Portland Stereotypers', etc., Union No. 48

National Labor Relations Board - Board Decisions

Jun 25, 1962

137 N.L.R.B. 782 (N.L.R.B. 1962)

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were terminated . Also, as previously noted, when McKnight was reinstated
Respondent indicated a lack of resentment against union activity so long as it was
carried on properly . Under these circumstances , it is believed that the Rubin Bros.
doctrine is not applicable . Accordingly , I reject the General Counsel 's contention.
CONCLUSIONS OF LAW
1. Burnup and Sims , Inc., is engaged in, and during all times material was engaged
in, commerce or in a business affecting commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. Local Union No. 172 , Airline Supply Technicians , affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, is a labor organization within the meaning of Section 2 ( 5) of the Act.
3. Respondent did not discriminate against Robert J. Davis, Joseph H . Harmon,
and John P . McKnight in violation of Section 8(a) (1) and ( 3) of the Act , as alleged
in the complaint herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , I recommend that the complaint in this matter be
dismissed in its entirety.
Portland Stereotypers' and Electrotypers ' Union No. 48 and
International Stereotypers' and Electrotypers ' Union of North
America, AFL-CIO and Journal Publishing Co. and Oregonian
Publishing Co. Case No. 36-CB-244. June 25, 1962
DECISION AND ORDER
On October 18, 1960, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the Respondents, the
Charging Parties, and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs. On April 17, 1961, the
Supreme Court of the United States issued its decisions' in N.L.R.B. v.
News Syndicate Company, Inc., and other cases involving matters
possibly relevant to this case,' and thereafter the Respondents and the
Charging Parties filed supplemental briefs in the light of those
decisions 2
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
1 N.L.R.B. v. News Syndicate Company, Inc. and New York Mailers' Union No. 6, Inter-
national Typographical Union, AFL-CIO, 365 U.S. 695 ; Local 60, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, et at . ( Mechanical Handling Systems) v.
N.L.R.B., 365 U. S. 651 ; Local 357, International Brotherhood , of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express ) v.'N:L.R.B.,
365 U.S. 667 ;- International Typographical Union, AFL-CIO (Haverhill Gazette) v.
N.L.R.B., 365 U .S. 705.
, 2 The Respondents ' request for. oral argument is denied as , in the opinion of the Board,
the. record , including the exceptions and briefs , adequately presents the contentions and
the positions of the parties.
137 NLRB No. 97.
PORTLAND STEREOTYPERS', ETC., UNION NO. 48 783
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent they are consistent with the
decision herein.
1. The complaint alleged, and the Trial Examiner found, that the
Respondents had violated Section 8(b) (1) (B), (2), and (3) of the
Act by adamantly insisting upon, during bargaining negotiations,
and then striking for, certain terms and conditions in a new collective-
bargaining agreement.
More specifically, the Respondents were alleged to have violated
Section 8(b) (1) (B) by insisting that the foremen of the stereotype
departments, who represented the employers at early stages of the
grievance procedure, be union members, to have violated Section
8(b) (2) by insisting upon four conditions, which, taken together,
constituted an illegal closed shop and thus an attempt to cause, or
causation of, discrimination within the meaning of Section 8(a) (3) ;
to have violated Section 8(b) (3) by insisting upon all the above, plus
further insistence, after the strike began, upon provisions that all
employees who respected the Respondents' picket line be rehired, and
that all contracts signed by the employers with all employee represent-
atives have the same expiration date.
The Respondent Local 3 has represented the employees of the stereo-
type departments at both of the newspapers involved herein in a
single unit for many years. A contract between the local and the
employers was to expire on September 14, 1959. From August 24,
1959, until January 1960 the Respondents and the employers engaged
in prolonged negotiations that continued during a strike that began
on November 10, 1959, and was still current at the time of the hearing
in this case in June 1960.
Starting points for the negotiations were the Respondents' proposed
new contract and the employers' counterproposal. From the Respond-
ents' point of view the principal issues were economic; they sought
higher wages and certain other additional benefits. The employers
were concerned with economic issues too, from the point of view of
cutting expenses and of more efficient utilization of manpower. They
were also seriously concerned with possible liability under the then
current Brown-Olds 4 doctrine of the Board, and therefore sought to
achieve complete legality in employment arrangements.
Negotiations dealt mainly with the matters that concerned the pub-
lishers. It rapidly developed that the principal issues between the
8 The Trial Examiner treats both Respondents together . We agree with his ultimate
conclusion that whatever liability attaches here attaches to both Respondents because of
the extent of the Respondent International 's participation in the negotiations here.
However , we note that it is the Respondent Local which has represented these employees.
and which was the signatory to the last contract with the publishers.
4J. S. Brown -E. F. Olds Plumbing & Heating Corporation, 115 NLRB 594.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties were: (1) whether the foreman of the stereotype department
could be required to be a union member; (2) the extent to which the
bylaws and constitutions of the Respondents were to be incorporated
in any new contract; ( 3) the manning of equipment; and (4) the
right to substitute.
Central to the complaint, in our view, is the contention that the
position of the Respondents on these four issues was, basically, an
insistence on closed-shop conditions in violation of the Act. We do
not agree that such insistence has been shown, but before considering
in detail the reasons for our conclusions in this respect, we deem it
appropriate to eliminate certain factors from the case.
The most important of these is reliance upon the alleged illegality
of the Respondents' bylaws. The decision of the Supreme Court in
News Syndicate 5 indicates that savings clauses are to be given their
face value. Here the Respondents originally proposed the incorpora-
tion of their constitutions and bylaws to the extent they did not con-
flict with the Act. When the publishers sought a more specific listing
of laws, the Respondents submitted such a listing, again adding that
these laws were not to be changed other than to bring them into con-
formity with the Act. These two positions were the only ones the
Respondents took on this issue, and we are satisfied that there was,
thus, no insistence on incorporation of illegal provisions. We there-
fore reject the Trial Examiner's contrary finding, based on the law
as he interpreted it before the decision in News Syndicate.
Nor do we believe, in view of the above, that any improper implica-
tions exist in the Respondents' position on manning. What was in-
volved here was the question of the number of employees required to
operate the publishers' machinery, and most particularly the number
that would be required to operate a new machine, known as the M.A.N.,
that one of the publishers was planning to buy. The Respondents
would not, for the greater part of the negotiations, agree that this
could be operated by less than four men. Although this is the number
that is required by the bylaws, the dispute between the parties, in this
respect, was an economic one in that the basic concern of the Respond-
ents was not connected with union membership but solely with the
number of jobs that would exist. This was clearly an entirely proper
subject of their concern. We therefore do not believe that the posi-
tion of the Respondents on this issue tends to establish a demand for
illegal conditions of employment.
We turn then to the foreman and substitute issues . The Respond-
ents sought to require union membership for foremen , but were agree-
able to clauses that provided they would not be subject to union disci-
pline for carrying out the instructions of the publishers in accordance
with the contract. The publishers had no objection to the foremen's
8 N.L.R .B. v. Newa Syndicate Company, Inc., et at., 365 U . S. 695.
PORTLAND STEREOTYPERS', ETC., UNION NO. 48 785
union membership as such ; their concern was with having it com-
pulsory. As it is clear that the Respondents had conceded during
negotiations that the foremen would not be subject to union discipline
for the hiring of nonmembers, it would appear that a contract pro-
vision requiring union membership for the foremen would not, under
the decision of the Supreme Court in News Syndicate, be violative of
Section 8(b) (2).
We come, then, to the last element of the closed shop allegations-the
Respondents' position on the substitute issue. The Trial Examiner,
viewing this issue in connection with the other points on which he had
found against the union, found here too that the Respondents were
seeking conditions violative of the Act. For the reasons set forth below
we do not agree.
As set forth in the Intermediate Report, the substitute issue had two
facets. The more important, as between the parties, was the question
of who had first call on substitutes; the lesser issue was how one be-
came a substitute. First call on substitutes refers to the existing prac-
tice, at the time of these negotiations, whereby a journeyman stereo-
typer could take time off without the approval of the foreman, if he
provided a substitute. And the employers maintained a roster of regu-
lar substitutes. In practice, substitution by the employees meant that
if the employer required the services of substitutes, it might find itself
obligated to pay overtime rates because all substitutes had been pre-
empted, and men who had already worked five shifts would have to be
used. To reduce costs in this respect, the publishers did not want to
continue the unrestricted right to substitute, but instead would have
required the employee to get the foreman's permission. The Respond-
ents would not agree.
The other aspect of this question turns on hire of new employees
who would first be substitutes, before they could become regular em-
ployees, or situation holders as they are called. It seems clear that
prior to the events involved here, there had been no nonunion members
working for the publishers in these departments. The question is
whether the Respondents were insisting on a continuation of such
conditions. We do not agree with the Trial Examiner that they were.
The Respondents' original proposal included a valid union-security
clause and another clause providing that when any employee was off
duty for any reason his situation would be covered by a union mem-
ber. The publishers were not entirely satisfied with this and further
negotiations ensued. The record indicates, and the Trial Examiner
found, that at least as of October 12, there was acceptance of an agree-
ment that hiring would be on a nondiscriminatory basis. However,
the strike adverted to above occurred on November 10, when this agree-
649856-63-vol. 13T-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment still existed. Therefore it is clear that illegal conditions of em-
ployment were not a factor in causing the strike.
In this connection we would note our belief that the Trial Examiner
did not sufficiently consider what may have been the causes of the
strike. As the Respondents argue, there were great differences be-
tween the parties on purely economic issues. At the time of the strike
the union could not report to its members any significant progress at
all toward a new agreement after some 21/2 months of negotiations.
We are not suggesting at this point that there was bad faith on either
side. We do suggest, however, that the course of negotiations had not
been very fruitful and that this is a factor to be considered in attempt-
ing to assess cause of the strike and what in fact the union was insisting
on. By failing to do this and weigh this factor, the Trial Examiner
has, in our view, misplaced the emphasis by dealing with only part of
the situation.
However, as noted above, the strike began on November 10. The
first bargaining session thereafter occurred on November 17. The
publishers then stated they were withdrawing all agreements reached
to that point and reverting to their original proposal. The Respond-
ents replied in kind, and negotiations resumed with the publishers
now offering considerably more onerous terms. As the strike con-
tinued the publishers obtained replacements for the strikers and be-
came reluctant to agree to any form of union security, and the
Respondents were concerned to get all the strikers back to work, in
preference to the replacements.'
Despite this, after the strike began, as well as before, the Respond-
ents indicated their willingness to alter previous positions. Thus, for
example, on January 15, 1960, the Respondents proposed hiring with-
out regard to union membership and with the further proviso that the
provision was to be construed in accordance with the Act. While it
is true that an earlier union proposal of December 11, 1959 , is per-
haps susceptible of the construction that union members were to be
preferred in hiring, the very fact that Respondents did change their
position to this extent persuades us that there was not in fact insistence
on illegal conditions of employment. Especially would we so hold
where, as here, there has not been any contract signed, the parties
did not reach final agreement on any clause in this matter, and the
strike situation had become embittered because of the publishers'
more rigorous position as the strike continued. We therefore find
that the Respondents did not violate 8 (b) (2).'
