Publication Corp.

National Labor Relations Board - Board Decisions

Sep 24, 1959

124 N.L.R.B. 1027 (N.L.R.B. 1959)

ALCO-GRAVURE, DIVISION OF PUBLICATION CORPORATION 1027
Board's ballot, and that the button contained no campaign propa-
ganda and added nothing to the Petitioner's position which the em-
ployees did not already know. The Employer contends that the Allied
Electric rule requires the election to be set aside. We agree. Under
that rule, there can be no reproduction of any document purporting
to be a copy of the Board's official ballot, other than one completely
unaltered in form and content and clearly marked sample on its face.
The pinning of the JAM buttons to the "yes" square of the sample
ballots herein was an indication of voting intent. We find therefore,
that the sample official ballot was altered in the instant case. Con-
trary to the Regional Director's rationale, the application of the
Allied Electric rule is not dependent on whether the employees were
in fact misled by the altered ballot.' We shall therefore set aside the
election and direct that a new election be conducted.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
6 The De Vilbtiss Company, 114 NLRB 945, and cases cited therein
Alco-Gravure , Division of Publication Corporation and Memphis
Mailers Local No. 19 , International Mailers Union , Ind. and
Memphis Plate Handlers and Paper Handlers Union No. 23,
Party to the Contract. Case No. 312-CA--678. September 24,
1959
DECISION AND ORDER
Upon a charge duly filed and served on May 23, 1958, by Memphis
Mailers Local No. 19, International Mailers Union, Ind., herein called
Local No. 19, the General Counsel for the National Labor Relations
Board, herein called the General Counsel, by the Regional Director for
the Fifteenth Region, issued a complaint, dated October 31, 1958,
against Alco-Gravure, Division of Publication Corporation, herein
called the Respondent, alleging that the Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and (2) of the National Labor Rela-
tions Act, as amended. Copies of the complaint, the charge, and
notice of hearing were duly served upon the Respondent, the Charging
Party, and Memphis Plate Handlers and Paper Handlers Union No.
23, herein called Local 23, as party to a contract.
With respect to the unfair labor practices, the complaint alleges in
substance that, on or about July 23, 1957, the Respondent and Local
23 entered into an exclusive recognition collective-bargaining agree-
ment for all of the Respondent's employees at its Memphis plant and
124 NLRB No. 141.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter entered into an amendment to the aforesaid agreement, at
which time and place the Respondent had no employees . The com-
plaint further alleges that , since on or about November 27, 1957, the
Respondent rendered unlawful assistance to Local No . 23 (1) by main-
taining in effect the aforesaid agreement of July 23, 1957, and con-
tinuing to recognize Local 23 as the exclusive representative for
Memphis employees , and (2 ) by, on or about June 23, 1958 , entering
into the aforesaid amendment and providing therein that the original
exclusive recognition agreement be construed as "a members only con-
tract."
The Respondent filed a motion to dismiss and an answer , in sub-
stance denying the commission of the unfair labor practices and assert-
ing certain matters in defense.'
In January 1959, all parties entered into a stipulation setting forth
an agreed statement of facts, including two exhibits . The stipulation
provides that ( 1) all parties waive their right to a hearing before a
Trial Examiner , the making of findings of fact and conclusions of law
by a Trial Examiner, and to the issuance of an Intermediate Report
and Recommended Order; (2) the stipulation , together with the
charge, complaint , and notice of hearing shall constitute the entire
record in the case; and ( 3) the parties may file briefs.
By an order issued on January 28 , 1959, the Board approved the
aforesaid stipulation , made it a part of the record herein , and trans-
ferred the matter to, and continued it before , the Board . Thereafter,
the General Counsel, Local 23, and the Respondent filed briefs.
Upon the basis of the aforesaid stipulation , and the entire record in
the case, including the charge , the complaint , the motion to dismiss,
and the answer and briefs , the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY INVOLVED
The Respondent, a New York corporation having its principal of-
fice and place of business in New York City and plants in New Jersey,.
