authorized the union to represent their interests." The Court, in
addition to finding that such conduct violated Section 8(a) (1) and
(2), also found that it was violative of Section 8(b) (1) (A). Iii
making these findings the Court commented, in pertinent part:
Bernhard-Altmann granted exclusive bargaining status to an
agency selected by a minority of its employees, thereby impressing
that agent upon the nonconsenting majority. There could be no
clearer abridgment of § 7 of the Act, assuring employees the right
"to bargain collectively through representatives of their own
choosing" or "to refrain from such activity." It follows, without
need of further demonstration, that the employer activity found
present here violated § 8(a) (1) of the Act which prohibits em-
ployer interference with, and restraint of employee exercise of § 7
rights. [Emphasis supplied.]
The Court thereafter noted that as it "was the intent of Congress
[by the addition of 8(b) (1) (A)] to impose upon unions the same re-
strictions which the Wagner Act imposed on employers with respect
to violations of employee rights," the union, in like manner, violated
8(b) (1) (A).
In the instant proceedings, the record fully establishes that on and
after November 9, 1959, Respondent ITU bargained with Respondent
MAD regarding wages, hours, and other terms and conditions of
employment of the employees of Respondent MAD. It also appears
that Respondent ITU, on or about April 4, 1960, negotiated with
Respondent MAD certain amendments to their existing collective-
bargaining agreement , and from time to time, on and after November
9, 1959, presented grievances on behalf of the employees. Moreover,
during this time Respondent MAD's employees were appropriately
included in a multiemployer unit for which the IMU was the certified
collective-bargaining agent.
Accordingly, in view of the foregoing facts and findings , and on the
basis of the Bernhard-Altmann case, we find that the above-described
conduct, Respondent ITU restrained and coerced Respondent MAD's
employees in violation of Section 8 (b) (1) (A)."
15 Respondent ITII submitted its brief to the Board before the, Supreme Court handed
down its opinion in Bernhard-Altmann Thus, the principal contentions raised by this
Respondent in the instant case have now been decided by the Supreme Court, and would
appear to require no further comment from the Board With respect to the ITD's con-
tention that the complaint alleged ITII restrained .and coerced employees of Respondent
MAD, but that the Trial Examiner found restraint and coercion of employees of other
employers in the multiemployer unit, we find no merit to such contention. We have here
found , as alleged in the complaint , that Respondent ITII did in fact restrain and coerce
Respondent MAD's employees by conduct described elsewhere herein. Accordingly, our
630849-62-vol 134-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found, in agreement with the Trial Examiners, that Re-
spondents have engaged in certain unfair labor practices, we shall
order Respondents to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondent MAD refused to bargain with the
Charging Union by failing and refusing to sign the contract negoti-
ated by the Charging Union and the representatives of the multiem-
ployer group, dated January 12, 1960, and as the record shows that
this agreement is to continue in full force and effect to November 30,
1962, we shall order Respondent MAD to forthwith sign said
agreement.
Having further found that Respondent MAD violated the Act by
according Respondent ITU continued recognition as the collective-
bargaining representative of its employees in the multiemployer unit
heretofore found to be appropriate, notwithstanding that another
union was certified as the collective-bargaining agent of the employees
in that unit, we shall order Respondent MAD to withdraw and with-
hold all such recognition from Respondent ITU. We shall further
order that Respondents cease giving effect to any agreements, con-
tracts, or understandings between themselves respecting the employees
in the multiemployer unit heretofore found appropriate by the Board,
or to any modifications or extensions thereof.
ORDER
A. Upon the entire records in these cases, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that Gerald Sklar and Alfred
Goldman, Co-Partners d/b/a Michigan Advertising Distributing
Company, Detroit, Michigan, their agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Recognizing Respondent ITU as the representative of its em-
ployees in the unit heretofore found appropriate by the Board and
fully set forth in the Intermediate Reports attached hereto, for the
purpose of dealing with Respondent MAD concerning grievances,
findings herein do not extend beyond the limits of the complaint, and Respondent ITU
had full opportunity to present its defense.
Nor do we find merit in ITU's contention that matters going to the fact of restraint
and coercion presented in its offer of proof should be received by the Board. As the
Trial Examiner found , the offer of proof contained matters which ,are essentially a re-
litigation of the representation proceeding. But, assuming the facts contained in the offer
of proof as true, our opinion in this matter would be the same. Here -the ITU was acting
as the exclusive collective-bargaining agent of Respondent MAD's employees at the very
time another union had been certified as the collective-bargaining agent of those employees
In view of the holding in Bernhard-Altmann , this fact alone is sufficient to establish a
violation.
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1299
wages, rates of pay, hours of employment,, or other, terms and condi-
tions of employment.
(b) Giving any force or effect to the current collective-bargaining
agreements executed and maintained by Respondent MAD and Re-
spondent ITU.
(c) Refusing to bargain collectively with Detroit Mailers Union
No. 4, International Mailers Union, Ind., as the exclusive bargaining
representative of its employees in the appropriate unit with respect
to rates of pay, wages, hours of employment, and other terms and
conditions of employment.
(d) Refusing to sign the agreement, dated January 12, 1960, ne-
gotiated with Detroit Mailers Union No. 4, International Mailers
Union, Ind., by the multiemployer group.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Detroit Mailers
Union No. 40, International Typographical Union, AFL-CIO, as the
representative of its employees for the purpose of dealing with Re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other terms and conditions of employment.
(b) Upon request, bargain collectively with Detroit Mailers Union
No. 4, International Mailers Union, Ind., as the exclusive bargaining
representative of the employees in the appropriate multiemployer
unit.
(c) Forthwith sign the agreement, dated January 12, 1960, negoti-
ated with Detroit Mailers Union No. 4, International Mailers Union,
Ind., by the multiemployer group.
(d) Post at its plant at Detroit, Michigan, copies of the notice at-
tached hereto marked "Appendix A." 16 Copies of said notice, to be
furnished by the Regional Director for the, Seventh Region, shall,
after being duly signed by an authorized representative of Respondent
MAD, be posted immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps Respondent MAD has taken to comply herewith.
B. Upon the entire record, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, the National Labor Rela-
19 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order;'
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Board hereby orders that the Respondent, Detroit Mailers Union
No. 40, International Typographical Union, AFL-CIO, its officers,
agents, representatives, successors, and assigns, shall :
1. Cease and desist from :
(a) Acting as the collective-bargaining representative of any of
the Respondent MAD's employees included in the multiemployer unit
heretofore found appropriate by the Board and fully described in the
Intermediate Reports attached hereto.
(b) Enforcing or attempting to enforce the current collective-bar-
gaining agreements executed and maintained between it and Respond-
ent MAD covering those employees in the multiemployer unit de-
scribed above.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) As hereafter set forth, post copies of the notice attached hereto
marked "Appendix B." 11 Copies of said notice, to be furnished by
the Regional Director for the Seventh Region, shall, after being duly
signed by an official representative of the Union, be posted by said
Union immediately upon receipt thereof at its business office and
customary membership meeting places, including all places where
notices to members are customarily posted, and be maintained by it
for a period of 60 consecutive days thereafter. Reasonable steps shall
be taken by the Union to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Furnish to the Regional Director for the Seventh Region signed
copies of the said notice attached hereto marked "Appendix B" for
posting by Respondent MAD, if said employer be willing, in places
where notices to their employees are customarily posted.
(c) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ent ITU has taken to comply herewith.
MEMBER FANNING, dissenting :
As indicated by the majority, the complaints in these cases are bot-
tomed on a Supplemental Decision, Order, and Certification of Rep-
resentatives in American Publishing Corporation, et al., 124 NLRB
1227, where a panel majority of the Board, with Member Bean dis-
senting, found that a multiemployer unit, including Respondent
MAD's employees, was appropriate. For the reasons fully set forth
by Member Bean in his dissenting opinion therein, I would find that
Respondent MAD effectively withdrew from the multiemployer unit,
and therefore was not appropriately included in such unit. Accord-
ingly, I would dismiss the complaints herein which allege that Re-
spondent MAD's refusal to sign a multiemployer contract was a viola-
19 See footnote 16. '
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1301
tion of Section 8 (a) (5), that its recognition of, and negotiation of
separate contracts with Respondent ITU were violations of Section
8(a) (2) and (5), and that Respondent ITU violated Section
8(b) (1) (A) by negotiating such separate contracts.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL withdraw and withhold all recognition from Detroit
Mailers Union No. 40, International Typographical Union, AFL-
CIO, as the collective-bargaining representative of all our em-
ployees included in the multiemployer unit described below,
and will not recognize the said labor organization as such
representative.
