Register Publishing Co., Ltd.

National Labor Relations Board - Board Decisions

Oct 7, 1942

44 N.L.R.B. 834 (N.L.R.B. 1942)

In the Matter of REGISTER PUBLISHING 'Co., LTD. and SANTA ANA
INTERNATIONAL TYPOGRAPHICAL UNION No. 579
Case No. C-2025.Decided October 7, 194,.
Jurisdiction : newspaper publishing industry.
Unfair Labor Practices
Discrimination : discharging unfair labor practice strikers by notifying union
that their positions had been permanently filled by new employees who would
not be displaced to afford positions to them.
Collective Bargaining : majority established by membership in union and par-
ticipation in strike-refusal to bargain in good faith in effort to reach an
,agreement by: anticipatory refusal to reduce in writing any agreement which
might be reached; submitting without justification counterproposals which
meant a detraction from-existing working conditions ; refusal to arbitrate
matters in dispute; stating during strike that it would "never sign with the
union"; conditioning bargaining during strike by requiring that reinstatement
of the strikers be considered on an "individual" basis and removing the basis
for negotiations by permanently replacing the union members.
Remedial Orders: order to bargain collectively; order requiring reinstatement
and back pay based not only upon fact to remedy unfair labor practices in
discharging striking employees but also, and independently upon the ground
that the strike was caused and prolongell by employer's refusal to bargain
collectively.
Mr. Charles M. Ryan, for the Board.
Mr. Willis Sargent and Mr. Paul Hart, of Los Angeles, Calif., for
the respondent.
Mr. Seth R. Brown, of Los Angeles, Calif., for the Union.
Mr. Bliss Daffanz, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Santa Ana Inter-
national Typographical Union No. 579; affiliated with the International
Typographical Union, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Twenty-first Region (Los Angeles, California) issued its com-
44 N. L R. B., No. 167.
834
REGISTER PUBLISHING CO., LTD. 835
plaint dated April 23, 1942, against Register Publishing Co., Ltd.,
Santa Ana, California, 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 ( 1), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. Copies of the complaint, together
with notice of hearing thereon, were duly served, upon the respondent
and the Union.
With respect to the unfair labor practices, the complaint alleged,
in substance, that the respondent (1) on or about March 1, 1940, and
at all times thereafter, refused to bargain collectively with the Union
which represented a majority of the respondent's employees within an
appropriate unit: ( 2) since July 29, 1941 , has refused to reinstate 20
named employees who had gone out on strike on May 1 , 1941; and (3),
by these acts and by criticizing and condemning unions as rackets and
union members as racketeers ; by criticizing and condemning the prin-
ciples of collective bargaining; by questioning employees concerning
the Union; by, statements that unions have never benefited anyone
and employees are better off without a union; by statements that it
would never enter into a written signed contract with the union; and
by promises of reward to employees if they would withdraw from
membership in and activity on behalf of the Union; has thereby inter-
fered with , restrained , and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
On May 6, 1942, the respondent filed its answer, in which it denied
the jurisdiction of the Board and denied that it had engaged in the
unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing vas held in Santa Ana, California,
on May 7, 8, and 11, 1942, before Will Maslow, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were, represented by counsel and the Union by a represent-
ative. All participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to,introduce evi-
dence bearing upon the issues was afforded all parties. ' At the close
of the Board's case , and again at the close of the hearing , the respond-
ent moved to dismiss the complaint for want of jurisdiction and also
because of the insufficiency of the proof. These motions were denied
by the Trial Examiner . At the close of the hearing , motions by both
the attorney for the Board and the respondent to conform the plead-
ings to the proof were granted by the Trial Examiner without objec-
tion. During the course of the hearing, the Trial Examiner made
rulings on numerous other motions and on objectioils , to the admission
of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed.. The
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. At the 'close of the hearing, both the
attorney for the Board and the respondent,argued orally before the
Trial Examiner. The respondent also submitted' a brief to the Trial
Examiner.
On June ,11, 1942, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly' served upon all parties, in which he
found that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section 8
(1), (3), and (5) and Section 2 (6) and (7) of the Act. He recom-
mended that the respondent be ordered to cease and desist therefrom
and to take certain affirmative action in order to effectuate the policies
.of the Act, including the reinstatement with back pay of certain em-
ployees. Thereafter, on August 1, 1942, the respondent filed exceptions
to the Intermediate Report. None of the parties requested leave to
r.rgue orally before the Board.
The Board has considered the exceptions filed by the respondent
and, except as they are consistent with the findings of fact, conclusions
of law, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS of FACT
1 I. THE BUSINESS OF THE RESPONDENT
Register Publishing Co., Ltd., a California corporation, is engaged
in the publication of a daily newspaper in Santa Ana, California,
known as the Santa Ana Register,' herein called the Register. During
1940 all the newsprint used by the respondent, amounting to 1,431,000
pounds, and valued at $34,636, was shipped to Santa Ana fropn
Canada. During the same period miscellaneous materials and equip-
nient valued at about $7,000 were likewise shipped from points outside
the State of California to the respondent's plant in Santa Ana.