Illinois, California, Maryland, and Tennessee, is engaged in the busi-
ness of gravure printing. Only the Respondent's plant at Memphis,
Tennessee, is directly involved in this proceeding. During 1957, a
' The Respondent contends , in substance , that there is a fatal variance between the
complaint and the charge in that the charge is based upon the execution of the 1957 agree-
ment, which antedated the 6-month period of limitations, whereas the complaint alleges
that the Respondent committed unfair labor practices by maintaining that agreement in
force and by executing an amendment thereto , which occurred after the filing of the
charge . We find no merit in this contention . Section 10 ( b) of the Act does not prohibit
inclusion in the complaint of acts similar to or related to the conduct alleged in the
charge. As the charge referred to part of a continuing pattern of conduct, there is no
reason why the Board cannot allege specific acts which are part of that pattern although
they occurred after the charge was filed . See, for example, N.L.R.B. v. Kohler Co., 220
F. 2d 3 (C.A. 7) ; N.L.R.B. Y. Anchor Rome Mills, 228 F. 2d 775 (C.A. 5) ; N.L.R.B. v.
Pant Milling Company, 358 U.S. 918.
ALCO-GRAVURE, DIVISION OF PUBLICATION CORPORATION 1029
representative period, the Respondent sold and shipped from each of
its plants in New Jersey, Illinois, California, and Maryland, finished
products valued at more than $50,000 directly to customers located out-
side those States.
We find that the Respondent is, and at all times material herein
has been, engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the policies of the Act to
assert jurisdiction in this case.
II. THE LABOR ORGANIZATIONS INVOLVED
Memphis Mailers Local No. 19, International Mailers Union, Ind.,
and Memphis Plate Handlers and Paper Handlers Union No. 23 are
labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In substance, the complaint in this case rests on the fact that the
Respondent maintained unlawful agreements with Local 23 which
tended to deprive employees of their statutory freedom to choose or
reject any union and tended to coerce them into accepting Local 23 as
their bargaining agent. Basically, the Respondent's defense is that
such agreements were "members only" contracts, which are permis-
sible under the law. The facts are not in issue.
As of July 23,1957, the Respondent, which operated printing plants
in Chicago, Illinois, Los Angeles, California, Baltimore, Maryland,
and Hoboken, New Jersey, contemplated building a new printing plant
at a site in Memphis, Tennessee. On that date, the Respondent and
Local 23 entered into a collective-bargaining agreement, to become
effective on March 15, 1958, and to continue in effect through March
14, 1961, which purported to recognize Local 23 as "the collective-
bargaining agent for members covered by this contract and employed
in the Employer's plant in Memphis, Tennessee," and which contained
preferential hiring provisions.2 On May 23, 1958, Local No. 19 filed its
charge alleging that the Respondent violated Section 8(a) (1) and (2)
by "negotiating and executing" the aforesaid collective-bargaining
contract. Thereafter, on June 23, 1958, the Respondent and Local 23
executed an amendment to the. 1957 contract which purported to
drop the preferential hiring provisions of the 1957 contract and to
designate that contract as a "members only contract." At the time of
the execution of the 1957 contract and at the time of the execution of
the amendment thereto in June 1958, the Respondent had no em-
ployees at its Memphis plant. At the time of the execution of the
stipulation referred to above, the Memphis plant was not yet in opera-
tion but the Respondent had 16 persons, including supervisory per-
3 The Respondent did not let its contract for the construction of the Memphis plant
until the fall of 1957.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonnel, in its employ at the Memphis plant, and expected "its Memphis
plant to be in full operation" and to have a total complement of 90
employees by late February 1959.
More specifically, the 1957 agreement provide, in section 2 thereof,
that :
It is understood that the jurisdiction of this Agreement extends
over all work in connection with the handling of paper for the
Employer on the Employer's premises; loading, unloading, re-
ceiving, weighing, checking and stripping of all incoming paper,
handling and bundling of all printed and unprinted waste; han-
dling, stripping, and shipping of cores; operating core winding
unwinding machines, operating elevators, automatic and manual
hoist, trucks, and all machines used for the handling of roll paper
as well as printed and unprinted waste; flying all printed prod-
ucts produced by the presses and maintaining cleanliness and
order in areas adjacent to and surrounding the presses, skidding
or bundling printed products, strapping skids and delivery of
same to trucks and into Railroad cars ; such janitor, security and
general maintenance service as the Employer shall require in and
around the premises, and receiving, shipping and handling of all
incoming skids and materials required for printing. within the
Employer's plant.