WE WILL bargain collectively upon request with Detroit Mailers
Union No. 4, International Mailers Union, Ind., as the exclusive
bargaining representative of all our employees in the appropriate
unit described below with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment. The
appropriate unit is:
All employees doing work appertaining to mailing, such as
addressing, tagging, stamping, labeling, bundling, or wrap-
ping; cutting lists or wrappers (including galley work) ;
operating stencil machines, filing or correcting stencils, sort-
ing, routing, dissecting, or marking wrappers; taking bundles
or papers from conveyors or escalators; stacking, jogging,
folding; handling of bundles or mail sacks; distributing,
counting of papers (leaving or returning) ; typing by hand
or power machine; sacking, delivering papers to mailers,
carriers, agents, or newsboys; inserting or dispatching of
papers, envelopes, magazines, or circulars; whether done by
hand or power machines, including auxiliary machines used
in preparatory work for making plates, stencils, or any de-
vices that may be used in placing names and addresses on
wrappers, or papers now in use or in the future may be intro-
duced, and jogging of papers or wrappers to be used on any
automatic mailing machine, employed by the commercial
shops, i.e., Accurate Mailing & Distributing Service; Ameri-
can Mailers and Binders; Chene Printing Co.; Detroit Gra-
vure Corporation; Gratiot-Herald, Inc.; Jourdan Co., Inc.,
Michigan Advertising Distributing Co.; Michigan Catholic
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co.; and Reliable Mailing Service Co. at their plants in
Detroit, Michigan , excluding all other employees, office and
clerical employees , guards, and supervisors as defined in the
Act, and other employees covered by contracts involving work
other than specified above. _
WE WILL forthwith sign the agreement , dated January 12,
1960, negotiated by the multiemployer group with Detroit Mailers
Union No. 4, International Mailers Union , Ind. The agreement
covers the employees in the multiemployer unit found appropri-
ate by the Board in a prior representation proceeding , and set
forth above.
WE WILL NOT enter into , renew, give effect to, or publicize any
negotiations , agreements , or understanding with Detroit Mailers
Union No . 40, International Typographical Union , AFL-CIO,
covering those employees in the unit described above.
GERALD SKLAR AND ALFRED GOLDMAN , CO-PARTNERS
D/B/A MICHIGAN ADVERTISING DISTRIBUTING
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.
APPENDIX B
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF GERALD
SKLAR AND ALFRED GOLDMAN, CO-PARTNERS D/B/A MICHIGAN AD-
VERTISING DISTRIBUTING COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT maintain, continue, give effect to, or enforce any
agreement with Gerald Sklar and Alfred Goldman, Co-Partners
d/b/a Michigan Advertising Distributing Company, or act in
any capacity as the collective-bargaining representative of any of
the aforesaid Company's employees included in the multiemployer
unit found appropriate by the Board in a prior representation
proceeding, and further described in the National Labor Rela-
tions Board's Decision and Order.
WE WILL NOT in any like or related manner restrain or coerce
the aforedescribed employees of Gerald Sklar and Alfred Gold-
man, Co-Partners d/b/a Michigan Advertising Distributing
MICHIGAN ADVERTISING DISTRIBUTING, COMPANY 1303
Company, in the exercise of the rights guaranteed them in Section
7 of the Act.
DETROIT MAILERS UNION No. 40, INTERNATIONAL
TYPOGRAPHICAL UNION, AFL-CIO,
Union.
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding with all the parties represented, was heard before Trial Ex-
aminer James A. Shaw, in Detroit, Michigan, on July 21, 1960, on the consoli-
dated complaint of the General Counsel, and answers of Gerald Sklar and Alfred
Goldman, Co-Partners d/b/a Michigan Advertising Distributing Company, Case
No. 7-CA-2747, herein referred to as the Respondent Company, and Detroit
Mailers Union No. 40, International Typographical Union, AFL-CIO, Case No.
7-CB-688, herein referred to as the Respondent Union, and at times as ITU.
The issues litigated were whether or not the Respondent Company violated Section
8(a)(5), (2), and (1) of the Act, and the Respondent Union violated Section
8(b)(1) (A) of the Act, by entering into collective-bargaining agreements during
the period that the Charging Union, Detroit Mailers Union No. 4, International
Mailers Union, herein referred to as the Mailers Union, was the certified bar-
gaining agent for the Respondent Company' s employees . The Respondents in their
respective answers admit that they engaged in the conduct alleged in the com-
plaint, but deny that it was violative of the Act. Since the pleadings for the most
part constitute the major issue for disposal herein the Trial Examiner will com-
ment further in this regard below. All parties were represented and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to in-
troduce relevant evidence.' Oral argument was waived and briefs were received
from the General Counsel and the Respondents on or about September 12, 1960.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The complaint alleges, the answers admit, and the Board has previously found,2
that:
Respondent Employer has its principal office and place of business at 4444
Cass Avenue, in the city of Detroit, county of Wayne, State of Michigan,
and at all times material herein was engaged at said address in the distribu-
tion of advertising material by various methods, including, but not limited
to, house-to-house delivery.
During the calendar year of 1959, a period representative of all times
material herein, Respondent Employer performed services valued in excess
of $50,000 for Michigan firms engaged in interstate commerce within the
meaning of the Act by virtue of the fact that they were: (a) retail enter-
prises which actually purchase and cause to be shipped directly from points
outside the State of Michigan to their stores located in the State of Michigan,
goods valued in excess of $500,000; (b) manufacturers who annually pur-
chase and cause to be shipped directly from points outside the State of
Michigan to their plants and facilities located in the State of Michigan, goods
and materials valued in excess of $50,000; (c) manufacturers who annually
i See infra in this regard.
2 See American Pubilshing CorPorat,on, et ad., 121 NLRB 115 and 124 NLRB 1227.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
produce and cause to be shipped from their *plants and facilities located in
the State of Michigan, directly to points outside the State of Michigan, prod-
ucts valued in excess of $50,000.9
In the circumstances the Trial Examiner finds that the Respondent Employer
herein is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Detroit Mailers Union No. 40, International Typographical Union, AFL-CIO,
the Respondent Union herein, and Detroit Mailers Union No. 4, International
Mailers Union, Ind., the Charging Party herein, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Foreword
As indicated above, the essential facts with which we are concerned herein have
been before the Board before, in American Publishing Corporation, et at., 121
NLRB 115 and 124 NLRB 1227. In the original representation case, 121 NLRB
115, the Board found that a multiemployer unit of employees, employed by nine
employers including the Respondent herein, who operate commercial printing
shops in the Detroit area, constituted a unit appropriate for the purpose of collec-
tive bargaining, and directed an election among said employees. The unit in
question was as follows:
(2) All employees doing work appertaining to mailing, such as address-
ing, tagging, stamping, labeling, bundling, or wrapping; cutting lists or wrap-
pers (including galley work); operating stencil machines, filing or correct-
ing stencils; sorting, routing, dissecting, or marking wrappers; taking bundles
or papers from conveyors or escalators; stacking, jogging, folding; handling
of bundles or mail sacks; distributing, counting of papers (leaving or return-
ing); tying by hand or power machine; sacking, delivering papers to mailers,
carriers, agents or newsboys; inserting or dispatching of papers, envelopes,
magazines, or circulars; whether done by hand or power machines, including
auxiliary machines used in preparatory work for making plates, stencils, or
any devices that may be used in placing names and addresses on wrappers, or
papers now in use or in the future may be introduced, and jogging of papers
or wrappers to be used on any automatic mailing machine, employed by the
commercial shops, i.e., Accurate Mailing & Distributing Service; American
Mailers and Binders; Chene Printing Co.; Detroit Gravure Corporation; Gratiot-
Herald, Inc., Jourdan Co., Inc.; Michigan Advertising Distributing Co.; Michi-
gan Catholic Co.; and Reliable Mailing Service Co. at their plants in Detroit,
Michigan, excluding all other employees, office and clerical employees, guards,
and supervisors as defined in the Act, and other employees covered by contracts
involving work other than specified above.
After the Board issued its Decision and Direction of Election among the em-
ployees in the above unit, the Respondent Union herein requested a rehearing on
the unit found appropriate by the board, or in the alternative to exclude the Re-
spondent Employer therefrom. On August 15, 1958, the Board denied its motion,
but reserved ruling on whether the Respondent Employer was properly included
in the unit. Thereafter an election was conducted by the Board among the em-
ployees in the appropriate unit set forth above. On October 16, 1959, the Board
certified the Detroit Mailers Union No. 4, International Mailers Union, the Charg-
ing Party herein, as the exclusive' bargaining representative of the employees in the
above appropriate unit. In its Supplemental Decision, Order, and Certification of
Representatives the Board had before it the problems that are the predicate for
the issues that we are faced with herein. In that case as here the Respondents
disputed the Board's finding as regards the appropriate unit For this reason the
Trial Examiner feels that certain excerpts from the Board's Decision in the above-
mentioned case should be inserted herein: 4
:Quoted section from the complaint
In the Board's Supplemental Decision, Order, and Certification of Representatives,
124 NLRB 1227, the Respondent Employer herein is referred to as M A D., and the
Respondent Union as DMU-ITD.
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1305
The Board's Decision and Direction of Election included M.A.D. in the
multiemployer unit. The Intervenors' motion sought the exclusion of M.A.D.
on the ground that this Employer "now has a standing collective bargaining
agreement with Intervenor . . ." which barred an election or, if not a bar,
"would be conclusive evidence of this Employer's intention to continue single-
employer bargaining." M.A.D., upon request of the Board for a statement of its
position, supported this motion, and the Petitioner and Local 4 opposed it, as
did counsel who appeared for certain of the other Employers who are part
of the multiemployer unit.
The record reveals that in May 1957, during the course of the original
hearing herein, M.A.D. entered an agreement with DMU-ITU amending the
multiemployer contract and extending its effective date to January 31, 1961.
On January 16, 1958, DMU-ITU requested that M.A.D., pursuant to a reopen-
ing clause of the amended contract, renegotiate certain provisions thereof. Such
negotiations extended from March 5, 1958, to approximately June 7, 1958,
on which date DMU-ITU sent a copy of the proposed agreement to ITU for
approval. The renegotiated contract was actually executed early in August
1958, subsequent to the issuance of our Decision and Direction of Election and
after its receipt by those parties. [Emphasis supplied.]