6 Clearly a legitimate bargaining demand . See Swarco, Inc. (Swan Rubber Company
Division of Ameiace Corp ) v. N.L R BN°303 F. 2d 668 (C.A. 6).
'We note that the complaint, with respect to the Section 8(b)(2) violation, can be
construed as pieinising the violation on the combination of the four elements discussed
above The Trial Examiner's understanding of the complaint and his finding can be simi-
larly construed See Intermediate Report, section III, C, particularly the first paragraph
and also the last para graph of the last subsection thereof, entitled "Analysis and Con-
PORTLAND STEREOTI PERS', ETC., UNION NO. 48 787
2. The allegation of 8(b) (1) (B) rests on coercion of the publishers
in their choice of a bargaining representative because of the Respond-
ents' insistence that the foremen, who concededly handled grievances,
be a member of the union. In Haverhill Gazette,' the Supreme Court
was equally divided on whether a strike for such an object was vio-
lative of 8(b) (1) (B), thus leaving in effect the decision of the court
of appeals 9 that it was, with which the Board agrees. An employer
must be free of pressure in choosing his representatives for collective
bargaining.10 We therefore find that by insisting upon and striking
for this clause the Respondents violated Section 8(b) (1) (B).
3. The complaint alleged, and the Trial Examiner found, that the
Respondents had refused to bargain within the meaning of 8(b) (3)
by all the conduct considered above, plus two additional demands
made after the strike, that all collective bargaining agreements in the
plants have the same expiration date and that all employees who had
refused to cross picket lines be rehired. The Trial Examiner conceded
that the evidence with respect to these latter points was sketchy. We
agree. We therefore agree with the Trial Examiner's ultimate con-
clusion herein that the Respondents refused to bargain but unlike
him base our finding solely on the Respondents' violation of
8(b) (1) (B) as noted above, by their coercion of the publishers in
the choice of a bargaining representative.
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
elusions." That the Trial Examiner did not consider himself to be passing upon any
purely economic demands, or upon the propriety or necessity of the practice of substitu-
tion appears most clearly at footnote 12 of the Intermediate Report . The Trial Examiner
there states that his cease -and-desist recommendations are not applicable to any demands
with respect to either manning or substitutes that do not involve the incorporation of
the constitutions and bylaws of the Respondents . We agree that the practice of substitu-
tion, as such , standing alone, is not before us
s International Typographical Union , AFL-CIO (Haverhill Gazette ) v. N.L.R.B., 365
U.S. 705.
8278 F. 2d 6 (C.A. 1).
We do not agree with our dissenting colleague, Member Rodgers, that there is any in-
consistency in accepting the reasoning of the Court of Appeals for the First Circuit with
respect to the violation of Section 8(b)(1)(B ) but not as to Section 8(b)(2). It seems
to us that the consequence of the News Syndicate opinion of the Supreme Court is that
the foreman clause is not necessarily a violation of 8(b )( 2), and that therefore , despite
some ambiguity in the court 's opinion in Haverhill Gazette, we are justified in relying on
the specific consideration given to this problem in News Syndicate The 8( b) (1) (B)
issue, on the other hand, rests upon other considerations , and as to them we find the
reasoning of the court of appeals persuasive.
"We are aware that it is not a necessary part of the foreman's job to participate in
grievance adjustments , and that the effect of the Respondents ' position that he be a
member could easily have been negated by removing that part of his functions No such
proposal seems to have been made We find this distinguishable from the situation with
respect to the foreman' s hiring duties , where the Respondents did canvass the other
possibilities The Respondents were not interested in limiting the scope of the foreman's
duties in this respect. In fact the record indicates that the Respondents were reluctant
to agree to any change in the duties of the foremen , whether to narrow or broaden his
responsibilities
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondents, Portland Stereo-
typers' and Electrotypers' Union No. 48 and International Stereo-
typers' and Electrotypers' Union of North America, AFL-CIO, their
officers, agents, representatives, successors , and assigns , shall:
1. Cease and desist from refusing to bargain collectively with Ore-
gonian Publishing Co. and Journal Publishing Co. in behalf of the
employees in the appropriate unit by demanding and striking for a
contract clause requiring a foreman to be a union member covered
by the contract, thereby restraining or coercing Oregonian Publishing
Co. or Journal Publishing Co. in the selection of their representative
for the purpose of collective bargaining or the adjustment of
grievances.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Oregonian Publishing
Co. and Journal Publishing Co. as the representative of the employees
in the appropriate unit.
(b) Post in conspicuous places at the business offices of Portland
Stereotypers' and Electrotypers' Union No. 49 and International
Stereotypers' and Electrotypers' Union of North America, AFL-CIO,
and at all other places where notices to members of Respondent Local
No. 48 are customarily posted, including the stereotype departments of
Oregonian Publishing Co. and Journal Publishing Co., the publishers
willing, copies of the notice attached hereto marked "Appendix." 11
Copies of said notice, to be furnished by the Regional Director for the
Nineteenth Region, shall, after being signed by duly authorized offi-
cers of Respondent International and Respondent Local, be posted by
them immediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places. Reasonable steps
shall be taken by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken by Respondents to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleged violations of the Act not found herein.
MEMBER RODGERS, dissenting in part :
I disagree with my colleagues' holding that the Respondents in
striking for a contract provision making union membership of fore-
men compulsory 12 did not violate Section 8(b) (2) and (3) of the Act.
u In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
12 While the matter is not entirely free from doubt, I accept my colleagues' finding that
during the course of the negotiations Respondent indicated its willingness to provide in
the contract that foremen were not to be subject to union discipline.
PORTLAND STEREOTYPERS', ETC., UNION NO. 48 789
In resting their holding here upon the Supreme Court's decision in
News Syndicate, the majority has overlooked the fact that the same
day it handed down its News Syndicate decision, the Supreme Court,
being equally divided, affirmed the judgment of the Court of Appeals
for the First Circuit that a strike to obtain such a foremen clause
violated Section 8(b) (2) and (3). International Typographical Un-
ion, AFL-CIO (Haverhill Gazette) v. N.L.R.B., 365 U.S. 705. So far
as is material here, the First Circuit in its opinion (278 F. 2d 6 at 12)
had stated :
There can be no doubt that the foreman's duties necessarily in-
cluded participation in the adjustment of employee grievances.
Hence, by insisting that the foremen must be union members, the
unions were restraining and coercing the employers in the selec-
tion of their representatives for grievance adjustment purposes.
Not only would the clause as proposed by the unions limit the em-
ployers' choice of foremen to union members, but it would also
give the unions power to force the discharge or demotion of a
foreman by expelling him from the union.
It seems to us equally clear, however, that by insisting on the
foreman clause as they wanted it, the unions violated § 8 (b) (2) of
the Act . . . . for the effect of the clause would be to cause the
employers to discriminate in favor of union men in appointing
their foremen thereby encouraging aspirants for that position to
join the union. And § 8(b) (2) covers all situations in which the
union seeks to cause the employer to accept conditions under which
any non-union employee or job applicant will be unlawfully dis-
criminated against. N.L.R.B. v. National Maritime Union, 2 Cir.,
1949, 175 F. 2d 686, 689. Thus we believe that by striking for the
foreman clause the unions violated § 8 (b) (2) of the Act as well as
§ 8(b) (1) (B).
I note that elsewhere in their opinion my colleagues rely upon the
First Circuit's decision to find the Section 8 (b) (1) (B) violation based
on the fact that the foremen here "concededly handled grievances,"
but have made no reference to that court's 8(b) (2) finding. I do not
think that my colleagues can do this plausibly, i.e., rest upon Haver-
hill Gazette to find the 8 (b) (1) (B) violation, but ignore that decision
when considering the 8 (b) (2) allegation. If my colleagues are of the
opinion that the First Circuit's finding here was erroneous, I think
they should so state.
In my view, the opinion of the First Circuit is sound, and I would
find the Section 8 (b) (2) and (3) violations.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS OF PORTLAND STEREOTYPERS ' AND ELECTRO-
TYPERS' UNION No. 48 AND INTERNATIONAL STEREOTYPERS' AND ELEC-
TROTYPERS ' UNION OF NORTH AMERICA, AFL-CIO AND TO ALL
EMPLOYEES OF OREGONIAN PUBLISHING CO. AND JOURNAL PUB-
LISHING CO.
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 you that :
WE WILL, upon request, in our capacity as bargaining repre-
sentative of all employees of the stereotype departments of
Oregonian Publishing Co. and Journal Publishing Co., excluding
foremen and supervisors, bargain collectively in good faith.
WE WILL NOT refuse to bargain collectively with the above
employers by insisting upon and striking for a contract clause
requiring foremen to be members of the union covered by the
contract, thereby coercing and restraining Oregonian Publishing
Co. and Journal Publishing Co. in the selection of their repre-
sentatives for the purposes of collective bargaining or the adjust-
ment of grievances.
PORTLAND STEREOTYPERS ' AND ELECTRO-
TYPERS' UNION No. 48,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
INTERNATIONAL STEREOTYPERS' AND ELEC-
TROTYPERS' UNION OF NORTH AMERICA,
AFL-CIO,
Labor Organisation.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Subregional
Office, 612 Lincoln Building, 208 SW. Fifth Avenue, Portland, Ore-
gon, Telephone Number, Capitol 2-1607, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard at Portland , Oregon , on June 1, 2, and 3 , 1960. The
complaint alleges that Portland Stereotypers ' and Electrotypers' Union No. 48 and
International Stereotypers ' and Electrotypers ' Union of North America , AFL-CIO,
herein called Respondent Local and Respondent International , respectively, have
PORTLAND STEREOTYPERS', ETC., UNION NO. 48 791
engaged in unfair labor practices within the meaning of Section 8(b)(1)(B), (2),
and (3) of the Act. The alleged violations are premised upon insistence by Re-
spondents in collective-bargaining negotiations with the two Portland, Oregon,
newspapers of general circulation, the Oregon Daily Journal and The Oregonian,
on illegal clauses or conditions; by striking to obtain them; and by insistence after
the commencement of the strike upon additional illegal conditions. Briefs have been
submitted by counsel for all parties. Respondents' motion to dismiss is hereby
denied.
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 THE EMPLOYERS
Oregonian Publishing Co. is an Oregon corporation with its principal office and
place of business at Portland, Oregon, where it publishes a daily newspaper called
The Oregonian and a Sunday newspaper called The Sunday Oregonian. Journal
Publishing Co. is an Oregon corporation having its principal office and place of
business at Portland, Oregon, where it publishes a daily newspaper called Oregon
Daily Journal and a Sunday newspaper called Oregon Sunday Journal.