Section 2 of the contract also provided :
The Union agrees to supply the necessary competent members
at straight time, if available, in order to operate the Employer's
plant in accordance with the stipulations of this Agreement. In
case of its inability to do so, the Employer shall have the right to
employ such help as may be required. However, the above not-
withstanding, it shall be the Employer's right to select and employ
the members covered by this Agreement who shall be engaged
as maintenance personnel.
Sections 4, 5, 6, 8, and 9 of the same contract, relating to seniority,.
working hours, overtime, holidays, and wages, respectively, contain
provisions which apply to, or affect, all employees, be they Local 23
members or not. For example, section 4 provides that, in the event.
of a reduction in the size of the work force, "the last man to be em-
ployed within a department shall be the first man to be laid off" . ...
and that, in the event of a subsequent increase in the size of the work-
ing force, "the men shall be re-employed in the reverse order." A
further example is found in section 3 insofar as it provides that "the
pressroom superintendent, foreman or his delegated representative,
shall supervise and designate all work by Union paper handlers who,
are assigned to work on any press. Other work assignments for paper
ALCO-GRAVURE, DIVISION OF PUBLICATION CORPORATION 1031
handlers shall be through the paper handler foreman of the Union
when such a foreman is required by the Employer ...."
In substance , the amendment of June 23 , 1958, deleted from the
1957 contract the preferential hiring provisions set forth above, and
substituted the following therefor :
The Employer desires to have a reliable source of obtaining its
employees and the Union represents that it has available for
employment persons with the necessary experience and qualifica-
tions to perform work of the type and character outlined in Sec-
tion 2 and hereby offers to supply competent workers to the
Employer at the Employer 's request. Applicants for work shall
be referred to the Employer on a non-discriminatory basis and
such referrals shall not be based on, or in any way affected by,
union membership , by-laws, rules, regulations , constitutional pro-
visions, or any other aspect or obligation of union membership,
policies or requirements . In all such referrals the Employer
reserves the right to reject any job applicant referred by the
Union. Both the Union and the Employer will post these pro-
visions in places where notices to employees and applicants for
employment are customarily posted by them.
The amendment also added the following provision :
This contract is intended to be construed and treated as a mem-
bers only contract without forms of union security . .. .
The amendment , however, left virtually intact the substantive pro-
visions of the original contract.
From the foregoing it appears that the Respondent entered into the
1957 agreement covering employees to be hired at its Memphis plant
before it had any Memphis employees . The General Counsel contends
that the Respondent unlawfully assisted Local 23 by maintaining a
contract which extended exclusive recognition to Local 23, although
it was not the majority representative of the Memphis employees.
The Respondent maintains that the contract applies to union mem-
bers only and that it is, therefore , immaterial that Local 23 was not
entitled to exclusive recognition . While it is true that the contract
purported to recognize Local 23 "for members covered by this con-
tract and employed in Employer 's plant" and that the contract con-
tained no express language designating Local 23 as the exclusive
bargaining agent, we cannot overlook the further fact that, under the
terms of the contract , except as to maintenance personnel , Local 23
undertook to supply , if available, members necessary to operate the
Respondent 's new Memphis plant and the Respondent agreed to staff
its Memphis plant - with such Local 23 members . The contract thus
contained a preferential hiring provision . In addition , as indicated
above, the contract also contained substantive terms and conditions
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment which indicate that at least certain provisions of the
contract were applicable to all employees regardless of whether they
were members of Local 23.3 Under the circumstances, we conclude
that the 1957 contract, in effect, extended exclusive recognition to
Local 23.