It is clear that both the Petitioner and the Intervenors were aware of all
the above events on which each relies long before the Decision herein was
issued, and, in fact, most of them took place before the proceeding was trans-
ferred to the Board. Moreover, neither M.A.D. nor Detroit Labor News, both
of whom were served with all documents pertaining to the original hearing in
this matter, appeared or participated during the entire course of the original
hearing, and neither indicated at any time nor in any fashion that the facts
respecting its status were different from those then appearing in the record.
[Emphasis supplied.]
Under the circumstances of this case, and particularly in view of the failure
of the interested parties to bring the facts to the Board's attention until after the
issuance of the Decision and Direction of Election, although the proceeding had
progressed through an extensive hearing and was before the Board for some
time, we conclude that the unit as previously found should not be disturbed.
Where, as here in the case of M.A.D.,' the incumbent union and one Employer,
in the face of a lengthy Board proceeding on a rival union's petition for a
multiemployer unit, permit the case to progress to the issuance of a decision
without bringing the full facts, which are completely within their knowledge, to
the Board's attention, we will not permit the parties to fragmentize the unit on
the basis of such facts. Such parties are estopped by their own conduct and
cannot now be heard to complain that the full facts were not taken into con-
sideration. Similarly, by Petitioner's failure to inform the Board of the change
in the operations of Detroit Labor News, it has slept on its rights and cannot
at so late a date be permitted to reopen the unit question.
Accordingly, we shall deny the Intervenors' motion to exclude M.A.D.
from the unit and shall dismiss the petition as to Detroit Labor News. Since
Local 4 received a majority of the votes cast in the election, we shall certify
it as the representative of the employees in the unit .5
It is to be noted that in the foregoing excerpt from the Board's Supplemental De-
cision , Order, and Certification of Representatives that the Board had before it at
the time it issued its decision the fact that the Respondents herein had entered into
an agreement, or a "renegotiated agreement," in August 1958, subsequent to the issu-
ance of our Decision and Direction of Election and after its receipt by those parties.°
On or about April 4, 1960, the Respondents entered into, negotiated, and effected
amendments to the agreement referred to above, in regard to wages, hours, and other
terms and conditions of employment, in total disregard of the fact that the Charging
Union herein was, and is now, the duly designated and certified bargaining repre-
sentative of the employees in the unit found appropriate by the Board. Thereafter
on May 9, 1960, the Charging Union filed the original charges herein.
Since there is little, if any, dispute in regard to the basic facts herein, the Trial
Examiner feels that the following excerpts from the pleadings are sufficient to convey
to all concerned the problems with which we are faced herein:
g Footnotes referred to in text have been omitted from above excerpt.
" See footnote 8 at page 1229 of the Board's Supplemental Decision, Order, and Certifica-
tion of Representatives, 124 NLRB 1227.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. Since on or about November 5, 1959, and continuing to date. hereof,
Respondent Employer, has rendered, and is rendering, unlawful aid, assistance
and support to Respondent Union, by the following acts and conduct:
(a) Since on or about November 5, 1959, and continuing to date hereof,
Respondent Employer has maintained and given full force and effect to a col-
lective bargaining agreement between Respondent Employer and Respondent
Union relating to wages, hours and other terms and conditions of employment
of employees of Respondent Employer included in the appropriate unit set forth
in paragraph 7 above.
(b) On or about April 4, 1960, Respondent Employer and Respondent Union
entered into, negotiated and effected amendments to said collective bargaining
agreement relating to the wages, hours and other terms and conditions of
employment notwithstanding that Mailers was, and is now, the duly designated
certified collective bargaining representative of said employees.
(c) Since on or about November 5, 1959, and continuing to date hereof,
Respondent Employer has recognized, bargained and negotiated with Respond-
ent Union regarding wages, hours and other terms and conditions of employ-
ment as the exclusive representative of its employees included in the appropri-
ate unit set forth in paragraph 7 above.
(d) Since on or about November 5, 1959, and continuing to date hereof, Re-
spondent Employer did process grievances presented by Respondent Union,
a labor organization other than the certified collective bargaining representa-
tive, involving such of Respondent Employer's employees employed in the
unit set forth in paragraph 7 above, notwithstanding that Mailers was and is
the certified bargaining representative of said employees.
12. By the acts set forth in paragraphs 11(a) through (d) above, and by each
of said acts, Respondent Employer did render, and is rendering, unlawful as-
sistance and support to a labor organization and thereby did engage in, and is
engaging in, unfair labor practices affecting commerce within the meaning of
Section 8(a) (2) and Sections 2(6) and (7) of the Act.
13. Since on or about November 5, 1959, and at all times thereafter. Re-
spondent Employer did refuse and continues to refuse, to bargain collectively
with Mailers as the certified collective bargaining representative of the em-
ployees of Respondent Employer included in the appropriate unit set forth
in paragraph 7 above, by the acts and conduct set forth in paragraphs 11(a),
i(b), (c) and (d) above.
14. By the acts set forth in paragraph 13 above, and by each of said acts,
Respondent Employer did refuse to bargain and is refusing to bargain with
Mailers, and certified collective bargaining representative of its employees, and
thereby did engage in and is engaging in, unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and Sections 2(6) and (7)
of the Act.
15. By the acts set forth in paragraphs 11, 12, 13, and 14 above, and by each
of said acts, Respondent Employer did interfere with, restrain and coerce, and
is interfering with, restraining and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act and thereby did engage in, and is
engaging in, unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Sections 2(6) and (7) of the Act.
16. Since on or about November 5, 1959, and continuing to date hereof,
Respondent Union has restrained and coerced, and is restraining and coercing,
the employees of Respondent Employer in the exercise of the rights guaranteed
in Section 7 of the Act by the following acts and conduct:
,(a) Since on or about November 5, 1959, and continuing to date hereof,
Respondent Union has bargained and negotiated with Respondent Employer
regarding wages, hours and other terms and conditions of employment, as the
exclusive representative of employees of Respondent Employer included in the
appropriate unit set forth in paragraph 7 above, notwithstanding that Mailers
was, and is now, the duly designated certified exclusive bargaining representative
of such employees.
(b) Since on or about November 5, 1959, and continuing to date hereof,
Respondent Union has presented grievances to Respondent Employer in, and
on behalf of, said employees, notwithstanding that Mailers was, and is now, the
duly designated certified exclusive bargaining representative of such employees.
,(c) On or about April 4, 1960, Respondent Union and Respondent Employer
negotiated, entered into and effected amendments to said collective bargaining
agreement, relating to the wages, hours, and other terms and conditions of
employment of Respondent Employer's employees, notwithstanding that Mailers
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1307
was, and is now, the duly designated certified bargaining representative of said
employees.
17. By the acts set forth in paragraphs 16(a), (b) and- (c) above, and by each
of said acts, Respondent Union did restrain and coerce, and is retraining and
1 'coercing employees of Respondent Employer in the exercise of the rights
guaranteed in Section 7 of the Act, and thereby did engage in, and is engaging
in, unfair labor practices affecting commerce within the meaning of Section
8(b)(1)(A) and Sections 2(6) and (7) of the Act.
18. The activities of Respondents, as set forth in paragraphs 11, 12, 13, 14,
t15, 16 and 17 above, occurring in connection with the operations of Respondent
Employer described in paragraphs 2 and 3 above, have a close, intimate and
substantial relationship to trade, traffic and commerce among the several states
and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
19. The acts of Respondents described above constitute unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1) and (5) and Sec-
tion 8(b)(1)(A), respectively and Sections 2(6) and (7) of the Act.
The Respondents in their separate answers admit the basic allegations in the com-
plaint, but deny that their conduct was violative of the Act. They predicate their
denials on two of the principal issues that were before the Board in the representation
cases referred to above: (1) that the Board erred in including the Respondent Em-
ployer in the appropriate unit set forth above; (2) that the Charging Party, Detroit
Mailers Union No. 4, International Mailers Union, Ind., never was, and is not now
the duly designated certified exclusive bargaining representative of the em-
ployees of Respondent Employer' ; and (3) that consequently upon those premises
the relations between the Respondent Employer and the Respondent Union regarding
the employees of the Respondent Employer are not now and never have been viola-
tive of the above-cited sections of the Act. The Respondents premise their defense
on the theory that the Board has been in error throughout the long and "checkered
career" of the case.?
,We now come to the hearing herein and what transpired during the course thereof
that have a bearing on the Trial Examiner' s ultimate disposition of the issues with
which we are confronted.
At the onset of the hearing the General Counsel identified and offered in evidence
the formal papers, which for the most part consisted of the pleadings herein. They
were received in evidence without objection. The General counsel then advised the
Trial 'Examiner that the did not intend to call any witnesses in support of his con-
tentions as set forth in the consolidated complaint, and rested his case. At this point
counsel for the Respondent Union filed with the Trial Examiner a formal motion
to dismiss the . Complaint" in said matter , as to Respondent, Detroit Mailers
Union No. 40, ITU ..... For reasons shown below the Trial Examiner denied
the motion to dismiss.
An examination of the motion to dismiss clearly shows that the main defense of the
Respondent Union to the allegations in the complaint filed against it, particularly
insofar as they pertain to the relations between it and the Respondent Employer,
is that they are not as a matter of law violative of Section 8 (b) (1) (A) of the Act.