The respondent subscribes to the news services of the Associated
Press, the United Press, and 'the International News Service; the
greater part of the news of these services is gathered outside the
State of California by these services and transmitted to the Register.
This news constitutes about 12 percent of the total news appearing
in the Register. In addition, the Register publishes a miscellany of
special features, about 90 percent of which is furnished to. it by feature
services located outside the State of California. These features con-
stitute about 8 percent of the total reading material of the Register.
About 6 percent of the total revenue of the respondent is .derived
from national advertisers located outside the State of California.
This advertising is transmitted to the Register by agencies likewise
located outside the State of California. The respondent's total
REGISTER PUBLISHING CO., LTD. 837
annual gross revenue is more than $300,000, two-thirds of which comes
from its advertising and the remainder from its subscribers.
There has been no substantial change since 1940 in the operations
of the respondent described above, except for a decline in national
advertising.
The respondent employs from 80 to 85 persons, about 25 of whom
were employed in April 1941, as printers or apprentices.
H. THE ORGANIZATION INVOLVED
Santa Ana International Typographical Union No. 579, affiliated
with the International Typographical Union which was formerly
affiliated with the American Federation of Labor but is now unaffilia-
ted, is a labor organization admitting to membership employees in the
composing room of the respondent's plant.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Register has been published in Santa Ana since at least 1909.
From 1909 to about' 1928 it was owned by one Baumgartner. In 1928
it was acquired by the respondent, the then chief stockholder being
J. F. Burke. In 1935 the Hoiles family, the present stockholders and
publishers, purchased the stock of the respondent and have held it ever
since.
From 1909 to 1935 the working conditions of the printers in the
composing room were governed by an oral contract between the
Union and, the various owners of the Register. From 1935 to 1937
while the Hoiles family was in control, the terms of the prior oral
contract were observed by the Hoiles although the oral contract was
not formally renewed.
In 1937 the Union met with the respondent, the publishers of a
competing newspaper in the county, known as the Santa Ana Journal,
and the owners of the commercial job printing shops in Santa Ana,
and concluded a new agreement. The commercial job printers signed
the agreement, but the respondent and the publishers of the Santa Ana
Journal refused to do so. The terms of the oral agreement with the
respondent were, however, reduced to writing. By its terms this
agreement was to remain in force until March 1939 and provisions
were contained therein providing for a closed shop and for a wage
increase from 871/2 cents an hour to 92 cents an hour at the beginning
of the period covered by said agreement, and an additional increase to
$1 an hour before the expiration data thereof; limiting the number of
apprentices to three and specifying the.type of work which they,could
do; and providing fora workweek of 5 days of 71/.? hours, and for the
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payment of time and a half for all work 'in excess of 71/2 hours on a
given day with an option given the respondent to change the work-
week to five 8-hour days by giving 2' weeks' notice' to the Union.
Likewise, this agreement provided that the constitution and bylaws
of the Union were made a part thereof.
In March 1939, upon the expiration of the agreement, the Union met
with the respondent in an attempt, to negotiate a new agreement.
While the record is not entirely clear regarding these negotiations,,
apparently the 1937 agreement was continued in existence by mutual
agreement for a period of 1 year, after an effort'on the part of the
Union to obtain new terms proved unsuccessful.'
B. The refusal to bargain with the Union
1. The appropriate unit
The complaint alleges, and the respondent's answer admits, that all
the employees in the composing room of the respondent's Santa Ana
plant constitute a unit appropriate for the purposes of collective bar-
gaining. We find that all the employees in the composing room of the
respondent's Santa Ana plant have, at all times material herein, and
do now, constitute a unit appropriate for the purposes of collective
bargaining, and that said unit insures to employees of the respondent
the full.benefit of their right to self-organization and to collective
bargaining and otherwise effectuates the policies of the Act.
2. Representation of a majority in the appropriate unit
The complaint alleges that prior to March 1, 1940, and at all times
thereafter, a majority of the employees in the respondent's composing
room designated the Union as their representative for the purposes
of collective bargaining with the respondent and therefore the Union.
has been since March 1, 1940, and is now, the exclusive representative
of all said employees for the purposes of collective bargaining. The
respondent's answer admits that up to April 30, 1941, the Union was
such exclusive representative.
On the night of April 30, 1941, the employees in the respondent's
composing room went on strike, and the strike has continued ever since.