Each newspaper annually purchases newsprint and other materials from points
outside the State of Oregon valued in excess of one-half million dollars; enjoys a
gross volume of business in excess of $1,000,000; utilizes national and International
news services; and realizes revenue in excess of $100,000 from the sale of newspapers
and the publication of advertising for clients outside the State of Oregon. I find
that the operations of the employers affect commerce.
II. THE LABOR ORGANIZATIONS INVOLVED
Portland Stereotypers ' and Electrotypers ' Union No. 48 and International Stereo-
typers' and Electrotypers ' Union of North America , AFL-CIO, are labor organiza-
tions admitting to membership employees and individuals employed by the employers.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement; the issues
There is little conflict concerning the salient facts in this case. The newspapers
involved, as is common knowledge, are the two principal papers published in Port-
land, Oregon. Respondent Local has for many years been recognized by these two
papers as the collective-bargaining representative of the employees of the stereotype
departments of both papers in a single unit. This combined unit consists of ap-
proximately 50 employees or individuals and the last contract between the two
papers on the one hand, and Respondent Local on the other, ran from September 15,
1957, through its expiration date of September 14, 1959.
Twenty-eight bargaining meetings concerning a new contract were held com-
mencing August 24, 1959, and continuing into January 1960. The minutes of the
first 25 meetings, those through December 29, 1959, have been introduced in evidence.
Discussions at these meetings covered the union's original contract proposal sub-
mitted to the publishers in July 1959, as well as the counterproposal submitted by
the latter to Respondent Local 1 month later. Agreement not having been reached,
Respondent Local, with the sanction of Respondent International, commenced a
strike against both papers on November 10, 1959, and the strike is still being carried
on with both papers, at least as of the date of the termination of this hearing, being
published in substantially normal fashion after overcoming some major difficulties
at the outset of the strike and for a period of time thereafter.
The General Counsel attacks herein Respondents ' I insistence upon various al-
legedly illegal conditions prior to the strike, the strike to enforce such demands, and
their insistence on other illegal conditions after the commencement of the strike.
Respondents have contended that their strike was totally economic in character and
was therefore protected under the Act. Indeed, it is claimed that the Charging
Parties made no economic concessions in the period prior to the strike, except for
one of a minor nature as to the beginning wage scale for apprentices.
While the record discloses some support for this claim by Respondents, it also dis-
closes that the publishers were expressly endeavoring during these meetings to change
' The International is joined herein as a Respondent and is so treated in the findings
made below because of its participation in the bargaining negotiations , its restrictions
upon local unions in contract negotiations , and the requirement of union laws that the
International approve all local contracts
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or amend existing conditions of employment coupled with contract clauses which in
their belief (1) imposed undue restrictions on their utilization of personnel and
(2) might subject them to potential liability, within the meaning of the Brown-Olds
decision of the Board because of the imposition of closed-shop conditions in excess
of the limited union-security conditions permitted under the Act.
B. Violation of Section 8(b)(1)(B)
It is contended that Respondents insisted upon and struck for contract language
which coerced the publishers in the selection of "representatives for the purposes of
the adjustment of grievances ... ," within the meaning of Section 8(b) (1) (B)
of the Act .2
The Oregonian has one foreman and the Journal one general foreman , each in
charge of the respective stereotype departments. There is a conflict as to whether
the two assistant foremen at The Oregonian and the three assistant foremen at the
Journal are supervisors within the meaning of the Act and the extent to which they
enjoy the powers and exercise the responsibilities of foremen .3
The record is amply clear, and I find, that the foremen in the stereotype depart-
ments of both publishers had the responsibility at certain stages for the adjustment
of grievances with unions and in fact did adjust such grievances . Therefore, they
meet the definition of the statute and the issue is thus presented as to whether Re-
spondents restrained or coerced the publishers in the selection of such representatives.
Respondents' contract proposal, which was the only complete proposal submitted
by them, states that Respondents shall be the collective bargaining agency for em-
ployees of the stereotype departments. However, Section 7 of the same proposal
treats specifically with foremen and states , "only Union foreman [sic] or assistants
shall issue orders to members employed in the Stereotype department." (Emphasis
supplied .) No contention is made herein that any employees of the stereotype de-
partments were not members of Respondents.
This clause along with others was rejected by the publishers. Their bargaining
team , consisting of William Morrish of The Oregonian and D. S. Haines of the
Journal , proposed that foremen be excluded from contract coverage. At one point
in negotiations, early in October, International Representative Robinson, who was
on the scene for 6 meetings during that month, tentatively agreed to exclude fore-
men from contract coverage subject to a check of the applicable law. But, as Robin-
son testified and I so find, he rescinded his agreement at the October 14 meeting
because, after consulting with an undisclosed representative of the National Labor
Relations staff in Portland, he ascertained or concluded that there was no illegality
in the coverage of foremen by the contract. The minutes of the October 14 meet-
ing are to the same effect.
Morrish testified that Respondents' position on coverage of foremen by the con-
tract remained unchanged up to the date of the strike. Theodore Cotner, an em-
ployee of the Journal and a member of the negotiating committee, testified originally
that Respondents did not strike for a clause in the contract that foremen must be
union members. However, he admitted that the subject was discussed during a
meeting of the membership at which the November 10 strike was authorized and
that the membership was informed on this occasion that the publishers were insisting
that it was illegal to cover foremen in the contract. And, on cross-examination, he
was asked what the union demands were in relation to foremen on the date of the
strike and replied, "I believe we asked that they belong to the Union and be covered
by the contract." I find, in view of the foregoing that this was a contract demand by
Respondents and that it was one of the contract demands for which Respondents
struck on November 10, 1959.4
Indeed, in perusing the minutes of the meetings held during the strike, one notes
that this was a very live issue at many of them. For example, at the December 1
z Tbere is some ambiguity in the complaint. as well as in the General Counsel's brief,
as to whether this alleged conduct is also alleged to constitute a violation of Section
8(b) (2) of the Act I believe the complaint is broad enough to support such an allega-
tion, it appears to have been so regarded by the parties, and this topic is treated
hereinafter.
8 The General Counsel does not press herein for a determination as to the precise status
of the assistant foremen, his view being that a decision by the Board as to foremen will
be a guide to the parties and therefore will be dispositive of this issue in the future.
* I deem it unnecessary to detail the changes of position during negotiations on the
issue of coverage of foreman, because the testimony of Robinson and Morrish and the
minutes all disclose and I have found that, as of October 14 and up to and during the
strike, Respondents had reverted to their original position that foremen be covered.
PORTLAND STEREOTYPERS, ETC., UNION NO. 48 793
meeting, a Federal conciliator referred to it as one of the "main issues of difference."
It is contended that the publishers ' selection of a foreman under so restrictive a
clause must perforce be limited only to those persons who are willing to join Respond-
ents, accept and honor obligations as members , and pay initiation fees and dues. It
is claimed that the employer has a right to select its bargaining representative for
the adjustment of grievances free from such a restriction and that this is correlative
to the right enjoyed by a labor organization to select its bargaining representatives free
from ouside dictation . See Leo H. Hill et al. v. State of Florida, etc ., 325 U.S. 538.
If I read the Act correctly , these employers are given the right to select their own
management representatives for the purposes of collective bargaining or adjustment
of grievances without limitations from any source . It perforce follows that conduct
by Respondents , in support of a demand requiring union membership on the part
of foremen, does tend to restrain or coerce the employers in the selection of their
bargaining representatives within the meaning of Section 8(b)(1)(B ) of the Act.
But the record demonstrates , as the General Counsel and the Charging Parties
contend, that the efforts of Respondents went further . The contract which expired
in September 1959 provided that "The laws of the International Stereotypers and
Electrotypers Union in effect January 1, 1954 , not in conflict with this contract, shall
not be subject to arbitration . The parties of the first part hereby agree to recognize
the General Laws of the International Stereotypers and Electrotypers Union of North
America in effect as of January 1, 1954 , in so far as said laws are not in conflict with
the provisions of this contract."
The new contract proposal submitted by Respondents similarly provided:
UNION LAWS
SEC. 34. The party of the first part agrees to respect and observe the condi-
tions imposed by the local union Constitution & By-Laws and the constitution
and General Laws of the International Stereotypers' & Electrotypers' Union,
copies of which are attached hereto and made a part of this agreement, and which
do not conflict with the contract, or the Labor-Management Relations Act.
And it is further agreed that local union laws not affecting wages, hours or
working conditions, and the laws of the International Steretoypers' & Electro-
typers' Union shall not be subject to arbitration.
Section 1 of the general laws of the International provides that every person ad-
mitted as a member shall take an oath providing in part that he will "use every
endeavor to procure employment for members of the International Stereotypers and
Electrotypers Union in preference to others." Section 4 provides that all who
become members "must obey the laws (union), journeymen and foremen alike."
[Emphasis supplied.] Indeed, article XIII, section 1, of the International constitution
decrees that both local and International representatives "shall not contract with any
employer allowing a section of the contract to specify that the Union party to the con-
tract cannot force the members, either foremen or journeymen, to live up to the
Union laws."
Demonstrating that the proposed contract language in the instant case is directed
to existing rather than prospective union membership of foremen, section 17 of the
International general law provides that any "foremen or assistant foremen having
charge of or supervising the work of any Union Stereotypers or Electrotype depart-
ment must be a member of good standing in this Union." [Emphasis supplied.]
Manifestly, this is not stated in terms of an open union with 30 days to join, but
rather in terms of preexisting union membership.
In sum, the finding is inescapable that this complex of contract proposal and
International constitution and laws would give Respondents control of the selection
of a foreman from among a group of candidates restricted to union members only.
It is, of course, entirely understandable that an established craft organization is
desirous of retaining long-standing control over such conditions of employment. It
is equally understandable that Congress saw fit to legislate in this area along lines,
in part, contrary to Respondents' objectives and on a broader basis, recognizing in
Section 1 of the Act that "It is the purpose and policy of this Act . . . to prescribe
the legitimate rights of both employees and employers. . . To provide orderly
and peaceful procedures for preventing the interference by either with the legitimate
rights of the other, to protect the rights of individual employees in their relations
with labor organizations...: '
In International Typographical Union Local 38 (Haverhill Gazette) v. N.L.R.B.
278 F. 2d 6, the Court of Appeals for the First Circuit stated, in a closely parallel
situation, "There can be no doubt that the foreman's duties necessarily included
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participation in the adjustment of employee grievances. Hence, by insisting that the
foremen must be union members, the unions were restraining and coercing the
employers in the selection of their representatives for grievance adjustment purposes.
Not only would the clause as proposed by the unions limit the employers' choice of
foremen to union members, but it would also give the unions power to force the
discharge or demotion of a foreman by expelling him from the union."
It is noteworthy in this context, as well as in the discussion of the alleged violations
of Section 8(b)(2) and (3) hereinafter, that International Representative Robinson
stated during the negotiations that the International constitution establishes manda-
tory criteria for the conduct of locals and that "in negotiating a contract, we're not to
deviate from our General Laws." He also testified and I so find that all local con-
tracts must be approved by the International president and that any local contract
which did not conform to the general laws would not be recognized.