In the main it relies on the Supreme Court decision in the Curtis case, of which more
below.8
After long and careful consideration the Trial Examiner feels that the following
excerpts from the Respondent Union's motion to dismiss should be inserted herein
below, primarily because of what transpired thereafter at the hearing herein .9
3. Nowhere in the Complaint is there a factual allegation that the employees
of Respondent Employers were in fact coerced, or threatened by Respondent
Union to remain or become members of Respondent Union, or to allow
Respondent Union to represent them against their will. Nor is it anywhere
alleged that Respondent Union in anyway forced itself upon unwilling em-
ployees, or that said employees of Respondent Employer did not in fact desire
that Respondent Union represent them.
Nowhere in the Complaint is there an allegation of fact that Respondent
Union restrained the employees of Respondent Employer from becoming mem-
7 See the dissenting opinion of Board Member Bean
8Drivers, Chauffeurs and Helpers Local 639 , International Brotherhood of Teamsters
eto. (Curtis Brothers , Inc.), 119 NLRB 845
G The paragraphs of the motion to dismiss deal with the factual situation that led up to
the Sling of the charges herein.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers of Local 4, IMU, or that said employees in fact desired to become mem-
bers of Local 4, IMU, or be represented by Local 4, IMU, for the purpose of
collective bargaining.
4. The legal conclusion that the above-mentioned conduct of Respondent
Union in itself violates Section 8(b)(1) (A) of the Act is erroneous and con-
trary to all legal precedent for the following reasons:
A. Said legal conclusion is contrary to the law and well-established inter-
pretation of Section 8(b) (1) (A) as set forth in National Labor Relations Board
v. Drivers, Chauffeurs and Helpers, Local Union No. 639, International Brother-
hood of Teamsters, Chauffeurs and Warehousemen and Helpers of America,
362 U.S. 274, 45 LRRM 2975.
B. Reviewing the legislative history of Section 8 (b) (1) (A), the Supreme
Court found as follows:
However, five members of the Senate Labor Committee, including Sen-
ators Taft and Ball, believed that the Senate bill did not go far enough
in the regulation of practices employed by unions for organizational pur-
poses . These Senators introduced on the floor a proposed amendment to
the Committee bill. The amendment as originally phrased was the counter-
part of Sec. 8(a)(1) applicable to employers; it would have made it an
unfair labor practice for a labor organization "to interfere with" as well
as "to restrain or coerce employees in the exercise of the rights guaranteed
in Sec. 7 . ... The words "interfere with" were dropped during the
debate, but except for this change, the amendment became Sec. 8(b) (1) (A).
The report of supplemental views which announced the five Senators'
intention to propose the amendment identifies the abuses which the section
was designed to reach. That report stated: "The Committee heard many
instances of union coercion of employees such as that brought about by
threats of reprisal against employees and their families in the course of
organizing campaigns ; also direct interference by mass picketing and other
violence. Some of these acts are illegal under State law, but we see no
reason why they should not also constitute unfair labor practices to be
investigated by the National Labor Relations Board, and at least deprive
the violators of any protection furnished by the Wagner Act." S. Rept.
No. 105, 80th Cong., 1st sess. 50 similar expressions pervaded the Senate
debates on the amendment. The note repeatedly sounded is as to the
necessity for protecting individual workers from union organizational
tactics tinged with violence, duress or reprisal. Senator Ball cited numerous
examples of organizing drives characterized by threats against unorganized
workers of violence, job reprisals and such repressive assertions as that
double initiation fees would be charged,, those who delayed joining the
union . 93 Cong. Rec. 4016-4017. When Senator Ives objected to the
words "interfere with" as too broad, Senator Taft insisted that even those
words would have a limited application and would reach "reprehensible"
practices but not methods of peaceful persuasion. He continued: "Why
should a union be able to go to an employee and threaten violence if he
does not join the union? Why should a union be able to say to an em-
ployee, 'If you do not join this union we will see that you cannot work in
the plant'? We know that such things have actually occurred. We know
that men have been threatened. There have been many cases in which
unions have threatened men or their wives. They have called on them on
the telephone and insisted that they sign bargaining cards. They have
said to them, 'Sooner or later we are going to organize this plant with a
closed shop, and you will be out'.". . . [93 Cong. Rec. 4021.]
It is thus clear that Section 8(b) (1) (A) properly read in the light of its
legislative history and the Act as a whole, covers conduct such as the exertion
of physical force against employees, threats of force or economic coercion,
and mass and violent picketing which would prevent ingress to work.
Nowhere in the Complaint in this matter is it alleged that Respondent Union
has engaged in conduct such as the exertion of physical force against employees,
threats of force or economic coercion or violent picketing which would prevent
ingress to work, or any other conduct described as being within the meaning
of Section 8 (b) (1) (A) of the Act.
Finally, it is significant that the charge in this matter was not filed by any
employee of the Respondent Employer, but by a rival union who can claim not
one member among the employees of Michigan Advertising Distributing Com-
pany. As pointed out by Member Murdock in Local 639, Drivers, Chauffeurs,
and Helpers International Brotherhood of Teamsters, Chauffeurs, Warehouse-
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1309
'men and Helpers of America, AFL-CIO and Curtis Brothers, Inc., 119 NLRB
845, 41 LRRM 1025, if it should occur that an unwanted union is -foisted
upon the employees they "do not stand helplessly bound by union not of their
own choosing, but may file charges and obtain relief from the Board."
Counsel for the Respondent Employer joined in the motion to dismiss on behalf
of his client.10
After the Trial Examiner denied the Respondent Union's motion to dismiss, its
counsel called as his first witness Walter Orlosky, an employee of the Respondent
Company at all times material herein. At the onset of the interrogation of the
witness the General Counsel objected to a question and the following colloquy
transpired between counsel and the Trial Examiner.
Q. Are you a member of the International Typographical Union Local 40?
A. I am.
Mr. SUGERMAN: Objection, Mr. Examiner. What is the relevancy of the
question?
TRIAL EXAMINER: I will ask counsel.
Mr. KLIMIST: If the Trial Examiner please, it- is the intention of respondent
union to produce witnesses here to show that these people who are employees
of respondent employer are members of respondent union, are members of
respondent union of their own volition because they wanted to be, that they
have not been forced or threatened in any way to remain members of respondent
union, that these people here do not wish to be represented by the charging
party in this case, and that they wish to be represented by the International
Typographical Union, Local 40. -
Now again the complaint in this matter charges restraint and coercion. Now
I am offering facts which go to the matter of restraint and coercion, the words
used in the Act.
TRIAL EXAMINER: That's the purpose of this witness' testimony?
Mr. KLIMisT: The purpose of this witness and following witnesses.
TRIAL EXAMINER: I am going to sustain counsel for the government's objec-
tion. I will permit you to make an offer of proof.
Mr. KLIMIST: Thank you.
TRIAL EXAMINER: By question and answer.
Mr. GOLDSTEIN: May we go off the record for a moment?'
TRIAL EXAMINER: Off the record.
(Discussion off the record:)
TRIAL EXAMINER: On the record. Proceed.
Mr. SUGERMAN: May we know when Mr. Klimist is finished with his offer
of proof? -
TRIAL EXAMINER: I expect him to announce it. As a lawyer, he should
know that.
After counsel had made his offer of proof in regard to the testimony of the above
witnesses, he advised the Trial Examiner on the record-that he intended to call each
and every employee of the Respondent Employer as a -witness, and that their
testimony would be along the same line as that of the witness referred to above.
The Trial Examiner pointed out to counsel that the testimony, of the employees he
intended to call as witnesses would be cumulative, and rejected his proposal for
the same reasons that he sustained the General Counsel's objections to the testi-
mony of the witnesses, Orlosky, which has been discussed above. The Trial Ex-
aminer then permitted counsel to make the following offer of proof."
Mr. KLIMIST: I should like as part of my offer of proof, to. list the names of
the other employees, other than Mr. Orlosky,, who has already testified.
TRIAL EXAMINER: That's perfectly all right.
Mr. KLIMIST: They include Andrew Brooks, Robert Rogers, Edward Lier,
Allan Roe, Frank Boskovich, William Boskovich, Thomas Corr, Sylvia Dia-
mond, Mary Hagler, Belle Diamond, Jappie Hughes, William Karwacki, Dav-
etta Thompson, Eleanor Andres, Edith Lark, Stella Trzasokoma, Clarese
Studevant, Jess Purcell, Bryon St. Louis-
TRIAL EXAMINER: Who was that?
Mr. KLIMIST: Bryon St. Louis, and finally Odessa Craig. If these witnesses
were called to testify, if they were to take the witness stand, each of these wit-
nesses with the exception of Stella Trzosokoma and Clarese Studevant would
10 See Respondent Employer 's brief in this regard.
11 See infra for the Trial Examiner 's reasons for rejecting , the testimony of the wit-
nesses referred to.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testify that they are members of the international Typographical Union, Local
40. They would further testify that they in no way were forced or coerced
or threatened, no false representations or promises were made to them to get
them to become members of Local 40 ITU; they remain as members of Local
40 ITU of their own free will and volition, they remain as members of Local
40 ITU because they want to be members of this local and because they want
this local union to represent them for the purpose of collective bargaining and
that, further, if called to testify each of these employees whom I mentioned,
if they should have the opportunity to vote as to their collective bargaining
representative of this particular employer they would vote for the International
Typographical Union.
Further, if called to testify, each of these employees who have in the past,
a majority of them who have had the opportunity to exercise their vote in a
representation election between the International Typographical Union and
International Mailers Union, each of these employees has voted for the Inter-
national Typographical Union, and would do so again.
They would also, if called to testify, would further testify that they have
not been approached by the IMU for membership, and if so approached would
not join the IMU.
TRIAL EXAMINER: The IMU?