The complaint did not allege that the execution of the 1957 contract
constituted an unfair labor practice. As that contract was executed
more than 6 months before the filing of the charge herein, we make
no finding that the Respondent violated the Act by execution of the
1957 contract. However, we find that, since on or about November 23,
1957, the Respondent assisted and contributed support to Local 23 in
violation of Section 8(a) (1) and (2) of the Act by maintaining in
effect the 1957 agreement, including the unlawful preferential hiring
clause, and continuing to recognize Local 23 as the exclusive bargain-
ing representative for employees at the Respondent's Memphis plant
although Local 23 at no time represented an uncoerced majority of
the aforesaid employees.4
We further find that the Respondent assisted and contributed sup-
port to Local 23 on or about June 23, 1958, and thereafter, in violation
of Section 8 (a) (2) and Section S (a) (1) of the Act, by entering into
the amendment to the 1957 contract which purported to convert, the
1957 contract to a "members only" contract. At that time the Re-
spondent had no employees at the Memphis plant and, of course, Local
23 represented none. We have found above that the Respondent
unlawfully assisted Local -23 by maintaining in force the 1957 contract
after November 23, 1957. Thus, on June 23, 1958, at the time of the
execution of the amendment to the 1957 contract, Local 23 was already
an illegally assisted union. Thus, the 1958 amendment to the 1957
contract was made with a tainted labor organization under the law.
We view the execution of the 1958 amendment as an integral part of
the Respondent's entire course of conduct designed to deprive em-
ployees of their freedom to choose their own bargaining agent .5 Even
s Her ft Jones Company, 97 NLRB 1070 ( in which the Board held that a contract re-
ferring to "members " in the recognition and wage clauses, although ambiguous on its face,
was not a members - only contract where evidence established that the contract was in-
tended to apply , and was applied , to members and nonmembers alike ) ; Sunbeam Corpora-
tion, 99 NLRB 546, 548 (in which , although purporting to be a "members only" contract,
the contract , with one exception accorded the benefits to all employees and all employees
were subject to elaborate and comprehensive separate provisions as to various terms and
conditions of employment . There , the Board stated that "for all practical purposes this
was an exclusive bargaining contract despite its label to the contrary ) ; The Narragansett
Electric Company , 64 NLRB 1492 ( in which the Board held that a contract between an
employer and "those of its employees who are members " of a union was not a "members
only" contract where all permanent employees , i.e., those employed for more than
6 months, were required to be members of the union).
* See, for example , Foundation Co., 120 NLRB 1453; Bernhard-Altman Texas Corpora-
tion, 122 NLRB 1289. In accordance with the Board ' s implicit holding in the latter case,
we find no merit in the Respondent's contention that a finding of unlawful support is pre-
cluded by the fact that the Charging Union, Local 19, never requested recognition or a
contract.
5 Max Factor and Company, 118 NLRB 808.
ALCO-GRAVURE, DIVISION OF PUBLICATION CORPORATION 1033
if it be assumed, as the Respondent contends, that the 1958 amend-
ment converted the 1957 contract into a "members only" contract, we
conclude that the 1958 amendment constituted, under the circum-
stances, further illegal assistance to Local 23.
TIIE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
We have found above that the Respondent unlawfully contributed
support to Local 23 by maintaining a collective-bargaining contract,
dated July 23, 1957, which extended exclusive recognition to Local 23
although that labor organization was not entitled thereto. We shall,
therefore, order that the Respondent withdraw and withhold all rec-
ognition from Local 23 as the collective-bargaining representative of
its Memphis employees unless and until Local 23 has demonstrated its
exclusive majority status pursuant to a Board-directed election among
the Respondent's Memphis employees. As we have also found that
the amendment, dated June 23, 1958, granting limited recognition to
Local 23, was, in the total facts of the case, a further form of unlaw-
ful assistance to Local 23, we shall also order the Respondent to cease
giving effect to that contract, or to any extension, renewal, modifica-
tion, or supplement thereof, or to any superseding contract.' More-
over, as one of the forms of unlawful assistance to Local 23 was the
use of a members -only contract, we shall enjoin the the Respondent
from recognizing Local 23 even to the limited extent of members only
recognition until such time as Local 23 shall demonstrate its exclusive
majority status in a Board-conducted election among the Respondent's
Memphis employees. However, the Respondent is not required to
vary the,wages, hours, or other lawful terms or conditions of employ-
merit heretofore established.
There is no merit to the Respondent's contention that the 1958
amendment served to dispel the effects of any earlier unfair labor
practices and that, therefore, no further remedy is now required. We
do not now decide whether a members-only contract, standing apart
from any other unlawful conduct, is by itself a violation of the Act.