Actually, this precise issue was treated some 9 years ago by the Court of Appeals
for the Seventh Circuit. American Newspaper Publishers Association v. N.L.R.B.
et al., 193 F. 2d 782, cert. denied 344 U.S. 812. In a case involving very similar
conduct, the recent amendments to the Act were receiving initial consideration in the
printing trades and the court stated (at 805) :
The respondents apparently thought that union foremen were important to their
general scheme for maintaining closed shop conditions. The fact that their
threat of strike action was directed to the enforcement of the entire scheme and
that there was no special threat to secure this particular point is not important.
ITU foremen were secured as a part of their general scheme. The general
scheme was secured by threats of strike, by restraint and coercion. Consider-
ing the record as a whole we find no basis for saying, contrary to the finding
of the Trial Examiner and of the Board, that the respondents, the ITU and its
agents did not restrain and coerce the employers in the selection of their rep-
resentatives for the purposes of the adjustment of grievances in violation of § 8
(b)(1)(B) of the Act.
It is true that on September 30 Respondent did submit a list of specified sections of
the International constitution and general laws and the local laws for specific inser-
tion in the contract in lieu of the blanket clause incorporating those documents in
full. At no point, however, was it contended or has it been urged herein that other
clauses in these documents, not referred to in the September 30 proposal, would not
continue to be binding upon members of Respondents, journeymen and foremen
alike. And the specified sections, as will appear, include most of the language chal-
lenged by the publishers.
Basically, this reduces itself to persistent efforts and strike action by Respondents to
tie the foreman's loyalty and obligations to themselves rather than to his employer.
The 1947 amendments to the Act, excluding supervisors from the definition of em-
ployee, were designed to remove supervisors from the realm of compulsory collective
bargaining as previously sanctioned under the Wagner Act. See Packard Motor Car
Company v. N L.R.B., 330 U.S. 485.
The potential of the contractual language concerning foremen is not difficult to
ascertain. In N.L.R.B. v. Retail Clerks International Association, 211 F. 2d 759,
cert. denied 348 U.S. 839, a case involving another issue, the Court of Appeals for
the Ninth Circuit noted as follows:
A primary objective of § 2(11) of the Act, . .. was to assure to the em-
ployer his right to procure the loyalty and efficiency of his supervisors and man-
agers. The reports which accompanied the legislative bill which Congress
enacted into the Labor Management Relations Act of 1947, made this abun-
dantly clear. . Much emphasis was laid upon the desirability of assuring
their independence of unions of the rank-and-file.... The committees noted
the tendency to subservience by the foremen and their associations to unions of
the rank-and-file, and how as a practical matter the rank-and-file unions were
dictating what the foremen might or might not do.
The conduct of the unions here furnishes a fair illustration of the sort of
thing Congress was trying to get away from when it made these amendments
with respect to supervisors . It may fairly be said that an employer would be
sharply restricted in his opportunity to obtain loyal and efficient supervisors if
he is to be limited to selecting them from a rank-and-file union whose members,
by habit and training, may have acquired an anti-employer bias. Here the
union proposes to dictate. through its bargaining, what the supervisors may or
may not do. . Congress obviously did not contemplate that a union should
be able to exercise that much power. In view of the legislative history of the
present Act we must construe .the consent decree as having been framed with a
PORTLAND STEREOTYPERS', ETC., UNION NO. 48 795
view to avoiding just this sort of encroachment upon the rights of an employer
to select and control his supervisors and to obtain their loyalty and cooperation.
I find, in view of the foregoing considerations, that Respondents, as alleged in the
complaint, have engaged in unfair labor practices within the meaning of Section
8(b)(I)(B) of theAct5
C. Violations of Section 8(b)(2)
The complaint alleges that during the prestrike period Respondents adamantly in-
sisted upon four conditions or clauses; that Respondents struck on November 10 to
force the publishers to agree to these conditions which, taken together, constitute
an illegal closed-shop arrangement; and that this consisted an attempt to cause or did
cause the publishers to discriminate against employees within the meaning of Sec-
tion 8(a)(3) of the Act, thereby violating Section 8(b)(2).
The bargaining history is a lengthy one and the highlights thereof are set forth
below. It is readily apparent that the publishers' concern was in part economic.
That is, as to some of the clauses their concern was largely economic, although not
entirely so, and as to other clauses it was almost entirely predicated upon concern
over closed-shop conditions and possible liability under the Brown-Olds decision of
the Board. It is also apparent that Respondents, in their bargaining demands,
lumped together all these matters with its hiring plan and clearly, as reflected in the
minutes, the purported illegality of the hiring arrangements was a direct and major
issue before the parties at all times.
The Dispute on the M.A.N. Machine
This facet of the dispute on the M.A.N. machine involved The Oregonian which
had under consideration the purchase and installation of a newly devised electrically
automated plate casting machine and shaver known as the M A.N. machine; this
machine was not actually purchased by The Oregonian until January 1960 and it
was installed in April. The manufacturer of the machine had given the publisher
assurances that it could be operated by one man. This posed an immediate major
problem, because section 90 of the general laws of the International provides that
"not less than four journeyman members shall be employed to operate" an automatic
autoplate machine and shaver and this clause, together with the remaining laws as
well as the constitution of Respondent International, had been incorporated into
section 4 of the contract which expired in September 1959.
In sum, The Oregonian because of technological changes believed that it could
operate the new machine with one man and Respondents insisted that the section of
the general laws providing for four men to operate machinery in this category should
control. The issue is not reflected in Respondents' original contract proposal, except
as contained in a December 9 proposal by Respondents described below. And the
discussions, as Morrish testified, revolved around the number of men, though the
publishers did call to the attention of Respondents before the strike, and I so find,
that the general laws requirements that only members could operate this equipment
had a definite bearing in this area.
It is undisputed that the general laws of Respondent International provide that
four men must operate this type of equipment. Initially, at the meetings, and it
was the position of the publishers that the employers should determine the number
of persons it hired and paid and the techniques utilized, the publishers submitted
a full contract as a counterproposal to the union proposal. The counterproposal
was silent on the topic of manning and contained nothing like section 34 of Re-
spondents' proposal that conditions imposed by Respondents' constitution and laws
would be observed. This technique was so recognized by all concerned. More-
over, section 13 of the publishers' proposal specifically gave the foreman authority
to determine the number of men in the stereotype department.
Early in the negotiations, on or about the second meeting held on August 26,
the publishers' representatives came forward with a concession. They offered to
accept the manning provision of the International laws as to existing equipment,
provided that Respondents would permit the publishers to decide, at least initially,
how many men should be assigned to new equipment such as the M AN, machine,
the latter being the only new equipment then under consideration. The publishers
pointed out that the investment for the machine was substantial, in the neighbor-
6I shall treat hereinafter with the effect of the so-called savings clause on Respond-
ents' contract proposals
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hood of $80 ,000, and that it would not be practical to invest this sum unless there
was a saving in labor expense.
By the third meeting, that of August 31, Cotner, in behalf of Respondents, stated
that the number of men to be used on the M.A.N. machine was beyond the control
of the local and that the publishers should contact President Sampson of the Inter-
national. On September 2, Morrish telephoned Sampson at International headquar-
ters. Morrish uncontrovertedly testified and I find that he suggested to Sampson that
the problem might be solved if the International laws were so interpreted as to not
apply to the M.A.N. machine. Sampson refused, stating that the four-man require-
ment of the laws was binding in this situation.
In ensuing meetings , Respondents did not alter their position . At the Novem-
ber 3 meeting, the publishers proposed that they purchase and install the M.A.N.
machine; that it be staffed as the department foreman deemed appropriate for
optimum or efficient performance; and that if after such a test Respondents found
the staffing not to their pleasure, the publishers would negotiate the staffing and
even arbitrate the problem if desired. Respondents refused, stating that under
International laws they were unable to arbitrate any outstanding issues; article
XIII, section 7 ( a), of the International constitution does so provide , stating, "It
shall be mandatory that all local unions shall refuse to agree to any contract, con-
taining any clause, providing for the arbitration of a new contract. The International
Executive Board shall not underwrite any contract agreed to in violation of the
above requirement." The publishers then offered to guarantee that no one with
one year's experience at The Oregonian would lose his job. Cotner replied that
he could only take this up with President Sampson.
At the November 6 meeting, Cotner reported that he had spoken with Sampson
and that the International would not agree to arbitrate the manning of a new machine
not yet in production and further that the local was forbidden to negotiate in this
area because it was a matter for determination by the International . It may be
noted that at this very meeting Cotner also reported that he was instructed by
Sampson to insist upon union membership for foremen and on the so-called right
of substitution . The latter are discussed below , as well as the restrictions placed
upon foremen in the selection of personnel.
At the November 9 meeting , the day before the strike, Cotner reported that
President Sampson had decreed that there was to be no negotiation on manning
of the M.A.N. machine until it had been proven in production. At the same meet-
ing, union representatives also stated that the International would not permit the
local to establish the manning of the machine.
The strike commenced on November 10 and thereafter both parties reverted to
their original positions on this as well as other issues . At the next meeting, on
November 17, the publishers proposed that the manning of all machinery, old or
new, be decided by the foreman, conceding, however, that they would operate
present equipment with the existing number of personnel.
On December 1, Sampson arrived in Portland and participated in several meetings
thereafter. He proposed that the M.A.N. machine be operated and that the manning
be determined thereafter by negotiations. I find that this was a proposal to staff it
with four men as provided under International laws and thereafter to negotiate the
matter. On December 9, the publishers, still persisting in the view that as em-
ployers it was their province to decide how many people they should place on their
payroll, urged that foremen should designate the number of men to work. On
this date, Respondents submitted the following proposal to the publishers:
It has been mutually agreed that if anyone of the Publishers should order
the M.A.N. Wood Ultra-Matic Plate Casting Machines or any other machine
not covered by the present manning through this agreement would immedi-
ately notify the union , thereby opening negotiations for the manning of new
machines. The union further agrees that upon the installation of any new
machinery that they will operate such new equipment with x number of men
during the life of this agreement . The number of men necessary for the
permanent manning of said equipment to be mutually determined by manage-
ment and the union through negotiations.
Although the topic was much discussed thereafter , there was never a precise
clarification obtained as to what x meant . I find that, as of that date , it meant, in
the posture most favorable to Respondents, precisely what it generally means in
mathematics , viz, an unknown quantity.
On December 29, Cotner told the participants at the meeting that Respondents
had previously indicated that x meant whatever number the foreman designated.
Much discussion ensued as to whether this meant four men or not . It is apparent
PORTLAND STEREOTYPERS', ETC., UNION NO. 48 797
from the minutes that the publishers were expressly concerned here with the impact
of the International laws on the hiring practices to be followed by foremen.
The union representatives did propose that the publishers should determine the
number of men, but when this was explored , much talk and disagreement ensued
as to what had previously been agreed upon . One of the union representatives,
Flesvig , stated that "We will never agree to change manning on present machinery."