Mr. KLIMIST: The IMU. If called to testify, they would further testify that
all grievances which have been processed for them with the company have
been processed at the request of the individual employee.
If called to testify they would further testify that in connection with the
amendments to the collective bargaining agreement, that they wanted, de-
manded such additional wages and benefits as were given under the collective
bargaining agreement and its amendment and that they of their own free will
voted to accept such benefits.
TRIAL EXAMINER: Pardon me counsel. Did you participate as a repre-
sentative of the intervenor in the "R" case?
Mr. KLIMIST: I did not personally. Mr. Zwerdling did.
TRIAL EXAMINER: Your firm?
Mr. KLIMIST• Our firm did, yes.
TRIAL EXAMINER: That about covers it, doesn't it?
Mr. KLIMIST: I think so, your Honor. As to the two employees who I pre-
viously mentioned, Clarese Studevant and Stella Trzasokoma, if called to
testify they could testify that they are not presently members of the Inter-
national Typographical Union; they would testify that they have not been
forced or threatened in any way with respect to making application for mem-
bership in the International Typographical Union; that no promises or repre-
sentation had been made to them.
They would, if called to testify, these two witnesses would further testify that
they have never been members of the International Mailers Union, and they
do not in fact want to be members of the International Mailers Union, that if
an election were held today they would vote for the International Typographical
Union and of their own free will and volition, and it is their sincere desire
the International Typographical Union represent them as their collective
bargaining representative with this employer.
TRIAL EXAMINER: That completes your offer of proof?
Mr. KLIMIST: That completes it.
As indicated above the Trial Examiner rejected the above offer of proof. His
reasoning was predicated on the theory that to have permitted the Respondents to
offer such testimony, the hearing would in effect be nothing more than a relitigation
of the very issues considered and decided by the Board in the two representation
cases referred to above. Again, it would likewise be, in effect, a "new election,"
without even the benefit of a "secret ballot." In the considered opinion of the Trial
Examiner it would have been highly improper for him to have entertained a re-
litigation of matters that the Board had carefully considered and decided months,
and in fact almost 3 years, before the hearing herein. Moreover a perusal of the
Board's decisions, in the above-cited cases, clearly shows that the Board had before
it at the time it issued its Supplemental Decision, Order, and Certification of
Representatives," 124 NLRB 1227, the very issues that are the basis of the Respond-
ents' defenses herein,12 and the above offers of proof in support thereof. As in-
dicated above, the Respondents seek to justify their conduct on the grounds that the
Board's unit determination was erroneous, and that consequently their conduct as set
12 See supra for other comment in this regard.
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1311
forth in the complaint was justified and not violative of the Act. The Board and the
courts have consistently held that prior determinations by the Board in representa-
tion cases cannot be relitigated in subsequent unfair labor 'practice proceedings
arising out of either employers' and/or labor organizations' attempts to challenge
its findings in this regard.3
The Respondent, Employer offered no defense at the hearing herein, but did join
with the Respondent Union in its motion to dismiss, and its counsel joined with
counsel for the Respondent Union in the offers of proof set forth above.
Concluding Findings
As indicated above, the difficulties with which we are confronted herein have been
for all practical purposes before the Board for quite some time.14 Moreover, from,
all of the foregoing it is obvious that they stem from the original representation
cage, and the Board's Supplemental Decision, Order, and Certification of Repre-
sentatives, American Publishing Corporation, et al., 124 NLRB 1227, dated Oc-
tober 16, 1959. Simply stated the Respondents herein have consistently contended
that the Board erred in finding that the Respondent Employer should be included in
the multiemployer appropriate unit set forth hereinabove. On the premise both of
the Respondents herein have consistently ignored the Board's findings in this regard
and have maintained and/or continued their contractual relations regarding the em-
ployees of the Respondent Employer who are in the unit found appropriate by the
Board. In fact they reaffirmed their disregard for the Board's findings within less
than 6 months after the Board issued its certification of representatives by amending
their original agreement on April 4, 1960. The Respondents admit the foregoing in
their answers and briefs, but as indicated above contend that it was the Board who
erred in the first instance, and that consequently their conduct and activities as set
forth in the complaint are not violative of the Act.
Before proceeding further the Trial Examiner desires to point out to all con-
cerned that he is bound by the Board's decisions and orders, consequently any
predilections he may have in regard to the issue herein-or in any case for that
matter-are beside the point and hence meaningless. With that in mind let us first
dispose of the allegations in the complaint regarding the Respondent Employer.
Briefly they involve Section 8(a) (1), (2), and (5) of the Act.
To begin with, the Board from its earliest days has consistently taken the posi-
tion that a purported improper ruling by it in a representation case, which has been
fully litigated and considered by the Board in that proceeding, cannot be properly
the subject of relitigation in an unfair labor practice proceeding.15
From all of the foregoing and in particular from the admissions in its answer the
Trial Examiner is convinced that the Respondent Employer herein engaged in con-
duct violative of Section 8(a)(1), (2), and (5) of the Act. His reasoning in this
regard follows below.
The Charging Party herein, IMU, was certified by the Board on October 16, 1959,
as the bargaining representative of the employees in the appropriate unit. As indi-
cated and found above the Respondent Employer continued to give full effect to its
contract with the Respondent Union, and in fact on April 4, 1960, the Respondents
herein negotiated an amendment to their agreement setting new wage rates for the
employees in the appropriate unit. At no time after the Charging Union was certi-
fied by the Board did the Respondent Employer recognize it as the certified bargain-
ing agent of its employees, but as found above continued its relations with the
Respondent Union.16 There is nothing new or unique in the position taken by the
13 See Pittsburgh Plate Glass Company v. N.L R .B., 313 U S. 146 ; N L R B. v. West
Kentucky Coal Company, 152 F. 2d 198 (C A. 6), West Texas Utilities Company, 106
NLRB 859; and the comment in the brief of the General Counsel.
14 At this time there is before the Board an Intermediate Report, Issued by Louis Libbin,
Trial Examiner , July 18, 1960 , Case No 7-CA-2615 involving the same parties
15 See supra in re the proposed offers of proof . See also , Burroughs Corporation, 118
NLRB 1177 ; Esquire, Inc (Coronet Instructional Films Division ), 109 NLRB 503, enfd
222 F. 2d 253 ( C.A. 7) ; Pittsburgh Plate Glass Company v N.L R B , supra.
1 As indicated supra in a footnote , a case involving the parties herein is now before the
Board , Gerald Sklar and Alfred Goldman, Co-partners d/b/a Michigan Advertising Dis-
tributing Conipam y, Case No 7-CA-2615 [134 NLRB 1 289]. The Trial Examiner,
Louis Libbin , issued his Intermediate Report in the matter on July 21, 1960 At the
hearing , the General Counsel offered in evidence a copy of the Intermediate Report in
the case, which was rejected by the Trial Examiner , and placed in the rejected exhibit
file. The Trial Examiner rejected the exhibit on the grounds that he could not take official
notice of its contents until it had been considered and disposed of by the Board
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents herein in defense of their conduct; similar situations have been before
the Board and the courts before, for example, in Medo Photo Supply Corporation
v. N.L.R.B., 321 U.S. 678, the Supreme Court said:
The National Labor Relations Act makes it the, duty of the employer to
bargain collectively with the chosen representative of his employees. The
obligation being exclusive . . . it exacts the negative duty to deal with no
other. [Emphasis supplied.]
In the circumstances discussed and found above the Trial Examiner finds that the
Respondent Employer, by negotiating with and recognizing the Respondent Union
as the exclusive bargaining representative of its employees, has failed and refused
to bargain with the IMU, the representative; and that by its activities in this regard
has engaged in conduct violative of Section 8(a)(5) of the Act.
As also indicated above, the alleged violation of Section 8(a)(2) and (1) of the
Act stems from the Respondent Employer's continued recognition and relations with
the Respondent Union in the face of the Board's certification of the IMU as the
exclusive bargaining representative of the employees in the multiemployer ap-
propriate unit. Consequently the Respondent Employer's continued recognition of
the Respondent Union herein, in face of the Board's certification of 1MU, con-
stituted unlawful assistance and support to the Respondent Union, and thereby
did engage in and is engaging in unfair labor practices within the meaning of
Section 8(a) (2) and (1) of the Act.
The Trial Examiner predicates his findings as to violations of Section 8(a) (2) and
(1) of the Act on the facts set forth and found above. Here again we are faced with
a situation that has been before the Board and the courts before. For example in
Bernhard-Altmann Texas Corporation, 122 NLRB 1289, the Board was found with
a situation somewhat similar to that found herein. In that case it held as follows:
. The Respondent Company violated Section 8(a) (2) -and (1) of the Act
by executing and maintaining a contract with the Union which recognized the
Union as the exclusive bargaining representative of the employees in the speci-
fied unit at a time when the Union did not represent a majority of such
employees.17
In passing, the Trial Examiner desires to point out that he is not unmindful
of the tact that in the cases he has 'cited above the Board had in front of it at
the time they were under consideration situations involving individual employers,
and not as here, appropriate units dealing with the operations of several employers,
of in other words multiemployer units. Even so, the above-cited cases are ap-
plicable as a matter of law to the factual situation herein, and the Trial Examiner
so finds.