Even assuming, however, that a members-only contract is not per se
9 Board Member Rodgers, in addition to ordering the Respondent to cease giving effect to
its contract with Local 23, would also order the Respondent to reimburse its employees
for union dues , fees, assessments , and other moneys exacted under such contract. See
T. C. Wagster d/b/a ABC Machine and Welding Service, 122 NLRB 944 ; Adley Express
Company, and Motor Transport Labor Relations , Inc., 123 NLRB 1372 ; Nassau and Suffolk
Contractors ' Association, Inc., 123 NLRB 1393.
In the opinion of Member Rodgers , to order Respondent to cease giving effect to its con-
tract with Local 23 and to cease recognizing that union , and, at the same time , to fail to
order such reimbursement, not only is a patently inconsistent action but also fails to
provide an adequate remedy for Respondent 's unfair labor practices.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawful, such fact alone does not serve to limit the Board's broad
power to remedy the unfair labor practices committed.7
The Respondent's coercion of employees to join Local 23, the sup-
port and assistance rendered to Local 23, including its unlawful rec-
ognition in bargaining with Local 23 as the exclusive representative
of employees, demonstrate that the commission of similar unfair labor
practices may reasonably be anticipated in the future. Our remedy
should be coextensive with the threat. We shall therefore order that
the Respondent cease and desist from infringing in any manner upon
the rights guaranteed in Section 7 of the Act.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section III, above,
occurring in connection with its operations as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of
commerce.8
CONCLUSIONS OF LAW
1. Memphis Plate Handlers and Paper Handlers Union No. 23 is
a labor organization within the meaning of Section 2(5) of the Act.
2. By recognizing Local 23 as the exclusive representative of its
Memphis employees and by maintaining a contract containing pref-
erential hiring provisions with Local 23, and by entering into an
amended contract with Local 23, thereby assisting and contributing
support to Local 23, the Respondent engaged in unfair labor practices
in violation of Section 8 (a) (2) of the Act.
3. In the foregoing manner, by interfering with, restraining, and
coercing employees in the exercise of the rights guaranteed in Section
7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Alco-Gravure,
T D1ax Factor and Company , cited supra, and cases cited therein.
8 We find no merit in the Respondent ' s contention that the alleged unfair labor prac-
tices did not affect commerce within the meaning of the Act as its Memphis plant was not
In operation and the Respondent had no employees at that plant at the time of the alleged
unfair labor practices. As noted above , the Respondent had plants in operation in other
States at the time of the unfair labor practices found and the Respondent had employees
at its Memphis plant at the time of the execution of the stipulation . In any event, the
Respondent ' s unfair labor practices herein potentially threatened to obstruct commerce at
the Memphis plant and thus tended to obstruct commerce as we have found above.
ALCO-GRAVURE, DIVISION OF PUBLICATION CORPORATION 1035
Division of Publication Corporation, Memphis, Tennessee, its officers,
agents, successors, and assigns, shall :
(1) Cease and desist from :
(a) Giving effect to its contract of July 23, 1957, as amended on
June 23, 1958, with Memphis Plate Handlers and Paper Handlers
Union No. 23, or to any extension, renewal, modification, or supple-
ment thereto, or to any superseding agreement, unless and until said
labor organization, or successor thereto, shall have demonstrated
its exclusive majority representative status pursuant to a Board-
conducted election among the Memphis employees of the Respondent.
(b) Recognizing Local 23, or any successor thereto, as the repre-
sentative of its Memphis employees (even limited to its members) for
the purpose of dealing with Local 23, or any successor thereto, concern-
ing grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until said Local
23, or successor thereto, shall have demonstrated its majority repre-
sentative status pursuant to a Board-conducted election among the
Respondent's Memphis employees.
(c) In any other manner interfering with, restraining, or coercing
employees or applicants for employment in the exercise of the rights
guaranteed by Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from the aforesaid
Local 23, or any successor thereto, as the representative of the Re-
spondent's Memphis employees (even limited to its members) for the
purposes of collective bargaining unless and until said Local 23, or
any successor, shall have demonstrated its exclusive majority repre-
sentative status pursuant to a Board-conducted election among the
Respondent's Memphis employees.