And at a meeting held in January , attended by Vice President Feeney of the Inter-
national , the latter noted that there was disagreement on the manning of the
M.A.N. machine.
Cotner, in behalf of Respondents , testified that all these discussions were based
upon the number of men only , claiming that the parties had agreed upon a union-
security clause whose validity is not challenged herein . However , this ostensibly
legal union-security clause is contained on the first page of the union proposals
under "EMPLOYMENT" and the matter that distressed the publishers was con-
tained on the seventh page under "UNION LAWS." It is in the latter section that
the parties agreed to observe the conditions imposed by the constitution and laws
of both Respondents "copies of which are attached hereto and made a part of
this agreement ." ( Emphasis supplied.)
And the minutes of the meetings also reflect much controversy over the incorpora-
tion of Respondents ' constitution and laws and the more basic claim, stressed by the
General Counsel , that these maintain control over foremen , jobs, and preference
of employment , in sum , closed-shop conditions . Moreover, as International Rep-
resentative Robinson testified, section 90 of the International laws provides for four
men on this type of machinery. He further testified that this was controlling on the
union negotiators and "we're not to deviate " therefrom . No contrary claim is made
herein.
The Substitute Laws
The complaint further alleges that by the retention of their substitute laws, Re-
spondents to the exclusion of management have been delegated exclusive control over
the hiring of substitutes . This too is lumped together with the requirement of the laws
that members in securing substitutes as replacements shall give preference to the
journeymen members of Respondents . See, for example , local constitution , section
67. These procedures , it may be noted, were not set forth in the contract which
expired in 1959, but were recognized and applied by the parties pursuant to the
blanket recognition of the laws of Respondents , as provided in the expired agree-
ment and as proposed by Respondents in the 1959 contract.
Here, as well , the publishers' concern had two facets . The first was economic in
that they were being compelled to pay overtime rates in some instances for a sixth
shift and they believed this could be avoided by a revision of the substitute plan.
The second was their concern over Board decisions in similar cases where the hiring
of a substitute or extra by the regular under circumstances where preference was
given to members of labor organizations over nonmembers had been found unlaw-
ful. This was coupled with the fact that they were expressly concerned over the
financial penalties levied under the Brown-Olds line of cases.
The use of substitutes who are not regular employees or 5-day situation holders
comes about under several circumstances . One example is where a substantial in-
crease in the size of the paper requires additional stereotype department employees.
Another , and perhaps more common , is the use of this class of personnel to cover
absences caused by sickness , vacation , or a desire to have a day off.
While there is a technical difference between the term of extra and that of sub-
stitute, it appears that they are used interchangeably . It would seem that each local
endeavors to have a pool of substitutes or extras available for these situations and
efforts are made to keep them stable and content and at a number calculated to
furnish 5 days of work or more weekly per man on a yearly average. This pool of
manpower was the same source from which all substitutes or extras were drawn, ir-
respective of the cause for their use. It also appears that the pool was a fixed group,
although from time to time , as journeymen left or came to the area, the composition
of the group would change . The meetings between the parties did touch upon other
facets of the regular or situation holder versus the extra or substitute , as is reflected
for example in a union presentation on September 30, 1959, but these do not bear
directly upon the instant issue.
During the negotiations , the publishers did express concern over the fact that regu-
lars were permitted to arrange for their own substitutes resulting in possible viola-
tions of the Act. The situation was complicated by the fact that although the com-
position of the labor pool of substitutes might change as journeymen came to town
or left, this labor pool was fixed and the regulars were bound by the laws of Re-
spondents.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As Morrish of The Oregonian uncontrovertedly testified , the publishers wanted to
preserve the foreman's right to reject a substitute , consistent with the Mountain-
Pacific line of cases, and he knew of no case where a foreman had rejected a sub-
stitute coming from a group of men which had never been passed upon or approved
by the publishers . Indeed, according to Morrish , his foreman had complained
that there were people in the pool whom he did not want to accept because of their
lack of ability to handle certain jobs but, under the existing practice , if the sub-
stitute had a journeyman 's card, the foreman was required to accept him, although
it appears that the foreman could lay him off thereafter if the substitute demonstrated
that the foreman's fears concerning his ability were well founded.
However, Respondents ' new contract proposal provided in section 1 that "It is
agreed and understood that when an employee covered by this contract is off duty for
any reason , including vacation or sick leave , his situation shall be covered by a
member of the party of the second part [Respondent Local]." And at a December
meeting, when Haines of the Journal asked International Representative Badgley if
he would hire only union men as substitutes the latter replied, "We're not going out to
get scabs ," a reference to the fact that during the strike some nonunion men had
gone to work for the publishers.
According to Haines , there were three substitutes available to the Journal "on
the Board" as extras . His testimony discloses that the Journal had been affected ad-
versely by the necessity to pay overtime rates for a sixth shift. He claimed that
when a regular laid off, the regular would receive permission from the chapel chair-
man to get one of the substitutes . His testimony also discloses that if a foreman
needed a replacement when a regular or situation holder was ill, the foreman would
tell the chapel chairman and the latter would make the selection , ostensibly accord-
ing to seniority on the Boards If none of the three substitutes were available, the
chapel chairman would procure a man from other union sources.
During the strike , on December 11, the Union submitted the following proposal:
Portland Stereotypers and Electrotyper 's Union No. 48 agrees to furnish , as many
competent stereotypers as are required to perform the stereotyping work in the
office signatory hereto, at straight time rates , except as herein otherwise provided.
If such help is not furnished by the union within a reasonable time, the employer
shall be privileged to secure such help regardless of Union affiliations and to
retain such help until such time as the Union shall furnish the required help:
provided , when outside help is employed on any day or night shift , the foreman
shall not be required to replace such outside help with Union stereotypers during
said day or night . [Emphasis supplied.]
Noting the rights given to union members thereby, Haines commented to Inter-
national Representative Badgley at a meeting at or about this time that this looked
like a closed -shop arrangement to him. Badgley replied , according to Haines,
"We've always had a closed-shop . What's wrong with it?" As is apparent, this
clause required replacement of the "outside help" by a member of Local 48 no
later than the following shift.
According to the testimony of Cotner of the union negotiating committee, he
had never known of a nonunion man being selected as a substitute and he once heard
Chapel Chairman Thompson of The Journal comment about running off a nonunion
applicant ; Thompson did not recall the incident.
Chapel Chairman Danforth of the Oregonian , where there were four substitutes
on the Board , admitted that he put the names on the Board and that he introduced
substitutes to the foreman only after the job applicant had contacted him, Danforth,
for the job. He further admitted that he asked applicants for work if they were
members, full or probationary , of Respondents . When asked if he had ever put a
nonunion man to work , he recalled only that many years ago he had put a probation-
ary member to work. And, if more extras were needed he , the chapel chairman,
would locate them. He admitted that his first efforts were to locate a man "within
the Union" who had not put in his five shifts.
The publishers' position was basically the same throughout negotiations . In their
contract proposal, they proposed that the foreman should decide whether to hire
an extra in lieu of a laid -off man , and that seniority of substitutes should date from
the time that they applied to the foreman for work. As Morrish put it, the publishers
stated at the December 1 meeting that they inserted this clause about seniority be-
cause they were concerned over "potential legal problems ." The only legal prob-
e At one point , Haines claimed that the foreman would designate the man, but his later
testimony discloses and I find that the chapel chairman made the choice . It may be that
when a particular skill is needed the foreman is permitted to designate the particular
man, but this is not clear
PORTLAND STEREOTYPERS ', ETC., UNION NO. 48 799
lems of concern at that time were those under the Act and, particularly , the fear
of the widely publicized Brown-Olds remedy in hiring hall and similar cases.
At the December 2 meeting, International President Sampson flatly rejected the
employer proposal that a foreman approve the layoff of a situation holder. At the
December 11 meeting, Haines asked if only union members would get the jobs and
Badgley replied, according to the minutes, "We are not going out to get rats." Haines
pointed out that by allowing employees to take the place of management in hiring
substitutes, the publishers might be open to charges "of unlawful discrimination."
In sum, I find that the concern of the publishers over this issue was in large
measure an economic one. I further find, in view of the foregoing, that the publishers
did have a specific concern, and so expressed it, over their liability for the com-
mission of unfair labor practices by acceding to the union proposals and thereby
granting to Respondents a degree of union security in excess of that permitted under
the Act.
Compulsory Union Membership for Foremen and Incorporation of Union
Laws and Constitution
The two remaining facets of this allegation are actually intertwined and lend
themselves to joint treatment. The complaint here attacks conduct directed to
obtaining compulsory membership for foremen coupled with union laws restricting
management powers and obligating the employers to discriminate in favor of members
of Respondent in regard to hire, tenure, and conditions of employment; much of
this has been set forth in the discussion above concerning the violation of Section
8(b)(1)(B). Also attacked is the demand for incorporation into the contract of
various union laws establishing hiring conditions which allegedly discriminate against
nonmembers of Respondents and in favor of members. This scheme is alleged to
be part of a closed-shop system.
I have previously set forth how Respondents submitted a contract proposal pro-
viding that "Union foremen" would issue orders to members employed in the stereo-
type departments; that the publishers rejected the proposal; that in October Interna-
tional Representative Robinson tentatively agreed to exclude foremen from contract
coverage; that on October 14, Robinson withdrew his agreement to the exclusion;
and that this was one of the contract demands for which Respondents struck on
November 10, 1959.
The contract which expired in September 1959 provided that "The Laws of the
International Stereotypers' and Electrotypers' Union in effect January 1, 1954, not
in conflict with this contract, shall not be subject to arbitration. The parties of the
first part hereby agree to recognize the General Laws of the International Stereo-
typers' and Electrotypers' Union of North America in effect as of January 1, 1954,
insofar as said laws are not in conflict with the provisions of this contract."
The new contract proposal in the 1959 negotiations similarly provided:
UNION LAWS
SEC. 34. The Party of the first part agrees to respect and observe the condi-
tions imposed by the local union Constitution & By-Laws and the constitution
and General Laws of the International Stereotypers' & Electrotypers' Union,
copies of which are attached hereto and made a part of this agreement, and
which do not conflict with the contract, or the Labor-Management Relations
Act. And it is further agreed that local union laws not affecting wages, hours
or working conditions, and the laws of the International Stereotypers' & Electro-
typers' Union shall not be subject to arbitration.
Both contracts provide that the foreman shall employ all personnel and direct
the work of all employees in the department.