We now come to what the Trail Examiner considers the most difficult question
involved herein. He has reference to the applicability of Section 8(b) (1) (A) to
the facts found herein to the Respondent Union, in view of the Supreme Court's
ruling in the Curtis case.18
There is no dispute as to the facts upon which the General Counsel predicates
his allegations in the complaint as to the Respondent Union's violation of Section
8(b) (1) (A) of the Act. Like the allegations against the Respondent Employer
herein, they too stem from the Board's Decision in the original representation
cases. Neither in the complaint nor at any time material herein has the General
Counsel either at the hearing or in his. brief made any contention that the Re-
spondent Union has engaged in any specific acts of ". . . coercion and restraint
which included violence, intimidatory threats, false promises and misrepresenta-
tions," which ordinarily accompany allegations involving violations of Section
8(b)(1)(A) of the Act. The Trial Examiner has pointed out above that the
General Counsel's allegations as to the Respondent Union in his complaint all stem
from its relations with the Respondent Employer at times material herein when
the IMU was the certified bargaining representative of not only the employees
of the Respondent but of eight other employers as well in a multiemployer unit
which the Board after long and careful consideration found appropriate for the
purposes of collective bargaining.
19 See also Alco-Gravure, Division of Publication Corporation, 124 NLRB 1027; see
Hexton Furniture Company, 111 NLRB 342
is N L.R B v. Drivers, Chauffeurs and Helpers Local Union No. 639, International
Brotherhood of Teamsters, etc. (Curtis Brothers ), 362 U.S. 274.
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1313
In the circumstances set forth above, were the activities of the Respondent Union
violative of Section 8(b) (1) (A) of the Act?
As also indicated above, and set forth in the excerpts from the Respondent
Union's motion to dismiss, the Respondent Union relies upon the Curtis case as
a complete defense to its admitted relations with the Respondent Employer.
After long and careful consideration the Trial Examiner is convinced and finds
that the above-described conduct and activities of the Respondent Union were
violative of Section 8(b)(1)(A) of the Act. His reasoning in this regard follows
below.
As the Trial Examiner sees it there is far more at stake here than the litigants
involved herein. It must be borne in mind that the employees of the Respondent
Employer were in a multiemployer unit composed of the employees of eight other
employers, whose position and statutory rights must likewise be considered. Un-
questionably the Board weighed and considered their welfare when it issued its
Dedision and Direction of Election in the original representation case, and there-
after in its Supplemental Decision, Order, and Certification of Representatives.19
Also at stake is the stability of the Board 's orders and decisions in cases of this
nature. Surely Congress never intended that its orders and decisions could be
ignored at the whim and caprice of dissatisfied litigants in representation cases.
Since the beginning the Board has issued innumerable decisions and orders in un-
fair labor practice cases against employers where it has found violations of Sec-
tion 8(a)(1) of the Act, when the principal violation at issue was some other
section of the Act. In fact it still follows the procedure. Its purpose in so find-
ing is obvious, since one of the primary duties of the Board and its Geneial
Counsel is to "effectuate the policies of the Act." So is it here.
The Curtis case involved a different set of facts than we are confronted with
herein. There the principal question involved was ". . . whether peaceful picket-
ing by a union, which does not represent a majority of the employees, to compel
immediate recognition as the employees' exclusive bargaining agent, is conduct
of the union `to restrain or coerce ' the employees in the exercise of rights guaran-
teed in § 7, and thus an unfair labor practice under § 8 (b) (1) (A) of the Taft-
Hartley Act." 20 Here the question involved does not concern "picketing, but
the rights of all the employees" in the unit found appropriate by the Board in
the original representation proceedings.
' In the circumstances discussed, described, and found above the Trial Examiner
rejects the contention of the Respondent Union, and finds that the decision of
the U.S. Supreme Court in the Curtis case is not applicable to the basic facts
found herein. Consequently on all of the above the Trial Examiner finds that the
conduct and activities of the Respondent Union were violative of Section
8(b)(1)(A) of the Act.
It must be remembered that we are faced with a multiemployer unit herein.
In those circumstances the Board must consider the statutory rights of all the
employees in the unit, not just those of one of the employers, in reaching a deci-
sion as to whether or not conduct such as we are faced with herein is violative
of the Act. As the Trial Examiner sees it, disruptions to the bargaining nego-
tiations between the IMU and the Employers in the unit by either dissatisfied
employers or labor organizations constitutes interference with, restraint, and co-
ercion of the employees in the overall unit in the exercise of their rights guaran-
teed in Section 7 of the Act.
In such circumstances it cannot be said that a finding by the Board of a viola-
tion of 8(b)(1)(A) of the Act to remedy such a situation is penal in nature,
for the simple reason that when it is considered in the light of all the facts it
is obviously "remedial" to protect the rights of all the employees in the appropri-
ate unit. Moreover, there is no evidence in this record to indicate that the Board
acted in an arbitrary or capricious manner in disposing of the issues in the repre-
sentation proceedings.
In the considered opinion of the Trial Examiner these are added reasons for
finding that the Respondent Union by the above-described conduct violated Sec-
tion 8(b)(1)(A) of the Act.
ie See supra for citations.
20 Quotes from the Curtis case, supra.
630849-62-vol. 134-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondents set forth in section III, above,
occurring in connection with the operations of Respondent Employer 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
affecting commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, Section
10(c) of the Act directs that an order issue requiring Respondents to cease and
desist from such practices and to take such affirmative action as will effectuate the
policies of the Act.
The Respondent Employer by according the Respondent Union herein continued
recognition as the collective-bargaining representative of its employees in the unit
found appropriate by the Board, the,Trial Examiner shall direct that Respondent
Employer withdraw and withhold such recognition unless and until the said labor
organization shall have demonstrated exclusive majority representative status of
the employees in a unit found appropriate by the Board and pursuant to a Board-
conducted election. The Trial Examiner shall further direct that Respondents
cease giving effect to any agreements, contracts, or understandings between them-
selves respecting the employees in the unit found appropriate by the Board, or to any
modifications or extensions thereof subject to the same condition. Nothing in this
recommended order, however, shall be construed as requiring the Respondent
Employer to vary the wages, hours, or other terms and conditions of employment
which Respondent Employer has heretofore established in this regard. Finally, the
Trial Examiner shall recommend that the Respondents post appropriate notices to
dissipate the effect of their unfair labor practices.
Upon the foregoing findings of fact, and upon the entire record of the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Respondent Employer is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Charging Union and the Respondent Unions are labor organizations within
the meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act: All employees doing
work appertaining to mailing, such as addressing, tagging, stamping, labeling, bun-
dling, or wrapping; cutting lists or wrappers (including galley work); operating
stencil machines, filing or correcting stencils; sorting, routing, dissecting, or marking
wrappers; taking bundles or papers from conveyors or escalators; stacking, jogging,
folding; handling of bundles or mail sacks; distributing, counting of papers (leaving
or returning); typing by hand or power machine; sacking, delivering papers to mailers,
carriers, agents, or newsboys; inserting or dispatching of papers, envelopes, maga-
zines, or circulars; whether done by hand or power machines, including auxiliary
machines used in preparatory work for making plates, stencils, or any devices that
may be used in placing names and addresses on wrappers, or papers now in use
or in the future may be introduced, and jogging of papers or wrappers to be
used on any automatic mailing machine, employed by the commercial shops, i.e.,
Accurate Mailing & Distributing Service; American Mailers and Binders; Chene
printing Co.; Detroit Gravure Corporation; Gratiot-Herald, Inc.; Jourdan Co., Inc.;
Michigan Advertising Distributing Co.; Michigan Catholic Co.; and Reliable Mailing
Service Co. at their plants in Detroit, Michigan, excluding all other employees,
office and clerical employees, guards and supervisors as defined in the Act, and
other employees covered by contracts involving work other than specified above.
4. At all times since October 16, 1959, the Charging Union has been, and now
is, the exclusive representative of all employees in the aforestated appropriate unit
for the purposes of collective bargaining with respect to rates of pay, wages, hours
of employment, and other conditions of employment within the meaning of Section
9(a) of the Act.
5. By refusing on November 5, '1959, and at all times thereafter, to bargain
collectively with the Charging Union as the exclusive bargaining representative of
all its employees in the above-described appropriate unit, the Respondent Employer
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) and (1) of the Act.
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1315
6. By granting unlawful assistance and support to the Respondent Union in the
mode and manner described in section III, above, the Respondent Employer has
violated Section 8(a) (2) of the Act.
7. By the acts set forth above, the Respondent Employer has interfered with
and frustrated the rights guaranteed its employees in Section 7 of the Act and by
so doing has violated Section 8 (a) (1) of the Act.
8. The Respondent Union since on or about November 5, 1959, by bargaining
and negotiating with the Respondent Employer in regard to wages, hours, and
other conditions of employment as the exclusive bargaining representative of the
employees of the Respondent Employer included in the appropriate unit set forth
above, notwithstanding that the Charging Union herein, the Mailers, was, and is now,
the duly designated bargaining representative of said employees; by (2) presenting
grievances to Respondent Employer on behalf of said employees during this same
period of time; and (3) by negotiating and effecting amendments to a collective-
bargaining agreement on April 4, 1960, relating to wages, hours, and other condi-
tions of employment, nothwithstanding the fact that the Charging Union, the Mailers,
was, and is now, the duly certified bargaining agent of said employees. By all
the foregoing acts the Respondent Union has violated Section 8(b) (1) (A) of the Act.