(b) Post in conspicuous places at its plant in Memphis, Tennessee,
including all places where notices to employees are customarily posted,
copies of the notice attached hereto marked "Appendix A." I Copies
of said notice, to be furnished by the Regional Director for the Fif-
teenth Region, shall, after being duly signed by a representative of
the Respondent, be posted by it immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
I 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 YPursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that said notices are not altered, defaced, or covered by -any other
material.
(c) Notify the Regional Director for the Fifteenth Region in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
CHAIRMAN LEEDOM, d issenting :
I would dismiss the complaint in this case. It is true, as my col-
leagues find, that the original 1957 contract contained a preferential
hiring clause and that it extended, in effect, exclusive recognition to
Local 23, although that labor organization represented no employees.
at the Respondent's Memphis plant. However, as is recognized in
the majority opinion, no unfair labor practice finding may properly
be predicated on the execution of that contract as it was made more
than 6 months before the filing of the charge in this case. The issue,
then, is whether the 1957 contract was thereafter maintained in viola-
tion of the Act as alleged in the complaint. I think not. Webster's
Collegiate Dictionary (Fifth Edition) defines the word "maintain"
as "1. To continue or preserve in or with; to carry on. 2. To keel),
possession of. . . ." The legal definition of maintaining a contract,
as I understand the term, is, in conformity with Webster's primary
definition, that of persevering with or carrying on, a contract, rather
than that of keeping the contract in one's possession, as was, in sub-
stance, the case here. The original contract, executed on July 23, 1957,,
was in existence only during a period in which the Respondent had no
employees at the plant intended to be covered by the contract and dur-
ing which that plant was not in operation. Long before commence-
ment of operations at the Memphis plant and before hiring anyone
for work there, the Respondent entered into the 1958 amendment
which eliminated the preferential hiring clause in the original con-
tract and made clear that the contractual arrangement with Local 23
was intended thenceforth to be on a members-only basis. Before
execution of the 1958 amendment, the 1957 contract was not applied to
any employee at the Respondent's Memphis plant as there were no
employees at that plant at that time. So far as appears, no person
applied for work at the Memphis plant and the Respondent was not
hiring persons for work there during that period. Indeed, as there is
no showing that the terms of the 1957 contract were publicized to the
public at large, there is no warrant for inferring that any individual
was deterred from applying for work at the Respondent's Memphis
plantbecause of the existence of the 1957 contract. Thus, the 1957 con-
tract had no coercive effect upon any existing employee or any ap-
plicant for employment,10 and was not applied, and therefore not
10 In this respect, the instant case is distinguishable from Max Factor, cited in the
majority opinion, wherein, unlike here, in the interim between the making of two con-
(tracts, the second purporting to cure the illegality of the first, the employer made state-
ALCO-GRAVURE, DIVISION OF PUBLICATION CORPORATION 1037
maintained, so as to deprive any employee of any right guaranteed by
the Act. So viewed, any violation inherent in the 1957 contract was,
at most, technical in nature but beyond the Board's reach because of
Section 10(b) of the Act; moreover, it was seasonably cured by
execution of the 1958 amendment. Accordingly, I find no merit in
the allegations of the complaint and would dismiss the proceeding.
MEMBER JENKINS took no part in the consideration of the above.
Decision and Order.
ments in which it urged and required existing employees to join a minority union which
held an exclusive bargaining contract containing a union-shop clause.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees and
prospective employees that :
WE WILL NOT give effect to the contract of July 23, 1957, as
amended on June 23, 1958, with Memphis Plate Handlers and
Paper Handlers Union No. 23, or to any extension, renewal, modi-
fication or supplement thereof, or to any superseding agreement,
unless and until said labor organization, or its successor, shall
have demonstrated its exclusive majority representative status
in a Board-conducted election.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed by Sec-
tion 7 of the National Labor Relations Act, as amended, except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a) (3) of the National
Labor Relations Act, as amended.
WE WILL withdraw and withhold all recognition from Memphis
Plate Handlers and Paper Handlers Union No. 23, as the repre-
sentative of our Memphis employees (even limited to its mem-
bers) for the purpose of collective bargaining unless and until
said labor organization shall have demonstrated its exclusive
majority representative status in a Board-conducted election.
ALCO-GRAVURE, DIVISION OF PUBLICATION CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.