It should be noted that the publishers expressly informed Respondents during the
negotiations that they had no objection to foremen belonging voluntarily to a labor
organization. Their objection was directed to language under which union member-
ship of foremen was compulsory and under which his discharge could be compelled
Here, as well, the publishers expressed serious concern over possible penalties under
the Brown-Olds remedy. I. S. Brown-E. F. Olds Plumbing & Heating Corporation,
115 NLRB 594. And, in view of Board policy permitting the assessment of such
penalties in full against only one of the contracting parties, needless to say, the
fear was manifestly a genuine one.7
7 See , e g, Gay Enginee7ing Corporation, 124 NLRB 451, where, in a CA, CB proceed-
ing, the General Counsel accepted a settlement from a labor organization n-hich did not
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Earlier in the negotiations , the publishers suggested that if Respondents were
desirous of having only some clauses of the laws and constitution in the contract a
desirable procedure might be to submit such a list for consideration and for in-
clusion in the contract, rather than to have an all-inclusive incorporation by ref-
erence of these documents . As a result, on September 30, Respondents submitted
to the publishers a document which stated as follows:
Ninth meeting between the Oregon Journal and Oregonian Publishing Com-
panies and the Portland Stereotypes and Electrotypers Union, Local 48.
In lieu of acceptance of the International Stereotypers and Electrotypers
Union of North America Constitution and General Laws Book as part of the
agreement, the following sections shall be inserted into the agreement under
their proper headings.
Constitution: Art. I, Sec. 2; Art. XIII, Sec. 1, Page 52 beginning with the
sentence in line nine through fourteen and including the words "Union Laws" in
line fifteen on page 53.
General Laws- Page 60, sec. 4, sec. 5; Page 61, sec. 6a; Page 64, sec. 17, sec.
19, sec. 20, sec. 21; Page 65, sec. 22, sec. 23; sec. 24; sec. 25; Page 66, sec. 25a,
sec. 26; Page 67, sec. 26a, sec. 27, sec. 27a; Page 68, sec. 29, sec. 30, sec. 31,
sec. 32, sec. 33, sec. 34; Page 70, sec. 39B sec. 39C, see. 39D, sec. 39E, sec. 39F;
Page 71, sec. 39G, sec. 39H; Page 73, sec. 43; Page 83, sec. 80, sec. 81, sec. 83;
Page 84, sec. 84, sec. 85, sec. 86; Page 85, sec. 87, sec. 88, sec. 89, sec. 90, sec.
91; Page 86, sec. 92, sec. 93, sec. 94, sec. 94a, sec. 95, sec. 96; Page 87, sec. 97;
Page 89, sec. 109; Page 90, sec. 111; Page 79, sec. 70.
Local Laws: Page 7, sec. 9, sec. 10, see. 11; Page 19, sec. 49; Page 21, sec. 56,
sec. 59; Page 23, sec. 65; Page 26, sec. 74, sec 75, sec. 76, sec. 77, sec. 78;
Page 27, sec. 81, sec. 82; Page 35, sec. 110, sec. 111, sec. 112; Page 36, sec. 113;
Page 37, sec. 117, sec. 118, sec. 120, sec. 121; Page 38, sec. 124.
The language and meaning of these sections are not to be changed in any way
other than to bring them into conformity with the intent of the Labor Laws of
the United States of America [Emphasis supplied.]
I find at this point that this was not a proposal to incorporate by reference the
various clauses of the laws. This rather called for the specific inclusion of the
language of the specified clauses in the body of the contract.
As late as November 6, Cotner reported to the publishers' representatives that
International President Sampson had decreed that the local was to insist upon union
membership for foremen. It is clear and I find that as of the date of the strike on
November 10, 1959, Respondents were striking for inclusion in a contract of the
clauses specified above, as well as for a provision requiring union membership for
foremen
After the commencement of the strike, both parties reverted to their original con-
tract proposals. I find that the strike action after November 10 constituted a demand
for Respondents for inclusion in the contract of all the language and conditions
contained in the constitution and general laws of Respondent International and the
constitution and bylaws of Respondent Local. The effect of the so-called savings
clause upon the situation is discussed below.
Turning to a consideration of most of the specified clauses in the September 30
union proposal, the record discloses the following. Article I, section 2, of the Inter-
national constitution provides that all specified work, ostensibly that of the stereotype
department, "shall be done by members of the International Union." Article XIII,
section 1, as specified, provides that a local or the International "shall not contract
with any employer allowing a section of the contract to specify that the Union party
to the contract cannot force the members, either foremen or journeymen , to live
up to the Union Laws." 8 The general laws of the International provide in section 4
that "When applicants to local unions have been favorably acted upon and become
members . . . they must obey the laws, journeymen and foremen alike." [Emphasis
supplied.]
Section 17 provides that a "foreman or assistant foreman having charge of or
supervising the work of any Union stereotype or electrotype department must be a
member in good standing of this Union." Section 19 provides that foremen may not
designate "any particular day or how many days a man shall work in one week."
provide for the Brown-Olds remedy and thereafter, rejecting a contrary recommendation
by the Trial Examiner, the Board held that the full Brown-Olds remedy was appropriate
and applied it against the employer alone
s This, of cour,e, would be applicable on its face to all union laws, not merely those
specified in the September 30 proposal
PORTLAND STEREOTYPERS', ETC., UNION NO. 48 801
Section 20 provides that "No foreman shall have the rights to discharge or disci-
pline a regular [situation holder] for putting on an incompetent `sub,' provided the
foreman has not notified the regular of the `subs' incompetency." Section 21 provides
that no foreman may prevent a paid-up journeyman "member" from employment in
any office except by consent of his local union unless the member is "delinquent in his
habits."
Section 24 provides that a foreman may not transfer a member of any local from
one shift to another "unless agreed to by the members affected, and with the consent
of the local union." Section 25 states in part that "No foreman shall discharge any
journeyman for the express purpose of reorganizing his force."
Section 39 (and alphabetical subsections thereafter) is a comprehensive plan cov-
ering apprentices whereby local unions admit to membership only one-sixth of the
apprentices registered in any 1 year; locals are forbidden to admit into membership
any apprentice who has not served 6 years of apprenticeship "under the control of a
local union"; apprentices are required to apply for membership in the local in whose
jurisdiction the apprenticeship is completed; and chapel chairman are instructed to
"report for registration" with the secretary of the local within 30 days of employ-
ment all apprentices working in the chapel. In addition, the local secretary is re-
quired to register the apprentices with the secretary-treasurer of the International.
It is to be noted, as appears below, that the constitution of Respondent Local requires
that applicants for journeyman membership must have served an apprenticeship
as required by the foregoing sections.
Section 84 of the general laws of the International provides that "None but
journeymen members of this International Union shall be employed to operate"
various specified types of equipment found in the stereotype department. Section
85 provides that "not less than three journeymen members of this International
Union shall be employed to operate" a specified machine and Section 90 provides
that "not less than four journeymen members" shall operate an automatic auto
plate and shaver; the latter was the equipment classification within which the M.A.N.
machine fell. Section 91 similarly restricts the operation of a double automatic and
shaver to "not less than eight journeymen members."
Section 92 provides that "Members of this International Union" shall handle and
deliver all plates produced on the varied specified types of equipment. Section 93
and 94 provides that: "None but journeymen members of this International Union
shall be employed" to operate other specified machines. Section 94a provides that
"Members of this International Union" shall handle certain products.
Section 96, after urging "the entire membership" to become familiar with all
machinery, provides that "foremen and the membership in general are expected to
cooperate. It is particularly enjoined that no member shall be discriminated against."
Section 109 provides that "Members of local unions may be disciplined for violation
of International and local union laws." [Emphasis supplied.]
Turning to the constitution and bylaws of Respondent Local, the September 30 list
contains, in part, the following sections for specific inclusion in the contract. In the
constitution, article 2, section 9, provides that candidates for journeymen membership
must have served an apprenticeship as required by the general laws of the Interna-
tional Article 10, section 65, provides that there shall be a foreman in each stereo-
type office under the jurisdiction of Respondent Local, and section 74 of this article
provides that any foreman who disciplines, discharges or harasses "in any manner a
member of this Union" for action taken in Union matters shall be fined or expelled.
[Emphasis supplied.]
Article XV, section 120, of the bylaws provides that all work of specified types shall
be done by "members of this Union." Section 121 provides that the discharging of a
chapel chairman shall be punishable. Although this also refers to the chairman being
discharged for "enforcing the laws," this is presumably and inevitably a reference to
discipline or punishment of the member foreman who carries out the discipline.
Of course, after the commencement of the strike, the parties reverted to their
original demands which consisted of a demand by Respondents for an inclusion by
reference of all these documents in full. There were other clauses in all these
documents which also reveal the precise nature of the contractual hiring arrange-
ments sought by Respondents. Only some are set forth, as these adequately give
the true picture.
Thus, article I of the International constitution provides that all work of certain
described types shall be done by "members of the International Union." Article XIII,
section 1, forbids a local union to sign a contract "unless such contract is in accord-
ance with International Law and has been approved by the International President."
And section 5 of the same article directs International officers not to underwrite any
contract if any portion thereof is in conflict with International law.
649856-63-vol. 137-52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The general laws of the International provide that every member upon admission
shall swear to "use every endeavor to procure employment for members" of the
International "in preference to others" and section 18 states that any member who
employs a nonunion man in preference to a unionman shall be fined, suspended or
expelled. [Emphasis supplied.]
Turning to the constitution of the local,9 article I, section 6, provides for the pun-
ishment of any members who do not comply with International law. Article III,
section 13, requires every member, upon admission, to promise to procure employ-
ment for members of the International in preference to others. Article IX, section
60, provides that the chapel chairman "shall require a permit or working card to be
held by every journeyman before commencing work in the chapel." Article X,
section 66, provides that any foreman or assistant foreman "must be a member in
good standing of this Union." Section 67 states that any member who employs a
nonunion man in preference to a unionman shall be fined, suspended, or expelled.
And Article XI of the general laws, section 94, provides that "only journeymen
members and apprentices shall work in any way" on stereotyping or similar processes.
[Emphasis supplied.]
In addition to the foregoing provisions from the union documents, on the very face
of Respondents' proposed contract, section 1 provides that "a member of Respondent
Local shall be appointed as a substitute when a situation-holder is off duty." And
section 7 provides that "only Union foreman [sic] or assistants" shall give orders
to members employed in the stereotype department. In addition, section 27 states
that all autoplate machines shall be operated strictly in accordance with the machine
laws of Respondent International. (See general laws, section 84, 85, 90, and 91,
supra.)
As is readily apparent, the local and International laws contain a flat fiat that the
local could not change or modify any "International Laws" and the minutes of the
negotiating meetings contain many references to this restriction by negotiators for
Respondents.
Consistent with the cited sections providing for preference for union members, the
record in the instant case discloses that under the past practices between the parties,
no nonunion persons were hired, and, as late as December 11, 1959, when Respond-
ents proposed that the publishers might hire stereotypers, "regardless of Union
affiliation" should Respondents not furnish them upon request, the same paragraph
further provided that the "foremen shall not be required to replace such outside help
with Union stereotypers during said day or night."
Stated more realistically, this provides that the outside or nonunionman would
have to be replaced on the following shift by a member of Respondent Local. In-
deed. the controlling role of the International laws is shown by the fact that during
the October meetings an issue arose concerning the use of apprentices in the last
year of their apprenticeship. International Representative Robinson proceeded to
visit the stereotype department of The Oregonian to ascertain the existing practice.