[Recommendations omitted from publication.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all the parties represented, was heard before Trial Examiner
Louis Libbin in Detroit, Michigan, on May 2 1960, on complaint of the General
Counsel and answer of Gerald Sklar and Alfred Goldman, Co-Partners d/b/a
Michigan Advertising Distributing Company, herein called the Respondents. The
complaint, as amended at the hearing, alleges that the Respondents violated Section
S(a) (5) and (1) of the Act by refusing to sign a collective-bargaining agreement
which had been negotiated between the Charging Union and representatives of
employers of employees in a multiemployer unit, which the Board in a prior
representation proceeding found appropriately included the employees of Respond-
ents and for which unit the Board had certified the Charging Union as the exclusive
bargaining representative. Respondents' answer denies the commission of any un-
fair labor practices. After the close of the hearing, the General Counsel and the
Respondents filed briefs which I have fully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following•
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Gerald Sklar and Alfred Goldman, Co-Partners d/b/a Michigan Advertising
Distributing Company, have a principal office and place of business in Detroit,
Michigan, where they are engaged in the distribution of advertising material. Dur-
ing the year 1958, which is a representative period, the Respondents performed serv-
ces valued in excess of $50,000 for Michigan firms engaged in interstate commerce
within the meaning of the Act by virtue of the fact that they were either (a) retail
enterprises which annually purchase and cause to be shipped directly from points
outside the State of Michigan to their stores located in the State of Michigan goods
valued in excess of $10,000 and sold at such stores goods valued in excess of $50,000
annually, (b) manufacturers who purchase and caused to be shipped directly to
their Michigan plants from points outside the State of Michigan supplies valued in
excess of $50,000 annually, or (c) manufacturers who produced and caused to be
shipped from their Michigan plants directly to points outside the State of Michigan
products valued in excess of $50,000 annually.
Upon the above admitted facts, I find, as Respondents admit in their answer, that
Respondents are engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondents stipulated, the record shows, and I find,
that Detroit Mailers Union No. 4 International Mailers Union, Ind., the Charging
Party herein called the Union, is a labor organization within the meaning of Section
2(5) of the Act.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The representation proceedings
On July 23, 1958, the Board issued its Decision and Direction of Election,' in
which it found, inter alia, that a multiemployer unit consisting of certain stated classi-
fications of employees of Respondents and of eight other employers constituted a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
Thereafter, upon motion of the Intervenors in that proceeding to amend the
unit to exclude the Respondents, the Board Issued an order, dated August 15, 1958,
in which it directed its Regional Director that, in conducting the election in this
multiemployer unt, the employees of Respondents should be voted by challenged bal-
lots, and reserved ruing as to whether Respondents were properly included in said
multiemployer unit. After the holding of the election, the Board issued an order
on October 31, 1958, reopening the record and remanding the proceeding to the
Regional Director for a further hearing on the motions raised by said Intervenors.
Pursuant to said order, a further hearing was held in January 1959.
On October 16, 1959, the Board issued its Supplemental Decision, Order, and
Certification of Representatives.2 The Intervenors and the Respondents took the
position thet Respondents should be excluded from the multiemployer unit on the
ground that Respondents had entered into a separate collective-bargaining agree-
ment with the Intervenors which would either serve as a bar to an election or would,
be conclusive evidence of Respondents' intention to continue single-employer bar-
gaining. The Board concluded that in view of the failure of the interested parties
to bring these facts, most of which took place before the proceeding was transferred'
to the Board, to the attention of the Board until after the issuance of the Decision
and Direction of Election, the unit as previously found should not be disturbed. The
Board found that "such parties are estopped by their own conduct and cannot now
be heard to complain that the full facts were not taken into consideration" and con-
cluded that, under these circumstances, we will not permit the parties to fragmentize
the unit on the basis of such facts. The Board accordingly denied the Intervenors"
motion to exclude the Respondents from the multiemployer unit previously found
to be appropriate.
As the Union received a majority of the votes cast in the election, the Board, one
October 16, 1959, certified the Union as the exclusive representative of all the
employees in the multiemployer unit found appropriate, consisting of certain stated
classifications of employees of Respondents and of eight other employers, for the
purposes of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
B. The undisputed subsequent events
The employers in the multiemployer unit for which the Union was certified by-
the Board are known as commercial shops and will herein be sometimes collectively
designated as such. Most, but not all, of the employers in this unit were and have
been members of the Graphic Arts Association of Michigan, Inc, herein called the
Association. Respondents became members of this Association in March 1957 and'
paid dues through November 30, 1959. It was not the function of the Association
to act as the bargaining agent for, and in fact it did not bargain on behalf of, the
commercial shops. It merely "acted as secretary of the group, and as a fact gather-
ing agency for the group." In other words, the Association served the commercial
shops solely in an administrative capacity.
On October 21, 1959, Basil F. Thiel, the Union's president, sent a letter to each
of the employers in the multiemployer unit, including Respondents, and to the-
Association. The letter was addressed to all the commercial shops in the unit, in-
cluding Respondents, by name, and to the Association; advised that the Board had'
certified the Union on October 16 as bargaining representative of the employees "in
the above named shops"; and requested "an immediate meeting with the repre-
sentatives of your group or with you individually in order to negotiate a collective
bargaining contract covering wages, hours and conditions of employment for your-
employees."
On October 26, Ronald MacDonald, the Association's staff assistant, sent a letter
to each of the commercial shops, including Respondents, in which he stated that a
letter had been received from the Union requesting bargaining, that, Mr. Whaling,
1 American Publishing Corporation, et al. , 121 NLRB 115
2 124 NLRB 1227.
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1317
the Association's president, was out of town that week but that upon his return
"a meeting will be set up for the employers to discuss bargaining, choosing the
representatives to bargain, etc.," and that the Union would be informed to that
effect. About the same time, MacDonald so advised the Union's president.
By letter dated November 2, 1959, MacDonald informed all the commercial shops,
including Respondents, that a "meeting of the group" was scheduled at the Asso-
ciation's offices for Thursday, November 5, at 2:30 p.m. for the purpose of "discuss-
ing the coming negotiations" with the Union, and urging everyone to attend because
of the extreme importance of the meeting.
The meeting was held as scheduled on November 5. No representatives of
Respondents appeared at this meeting and no explanations were offered by Respond-
ents for failing to be represented. The representatives who attended the meeting
selected a chairman to head the employers' negotiating committee, and decided
upon a date for a collective-bargaining meeting with the Union. No formal nego-
tiating committee was chosen. This committee was to be composed of those com-
mercial shop representatives who appeared at the particular meeting and wished
to participate in the negotiations. At least two of the commercial shops represented
at the November 5 meeting were not members of the Association, and the person
selected as chairman was a representative of a nonmember commercial shop covered
by the multiemployer unit.
By letter dated November 5, 1959, and addressed to all the commercial shops,
including Respondents, by name, MacDonald advised of what had transpired at the
meeting, stated that a meeting with the Union "will be held on Monday, November
9, 1959, at 1:30 p.m. at the Association's offices" "for the purpose of negotiating a
contract," and closed with an invitation to attend the meeting.
About 10:45 a.m. on November 9, 1959, MacDonald spoke to Respondent Sklar
by telephone. Sklar acknowledged receipt of the November 5 letter but stated
that he would not attend the meeting that afternoon, without giving any explana-
tions or reasons therefor. That afternoon, about 45 minutes before the scheduled
negotiations were to begin, MacDonald received from Respondent Sklar a telegram
addressed to the Association. The telegram stated that Respondents did not consider
themselves "part of any multi-employer group for contract negotiations" with the
Union, that the Association was not authorized to act for Respondents "in present
negotiations," and that the telegram may be considered "as verification of our with-
drawal from the Association." A copy of this telegram was received by the Union
about the same time.
The negotiating meeting was held as scheduled that afternoon between repre-
sentatives of the Union and of the commercial shops, at least two of which were
not members of the Association. Thereafter, further negotiating meetings were
held until full agreement on a contract was reached on December 22, 1959, subject
to ratification by the membership of the Union. No representatives of Respondents
appeared at any of the negotiating sessions . On December 28, 1959, MacDonald
was notified by the Union that its membership had ratified the contract. Thereafter,
the agreement was reduced to writing and on January 12, 1960, was executed by the
Union and the commercial shops, except the Respondents.
By letter dated December 28, 1959, the Union's attorney, M. H. Goldstein, in-
formed Respondents that: A collective-bargaining agreement had been negotiated
on December 22, 1959, between the Union and representatives "of the employers
whose employees are included in the multi-employer bargaining unit described" in
the Board's Decision; said agreement was ratified by the membership of the Union
on December 27, 1959; "a formal document embodying the terms of said agreement
is being prepared, and, in accordance with past practice, each employer whose
mailroom employees are included in said bargaining unit will be requested to execute
the original of said formal contract document"; in his opinion, Respondents' tele-
gram of November 9 did not remove Respondents from the "multi-employer
group referred to" and did not absolve them of the "legal obligation to sign a con-
tract" negotiated by members of "said multi-employer group"; the Union would
present to Respondents "for signature the formal contract document as soon as that
document has been reduced to writing"; and requested Respondents to inform him
by return mail whether they will sign said document. The letter concluded with
the statement that Respondents' failure to reply by January 3, 1960, would be in-
terpreted as indicating Respondents' intention not to sign the contract. Respondents
made no reply to this letter.
On January 6, 1960, Union Attorney Goldstein telephoned to Respondent Sklar,
who acknowledged receipt of Goldstein's letter and Sklar's failure to reply thereto.
Goldstein asked whether he was to infer from Respondents' actions that they did
not intend to sign the contract. Sklar replied that that was a good inference to draw
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but preferred that Goldstein call Respondents' attorney. Goldstein then telephoned
to Respondents' attorney. While the testimony is in dispute as to the content of
their conversation, the Respondents have failed and refused to sign the said agree-
ment, as they admit in their answer to the complaint.
On February 18, 1960, Union President Thiel went to Respondents' place of
business to obtain Respondents' signatures to the negotiated agreement. Finding
-Respondent Sklar unavailable, Thiel left a copy of the contract and his business card,
with a request that Sklar telephone him at his convenience. Neither Sklar nor any
representative of Respondents, however, ever contacted Thiel.
C. The issue with respect to Respondents' withdrawal from the multiemployer unit
The Respondents contend that, before negotiations with the Union had begun,
they properly withdrew from the multiemployer unit for which the Union was
certified by the Board, and that the contract negotiated with the Union therefore
did not cover a unit which included employees of Respondents. The General
Counsel contends that the Respondents did not effectively remove themselves from
the multiemployer unit found appropriate by the Board.
As the Board stated in the representation proceeding,3 "an employer may properly
withdraw from an existing multiemployer unit provided it clearly evinces at an appro-
priate time its intention to pursue an individual course of bargaining ." [Emphasis
supplied.] The Board's position in this respect is more fully amplified in Retail
Associates, Inc., where the Board states as follows (120 NLRB 388, 393) :
The right of withdrawal by either a union or employer from a multiemployer
unit has never been held, for Board purposes, to be free and uninhibited, or
exercisable at will or whim. For the Board to tolerate such inconstancy and
uncertainty in the scope of collective-bargaining units would be to neglect its
function in delineating appropriate units under Section 9, and to ignore the
fundamental purpose of the Act of fostering and maintaining stability in bar-
gaining relationships. Necessarily under the Act, multiemployer bargaining
units can be accorded the sanction of the Board only insofar as they rest in
principle on a relatively stable foundation. While mutual consent of the union
and employers involved is a basic ingredient supporting the appropriateness
of a multiemployer bargaining unit, the stability requirement of the Act dictates
that reasonable controls limit the parties as to the time and manner that with-
drawal will be permitted from an established multiemployer bargaining unit.
Thus, the Board has repeatedly held over the years that the intention by a
party to withdraw must be unequivocal, and exercised at an appropriate time.
[Emphasis supplied.]
In the instant case , the Board found that a multiemployer unit, including Respond-
ents, constituted an appropriate unit for collective-bargaining purposes within the
meaning of the Act and on October 16, 1959, after the Union had won a Board
election among the employees in this unit, certified the Union as the exclusive bar-
gaining representative of certain classification of the employees in this multiem-
ployer unit. Respondents' attempted withdrawal from the certified multiemployer
unit about 3 weeks,after the Board's certification and about 45 minutes before the
commencement of the scheduled negotiations with the Union was not "exercised at
an appropriate time."'
The Supreme Court has held that a certification based on a Board-conducted elec-
tion must be honored for a reasonable period, ordinarily "one year," in the absence
of unusual circumstances .4 The certification in the instant case covered the multi-
employer unit; including Respondents. There is no showing of the existence of any
unusual circumstances for not having honored this certification within 3 weeks
after its issuance. To permit an employer to withdraw from the certified multi-
employer unit within such a short period after the issuance of the Board's certification
of the Union as the exclusive bargaining representative for stated employees in said
unit and before the Union had been afforded an opportunity to negotiate a contract
covering employees in said unit, would make a mockery of the Board's representation
and election processes and "ignor the fundamental purposes of the Act of fostering
and maintaining stability in bargaining relationship " 5
Moreover, and apart from the foregoing considerations, the Board in the rep-
resentation proceeding had refused to permit Respondents to "fragmentize the unit"
8 121 NLRB 115, 122.
* Ray Brooks v N L R B., 348 U.S. 96.
e The cases relied on by Respondents are inapposite because in none of them did the
employer's withdrawal from the multiemployer unit occur within the certificate year.
MICHIGAN ADVERTISING DISTRIBUTING COMPANY 1319'
(section III A, supra). To permit Respondents to withdraw from the multiemployer
unit after the issuance of the Board's certification would in effect nullify the results
of the Board's decision in the representation proceeding by now allowing Respondents
"to fragmentize" the unit.
For the foregoing reasons, I find that the Respondents did not effectively remove
themselves from the certified multiemployer unit and that the contract negotiated
with the Union, dated January 12, 1960, covered stated employees in the multi-
employee unit which included those employed by Respondents.
D. Respondents' conduct violative of the Act
It is well settled that the failure to sign an agreement negotiated with the certified'
bargaining agent constitutes a refusal to bargain within the meaning of Section,
8(a) (5) and (1) of the Act.6 The Respondents were fully apprised of the Union's
request to bargain and were invited and urged to attend the meetings of the multi-
employer group to formulate bargaining strategy as well as to participate in negotiat-
ing meetings with the Union. Respondents cannot be absolved of their legal obliga-
tions by their failure 'to attend and participate in these meetings and negotiations.
At all times up to the date of the hearing in this proceeding, Respondents have failedd',
and refused, upon the Union's request, to sign the agreement which the Union,
negotiated with the representatives of the multiemployer group. I find that by suchi
conduct Respondents have violated Section 8(a) (5) and (1) of the Act v
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Respondents 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 obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I will recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondents have refused to bargain with the Union by
failing and refusing to sign the contract negotiated by the Union and the representa-
tives of the multiemployer group, dated January 12, 1960, I will recommend that
Respondents be ordered forthwith to sign said agreement.8
In view of the nature and extent of Respondents' unfair labor practices, I am not
convinced that the commission of other unfair labor practices by Respondents rea-
sonably may be anticipated. Contrary to the General Counsel's request in his brief,.
I will therefore not recommend a broad cease and desist order.
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. Detroit Mailers Union No. 4, International Mailers Union, Ind., is a labor
organization within the meaning of Section 2(5) of the Act.
2. The following employees constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act: All employees doing work
appertaining to mailing, such as addressing, tagging, stamping, labeling, bundling,
or wrapping; cutting lists or wrappers (including galley work); operating stencil'
8 H J Heinz Company v. N L.R.B., 311 U.S. 514, 523; Cosmopolitan Studios, Inc,
127 NLRB 788.
7 Had the Union sought to bargain with the Respondents individually on a single-
employer unit basis, as Respondents contend in their brief to be a prerequisite to a find-
ing of a refusal to bargain, the Union's conduct would have been in derogation of the
Board's certification of the multiemployer unit as being the appropriate unit and hence
would have constituted a refusal to bargain by the Union. See, e g , International Brother-
hood of Electrical Workers, AFL-CIO and Local 59, International Brotherhood of Elec-
trical Workers, AFL-CIO (Texlite, Inc ), 119 NLRB 1792; International Longshoremen's-
Association et at. (New York Shipping Association, Inc, et at ), 118 NLRB 1481 ; Douds V.
International Longshoremen's Association (New York Shipping Association, Inc., et al ),
241 F. 2d 278, 283 (C.A. 2).
8H. J Heinz Company v. N.L.R.B., 311 U.S. 514, 523; Cosmopolitan Studios, Inc.,
supra.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machines , filing or correcting stencils; sorting, routing, dissecting , or marking wrap-
pers; taking bundles or papers from conveyors or escalators ; stacking, jogging, fold-
ing; handling or bundles or mail sacks; distributing , counting of papers ( leaving
or returning ); typing by hand or power machine; sacking , delivering papers to mailers,
carriers , agents, or newsboys, inserting or dispatching of papers , envelopes , magazines,
or circulars ; whether done by hand or power machines , including auxiliary machines
used in preparatory work for making plates, stencils or any devices that may be used
in placing names and addresses on wrappers, or papers now in use or in the future
may be introduced, and jogging of papers or wrappers to be used on any automatic
mailing machine , employed by the commercial shops, i.e., Accurate Mailing &
Distributing Service; American Mailers and Binders; Chene Printing Co.; Detroit
Gravure Corporation; Gratiot-Herald, Inc.; Jourdan Co., Inc.; Michigan Advertising
Distributing Co.; Michigan Catholic Co.; and Reliable Mailing Service Co. at their
plants in Detroit, Michigan , excluding all other employees, office and clerical em-
ployees, guards and supervisors as defined in the Act, and other employees covered
by contracts involving work other than specified above .9
3. At all times since October 16, 1959, the above-named Union has been, and
now is, the exclusive representative of all employees in the aforestated appropriate
unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment , within the meaning
of Section 9(a) of the Act.
4. By failing and refusing to sign the agreement negotiated by the Union and the
commercial shops, dated January 12, 1960, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
B 121 NLRB 115, 123-124.
Highway Truckdrivers & Helpers, Local 107, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, Independent and Safeway Stores, Incor-
porated . Case No. 4-CD-46. December 15, 1961
OPINION
The opinion herein is supplemental to our telegraphic order of
_April21,1961, quashing the notice of hearing.
On September 1, 1960, the Board (Member Fanning dissenting)
had issued a Decision and Determination of Dispute (129 NLRB 1)
in this proceeding in which it found reasonable cause to believe that
Respondent, Local 107, engaged in picketing the Charging Party,
Safeway, with an object of forcing or requiring Safeway to reassign
certain truckdriving work from Safeway employees who were mem-
bers of Locals 639 and 660 to other Safeway employees who were
members of Local 107. The Board held that this was a dispute cog-
nizable under Section 10(k) of the Act and, pursuant thereto, made
a determination that Local 107 "is not and has not been lawfully en-
titled to force or require Safeway Stores, incorporated, to assign
trucking duties to its members rather than to members of Teamster
Locals 639 and 660." Ibid.
134 NLRB No. 130.