He returned to the meeting and announced that the men were being used contrary
to International laws and that this practice had to cease. These were the laws in-
corporated by reference in the previous expired contract.
Analysis and Conclusions
One can hardly doubt from the foregoing pattern of events that Respondents were
adamantly insisting that the publishers comply with International and local laws.
After much talk, Respondents came up with a proposal on September 30 consisting
of a list of laws to be included in the body of the contract. Theoretically this list
had been arrived at by eliminating any possible unlawful language. Yet it contains,
as noted, most of the provisions of the International and local laws as well as refer-
ences to the International constitution, all of which establish an elaborate closed-shop
hiring system.
Even its purported saving clause notes only that "The language and meaning of
these sections are not to be changed in any other way than to bring them into con-
formity with the intent of the Labor Laws of the United States of America."
The simple fact is that the laws referred to theiein were not to be changed; indeed,
they could not be changed because the local representatives well knew and the pub-
lishers were on notice that the International constitution which was binding upon
the local did not permit it to change or modify any International laws. In fact,
the local was enjoined from engaging in arbitration concerning these laws Any
9 As is apparent, many of these clauses are identical with those in the International
constitution and laws
PORTLAND STEREOTYPERS', ETC., UNION NO. 48 803
agreement by the local purporting to do so would have had no standing because the
International was forbidden to approve it
As noted, there is not an iota of evidence that any one other than a member or a
probationary member of Respondents ever worked in the stereotype departments of
the publishers . And when the various laws are considered in the light of actual prac-
tice, one can only conclude that Respondents were determined to exert control over
the hiring practices of the publishers and to maintain this system under which un-
lawful preferential treatment was guaranteed to their members . This is reflected
precisely in the statement by International Representative Badgeley during the negoti-
ations that "You've had the closed shop for years . what's wrong with it?"; the
publishers had been under contract with Respondents for many years 10
The insistence of Respondents upon these provisions warrants a finding that the
Board's long -standing view on savings clauses has been a sound one . A contrary
view would ignore the fact that the so-called expurgated list for which Respondents
struck contained article XIII of the International constitution forbidding local unions
to sign any contract providing that the Union could not force journeymen or foremen
members to live up to union laws.
The Board has regularly held in closely similar cases that contract demands such
as those found herein are violative of Section 8(b) (2) of the Act. International
Typographical Union, et al. (Haverhill Gazette), 123 NLRB 806, enfd. 278 F. 2d 6
(C.A. 1); International Typographical Union, 86 NLRB 1041 and 87 NLRB 1418,
enfd. in part American Newspaper Publishers Association v. N.L.R.B., et al., 193
F. 2d 782 ( C.A. 7); and Hillbro Newspaper Printing Company , Division of Hearst
Publishing Company, Inc., 127 NLRB 591.
In these cases , the Board has consistently held that a general savings clause did
not purge a contract from otherwise unlawful provisions . It perforce follows that
strike activity for such clauses is equally unlawful. This, of course , ties in with the
rule of long standing in related cases that the Board will not honor a savings clause
which does not specify precisely which provisions in a contract are not to be opera-
tive. Red Star Express Lines of Auburn , Inc., v. N.L.R .B. 196 F. 2d 78 (C.A. 2).
N.L.R.B. v. Gottfried Baking Co., Inc., et al., 210 F. 2d 772 (C.A. 2); N.L.R.B. v.
Gaynor News Company, Inc., 197 F. 2d 719 (C.A. 2) affd. 347 U.S. 17; N.L.R.B
v. F. H. McGraw and Company, 99 NLRB 695, enfd. 206 F. 2d 635 (C.A. 6);
N L R.B. v. Broderick Wood Products Company, 261 F. 2d 548 (C.A. 10); and
International Typographical Union , AFL-CIO (Haverhill Gazette ) v. N.L.R.B. 278
F. 2d 6 (C A. 1).
I am aware that there are two expressions from courts of appeals to the contrary,
in Honolulu Star-Bulletin Ltd. (Honolulu Typographical Union #37, Intervenor)
v. N.L.R.B. 274 F. 2d 567 (C.A.D.C.), and N.L.R.B. v. News Syndicate Company,
Inc. and New York Mailers' Union No. 6, International Typographical Union, AFL-
CIO, 279 F. 2d 323 (C.A. 2 ). Of course , Board policy is binding upon me and
will be followed herein . Moreover , it can be readily demonstrated that the facts in
the instant case are distinguishable from and indeed stronger than those in the last
cited cases.
(1) The view of the two contrary decisions is that the savings clause purges the
illegality of the union laws incorporated by reference and is to be distinguished from
a situation where an identical savings clause purports to purge the illegality from a
,contract in which the illegal provisions are included on the face of the contract.
In the latter situation , it is recognized that the savings clause accomplishes what it
purports to do.
In terms of contract law, this is a distinction without a difference, because no
meaningful distinction can be made between the two situations . I believe it to be a
"It is true that Respondents did agree to a clause proposed by the publishers on
October 12 that membership in a labor oganization would not be a condition of employ-
ment. However , on November 3, prior to the strike , Respondents still adamantly In-
sisted upon physical inclusion in the contract of the unlawful provisions of the con-
stitution and laws.
Furthermore, Respondents were insisting throughout the negotiations upon section 1 of
the proposed contract providing that situations of absent employees were to be covered
only by "a member" of Respondent local. Bearing in mind that upon the commencement
of the strike both parties reverted to their original proposals , on the posture most favor-
able to Respondents , it appears only that for a limited period respondents were willing
to accept a clause that membership in it labor organization would not be a condition of
employment . This was a period from October 12 through November 17, the first meeting
after the strike. I find , therefore , that in any event Respondents did not accept this
provision prior to October 12 and that the strike objectives subsequent to November 17
.consisted of all four objectives treated herein.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fair statement that it is elementary contract law that incorporation by reference of
clauses which are in existence and properly identified has precisely the same legal
effect as if the clauses were set forth explicitly in the body of the contract.
All authorities seem to agree that the test in the present situation is whether a
natural and foreseeable consequence of the contract language is to encourage union
membership. One court has stated, "An employee cannot be expected to predict the
validity or invalidity of particular clauses in the contract, and will feel compelled to
join the Union where a Union-Security clause of questionable validity exists, if only
as a hedging device against a possible future upholding of the clause." N.L.R.B. v.
Gaynor News Company, supra.
The Court of Appeals for the First Circuit has recognized that employees reading
the limitation in the incorporating clause would have equal reason in either situation
to believe that they could refrain from union membership only at the risk of their
jobs. It stated, "We perceive no reason why the coercive effect of the illegal clauses
would be lessened if, as in this case, they are incorporated into the contract, rather
than written into the contract itself." International Typographical Union v. N.L.R.B.,
supra.
It seems to me that the predicament of the employee or applicant who is presum-
ably a layman untutored in labor relations is highlighted by the very divergencies of
these opinions. He is called upon to evaluate the phrase, "which do not conflict with
the contract" or the Labor Management Relations Act. Firstly, this presupposes
that he is qualified, in his own opinion if not by a State board of bar examiners, to
give himself a legal interpretation of contract law in an area where the courts are
in conflict. Secondly and more significantly, assuming the hurdle of legal qualifica-
tions can be cleared, which interpretation of the Act is he to follow? Is it to be that
of the Board; that of the Court of Appeals for the First Circuit and other circuits
as expressed in the International Typographical Union case, supra; or that of the
Court of Appeals for the District of Columbia in the Honolulu Star Bulletin decision?
(2) Even if the last view were followed, the instant case is distinguishable because
that court recognized that illegal provisions on the face of the contract are not purged
of illegality by a general savings clause. And here Respondents on September 30
asked to include vebatim within the four corners of the contract the unlawful con-
stitution and laws clauses enumerated in their proposal. Moreover, aside from the
constitution and laws, the contract proposal itself contains on its face several unlawful
clauses in relation to the procurement of substitutes and the issuance of orders by
union foremen. I do not believe that the rationale of Honolulu goes so far as to ac-
cept this; nor do I see how it could in logic
(3) The instant facts are further distinguishable because in both contrary cases
the courts relied on the fact that a number of nonunion men were on the payroll
of the employers. Here such is not the case. Bearing in mind the role played by
the chapel chairman in hiring personnel; the statements that the union negotiators
could not depart from International laws; and the union proposal as late as December
11 that any nonunion employees hired had to be replaced by union members no later
than the next shift, the conclusion is inescapable that Respondents intended the con-
tinuation of the discriminatory practices required by the laws and their explicit in-
clusion in the contract proper.
(4) As noted, it is manifest that the savings clause was not intended to affect other
clauses already on the face of the contract. The Court of Appeals for the Fifth
Circuit has recently .pointed out that "when the Constitution or By-Laws of the Inter-
national union requires Member-foremen to hire only Union men, this is evidence
in itself of a discriminatory hiring practice. Here, in addition, there was testimony
that the Union made it impossible for the Company to hire non-Unon members.
Such conduct on.the part of the Union violated Section 8(b) (2) and (1) (a) of the
Act." N.L.R.B. v. Local Union No. 450, International Union of Operating Engineers,
AFL-CIO (Tellepsen Const. Co.), 281 F. 2d 313 (C.A. 5).
I also believe that the language of the Supreme Court in The Radio Officers'
Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Com-
pany) v. N.L.R.B., 347 U.S. 17, 40-42 is applicable here. The Court stated: "Thus
Sections 8(a)(3) and 8(b)(2) were designed to allow employees to freely exercise
their right to join unions, be good, bad or indifferent members, or abstain from join-
ing any union without imperiling their livelihood . . . This legislative history
clearly indicates that Congress intended to prevent utilization of union security
agreements for any purpose other than to compel payments of union dues and
fees ... No other discrimination aimed at encouraging employees to join, retain
membership, or stay in good standing in a union is condoned." [Emphasis supplied.]
It logically follows that an agreement which conditions employment upon com-
pliance with unlawful union rules and regulations runs contrary to the Supreme
PORTLAND STEREOTYPERS, ETC., UNION NO. 48 805
Court's summary of congressional purpose. As stated by the Court of Appeals
for the Tenth Circuit, "The rule is clear: When the insulation of the Act between
the rights of employment and organization is pierced by the employer or union for
the enforcement of union rules, valid union provisos excepted, no direct evidence
of specific intent to encourage membership in a labor organization is required. The
natural consequence of such on-the-job discrimination is to strengthen the union
control.
Although .the union may prescribe reasonable rules for membership and its reten-
tion, the Act prohibits the enforcement of such rules by the use of employment as a
tool of discrimination.. . " N.L.R.B. v. Brotherhood of Painters, Decorators &
Paperhangers of America, etc. (Spoon Tile Co.), 242 F. 2d 477 (C.A. 10).
I find, in view of all the foregoing circumstances, that by insisting upon and striking
for contract provisions giving them control over the manning of machines and the
hiring of substitute employees when coupled with compulsory union membership for
foremen and the incorporation into the contract of the constitution and bylaws of
Respondent local and the constitution and the general laws of Respondent Interna-
tional containing the various discriminatory features set forth herein, Respondents
have caused or attempted to cause the publishers to discriminate against employees in
violation of Section 8(a)(3) of the Act and have thereby engaged in unfair labor
practices within the meaning of Section 8(b)(2) of the Act. See The Radio
Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship
Company) v. N.L.R.B., supra; N.L.R.B. v. Puerto Rico Steamship Association, Bull
Insular Line, et al. v. N.L.R.B., 281 F. 2d 615 (C.A.D.C.); and N.L.R.B. v. National
Maritime Union of America, et al. (The Texas Company), 175 F. 2d 686 (C.A. 2).
D. Violations of Section 8(b)(3)
Appropriate Unit and Majority Representation Therein
The complaint alleges, Respondents' answer admits, and I find that all employees of
the stereotype departments of the Oregon Daily Journal and The Oregonian in
Portland, Oregon, excluding foremen and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act. The complaint further alleges, Respondents' answer admits,
and I find that at all times material herein Respondent Local has been the exclusive
representative of the aforesaid employees for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
The Issue; Analysis
The complaint alleges that by insisting upon and striking for the four conditions
or proposals treated hereinabove, Respondents have engaged in unfair labor practices
within the meaning of Section 8(b) (3) of the Act.
It also alleges a similar violation in that Respondents, after the commencement
of the strike, allegedly insisted upon additional provisions as a condition to the execu-
tion of a contract, viz (4) all employees (stereotypers and others) who had respected
Respondents' picket line were to be rehired and (2) contracts signed by all other
labor organizations with the publishers were to be given the same expiration date
as any that might be agreed upon by the parties.
The facts as to the four prestrike and strike conditions are already substantially
reflected hereinabove. As to the two added ones, the record discloses as follows.
The first meeting after the commencement of the strike took place on November 17,
1959. Various other crafts had observed the picket lines and although the record
is vague in this respect, there had been some replacements of striking stereotypers
as well as members of other crafts.
The employer representative announced at this meeting that they were reverting
to their original proposals. Cotner, in behalf of Respondents, then announced that
they were doing likewise. According to Morrish, and I so find, Cotner stated that
because of the strike, Respondents were adding some new proposals, viz, that as a
condition of settling the strike by Respondents, all employees on strike or who had
been fired were to be restored to their jobs. Another union representative disclosed
that this had reference to certain drivers represented by the Teamsters who had been
terminated at one of the papers.
Cotner stated that the publishers had to "re-hire all the strikers to their original
jobs as a condition of settlement for the Stereotypers" and that the publishers "have
to arrive at a settlement with everyone whose contracts have expired or are about
to expire, so that when we come back to work, it will be on the basis . . . of all
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crafts or none." The union representatives also proposed that there be common
expiration dates for all these contracts."
The testimony of Haines was in substantial agreement. As he put it, the publishers
were told that they "would have to settle or otherwise agree on the terms under which
all the other crafts would return to work, or none of them would . . . anyone who
had been fired . would have to be reinstated."
The minutes of the November 17 meeting are in substantial agreement as they
attribute to Cotner a statement that "as you know, all the other crafts are out at this
time . the other crafts are quite involved in this thing. We will not return to work
until all these contracts are signed." At the November 24 meeting Union Representa-
tive McDonald, according to the minutes, proposed, "Let's have all contracts expire
at once." Haines protested, pointing out that this was well nigh impossible as there
were seventeen crafts in the plants.
I have heretofore found that Respondents were insisting upon and striking for
their proposals on manning and the use of substitutes and that these proposals were
intertwined not only with their conduct directed to union membership for foremen
but also to the incorporation of the various clauses in the International constitution
and general laws and in the local constitution and bylaws.
It appears to me that the language used by the Court of Appeals for the First
Circuit in International Typographical Union v. N.L.R.B., supra, is appropriate here.
The Court stated: "And we think that in holding out for the [foreman] clause the
unions also refused to bargain collectively in violation of Section 8(b)(3) . . . to
hold that good faith is a defense to the charge of refusal to bargain when the contract
provision insisted upon is illegal per se is to put a premium on . . blind in-
transigency. Thus, as to this clause, the unions are not saved by the finding that they
negotiated with the genuine desire to arrive at a contract. . . . bargaining demands
for, and a strike aimed at forcing an employer to accede to, the inclusion of an
obviously illegal provision in a collective bargaining contract justify enforcement of
a cease and desist order . .
In discussing the incorporation of the general laws of the I.T.U., the labor organiza-
tion there involved, the Court stated:
The question now arises whether a union is to be found guilty of unfair labor
practices when it bargains for and strikes to coerce an employer to consent to
the inclusion in a collective bargaining agreement of clauses of honestly dis-
putable validity at the time of the union action. We think this question must be
answered in the affirmative . . . this court pointed out in a comparable situa-
tion in N.L.R B. v. Local 404, etc., 1 Cir., 1953, 205 F. 2d 99, . . . the unions
were acting at their peril, that is to say, at the risk of an enforcement order,
when they sought to compel the employers to submit to their demand for in-
clusion of the ITU general laws in the collective bargaining contracts under
negotiation.
It is true that the objections by the publishers to Respondents' position on manning
and the use of substitutes were in large part predicated upon economic grounds.
However, these union demands were intertwined with simultaneous demands concern-
ing foremen and the incorporation of the union laws, and the publishers specifically
challenged all four demands on these grounds. I find, therefore, under the circum-
stances of this case, that Respondents' conduct in all four areas must be considered
together and so evaluated.
As demonstrated, Respondents on November 17 and 24 did add demands upon
the publishers concerning the reinstatement and tenure of employees in a unit or
units other than that represented by Respondent Local. A demand was also made
that the contracts with all other crafts be signed by the publishers and that they have
a common expiration date before members of Respondents returned to work.
Although the evidence is sketchy in this area, it does not disclose that Respondents
withdrew the proposals.
As the General Counsel contends, these two poststrike conditions involved demands
for contract clauses on matters involving other units of employees and did not per-
tain to the bargaining unit represented by Respondent Local. Hence, Respondents
were demanding that the employers bargain over employees whom they did not
represent and in respect to whom there was no statutory duty to bargain Charles T
Douds, Reg Dir. v. International Longshoremen's Association, Independent, et al.
(New York Shipping Assn.), 241 F. 2d 278 (C.A. 2).
"The record does not disclose the precise contractual picture involving the other
crafts. It appears that a substantial number of the other crafts did not cross the picket
line
PORTLAND STEREOTYPERS', ETC., UNION NO. 48 807
In Local 164, (International) Brotherhood of Painters et al. (A. D. Cheatham
Painting Company), 126 NLRB 997, the Board pointed out that "a union unlawfully
refused to bargain as a matter of law by insisting that any agreement reached cover
employees in a unit different from that for which the union was the statutory repre-
sentative. . In view of the fact that the subject matter of the proposed Section
.. . relates to the conditions of employment of employees outside the unit repre-
sented by Local 164 and is therefore not a mandatory subject of bargaining," this con-
stituted conduct violative of Section 8(b) (3).
It is true that N.L.R.B. v. Insurance Agents' International Union, AFL-CIO
(Prudential Ins. Co.), 361 U.S. 477, holds that the concurrent use of broad economic
weapons, including unprotected concerted activities, to compel one party to accede to
the otherwise lawful demands of the other party, does not per se constitute evidence
of bad-faith collective bargaining. The Supreme Court made no reference therein
to its line of refusal to bargain cases based upon insistence on illegal conditions.
The instant case, therefore, falls within the line of cases holding that insistence upon
illegal provisions as a condition to bargain constitutes a refusal to bargain in good
faith. N L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342.
Needless to say, Respondent Local and Respondent International were equally in-
volved in the present case. International officers to the top level participated in the
negotiations and indeed the International sanctioned the strike. And any contract
obtained, as noted, required International approval. Under the circumstances pres-
ent herein, the International as well as the local is chargeable wherever the unfair
labor practices have been found. International Typographical Union v. N.L.R.B.,
supra; American Newspaper Publishers Association v. N.L.R.B., supra; Millwrights'
Local 2232, United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
et al. (Farnsworth & Chambers, Inc.), 122 NLRB 300; and International Brother-
hood of Electrical Workers, et al. (Texlite, Inc.), 119 NLRB 1792, enfd. 266 F. 2d
349(C.A.5).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connec-
tion with the operations of the publishers described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices , I shall
recommend that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Portland Stereotypers' and Electrotypers ' Union No 48 and International
Stereotypers' and Electrotypers ' Union of North America, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of the Act.
2. Oregonian Publishing Co . and Journal Publishing Co. are employers within
the meaning of Section 2(2) of the Act.
3. All employees of the stereotype departments of Oregonian Publishing Co. and
Journal Publishing Co., excluding foremen and supervisors , constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
4. Portland Stereotypers' and Electrotypers ' Union No . 48 and International
Stereotvpers ' and Electrotypers ' Union of North America . AFL-CIO , at all times
material herein have been and now are the exclusive representatives of the employees
in the aforesaid appropriate unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing to bargain collectively with Oregonian Publishing Co. and Journal
Publishing Co ., Respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(b) (3) of the Act.
6. By demanding contract clauses and by engaging in a strike for same in order
to cause or attempt to cause Oregonian Publishing Co. and Journal Publishing Co. to
discriminate against employees in violation of Section 8(a)(3) of the Act, Respond-
ents have engaged in unfair labor practices within the meaning of Section 8(b)(2)
of the Act.
Sob DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. By demanding contract clauses and by engaging in a strike for same to force
Oregonian Publishing Co. and Journal Publishing Co. to hire only foremen who are
union members , Respondents have restrained and coerced the above-named em-
ployers in the selection of representatives for the adjustment of grievances , thereby
engaging in unfair labor practices within the meaning of Section 8(b) (1) (B) of the
Act.
8. 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.]
Teamsters, Chauffeurs , Warehousemen and Helpers , Local 901,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America [Valencia Baxt Express,
Inc.] and Seafarers International Union of North America,
Atlantic, Gulf , Lakes and Inland Waters District , P.R. Divi-
sion , AFL-CIO . Case No. 24-CC-76. June 05, 1962
DECISION AND ORDER
On February 20, 1962, Trial Examiner Benjamin Lipton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report, incorporating therein its brief to the Trial
Examiner.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommended
order of the Trial Examiner.'
ORDER
The Board hereby adopts the Recommended Order of the Trial
Examiner.
While approving the Trial Examiner 's finding of the continued validity of the certifica-
tion at the time of the picketing here, in reaching our decision we are not required to, and
do not, rely on his more broadly stated principle that only changed conditions which are
reflected by a later ruling of the Board may impair the continuing validity of a certification.
137 NLRB No. 95.