I Seth R Brown, a repiesentative of the International Typographical Union, testified
with respect to the negotiations in 1939, that "I guess they didn't come to an agreement on
the terms and finally it was allowed to continue" until March of 1940 George Duke, vice
president of the Union, testified that in March 1939, "there was a brief negotiation during
which time no change in the contract was made, although iequested I believe at that time,
although I was not present , I believe a request was made that a contract be signed and
continue for another year" Duke was then asked if he knew whether or not the agi cement
was continued in existence from Mai ch 1939 to March 1910 and replied , "Yes, because I
was present at the union meeting at which we agreed to continue for another year by
action of the membership
REGISTER PUBLISHING CO., LTD. 839
As found below, this 'strike was occasioned by the respondent's unfair
labor practices in refusing to bargain with the Union. The employees
who were in the respondent's' employ and whose work ceased as a
result, of the respondent's unfair labor practices, therefore, remained
employees within the meaning of Section 2 (3) of the Act.
We find that on March 1, 1940, and at all times thereafter, the Union
was and that it now is the duly designated representative of a majority
of the employees in the appropriate unit, and that, pursuant to Section
9 (a) of the Act the Union was and is the exclusive representative of
all the employees in such unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and other
conditions of employment.
3. The negotiations in 1940
In March 1940 the Union submitted its proposals for 'a new con-
tract, requesting a wage rate ,of $1.15 an hour and 1 week's vacation
with pay for all printers. As shown above, the existing contract pro-
vided for $1 an hour and contained no provision for vacations. Early
in March 1940 C. H. Hoiles, the secretary-treasurer of the respondent
and son of R. C. Hoiles, its president, met with representatives of
the Union and rejected the proposals, stating that since the respondent
paid overtime to its printers, it was opposed as a matter of principle
to granting vacations with pay. Hoiles also stated that the respond-
ent would not increase the hourly rate of pay of the printers. The
Union then requested the respondent to submit counterproposals.
Sometime later in March, the respondent proposed that there be no
discrimination between union and non-union members in the plant; 2
that it be given "full control" over apprentices, thereby eliminating
all restrictions such as those contained in the previous agreements
relating to the number of apprentices it could hire and the type of
work which they could perform; that the rate of pay 'of "straight
matter operations" 3 be deceased from the hourly rate of $1, provided
in the 1939 agreement,, to 75 cents; and that the workweek be increased
to 40 hours. Each of the points set forth in the respondent's pro-
posal meant a detraction from existing conditions of the employees
affected-then numbering 22 operators and 3 apprentices.
Upon receipt of the respondent's proposals, the Union requested
the assistance of Brown, a former vice president of the International
2 C. H. Hoiles testified that the respondent meant by this proposal that it desired that
the previously established closed shop be abolished
a A "straight natter operator," as the name implies, is a printer qualified only to set
up on a typesetting machine stiaight editorial matter, as distinguished from the more diffi-
cult printing, such as setting up advertising matter and market quotations, which are
customarily handled by "combina"tions operators " who are capable of doing any sort of
work in a composing room. Duke testified that there were three combination operators in
the respondent ' s employ.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Typographical Union, herein called the ITU, who thereupon came to
'Santa Ana to conduct negotiations with the respondent relative to a
collective bargaining agreement. Brown met with C. H. Hoiles on
March 20, 1940, to discuss the respondent's counterproposals. Hoiles
stated that the respondent wished to have full control of the work
done by the apprentices during their 6-year apprenticeship and spe-
cifically that apprentices should be allowed to work on the linotype
machines prior to the last year of their 6-year apprenticeships. In
reply Brown quoted from the bylaws of the ITU which he contended
forbade the inclusion of such provisions in the contract of a subordi-
nate local. Brown likewise opposed the respondent's proposal that
the wages of straight-matter operators be set at 75 cents an hour, con-
tending that this was below the minimum rate of $1 an hour estab-
lished for all operators under the prior agreement. The parties also
discussed, in detail, the Union's proposal regarding vacations with
pay. No agreement was reached on any terms at this meeting. On
March 27, 1940, Brown and -Hoiles met again and continued their
discussions.
On April 15, 1940, Brown and Duke, vice president of the Union,
met with Hoiles. Brown offered to submit to the Union for ratifica-
tion a provision that the hourly rate of the operators be increased
to $1.06 an hour, a drop from the original demand of $1.15 an hour.
Hoiles rejected this offer. Hoiles also reiterated his position (ex-
pressed at the prior conferences that complete control of the appren-
tices be vested in the respondent, and Brown -repeated his previous
assertion that such a provision was contrary to the laws of the 'ITU.
Brown then suggested that the matters in dispute, between the Union
and the respondent be arbitrated., This proposal was also rejected
by Hoiles: Duke then stated that if an agreement were reached, the
Union desired it to be reduced to writing and signed by the parties.
Hoiles replied that -the respondent would not consider signing a con-
tract, that his word was good, and that the Union did not need to
fear that he would violate an oral agreement. The meeting then
ended with a request by Brown that the respondent submit new
counterproposals.
On May 3, Brown, Duke, and C. H. Hoiles met again. The repre-
sentatives of the. Union asked Hoiles if the respondent had any coun-
terproposals to submit and were advised that it did not. Duke then
presented a new proposal on behalf of the Union providing for a grad- -
There is some conflict between the testimony of Brown and Hoiles on this point. Brown
.testified that he requested that "all" matters in dispute between, the parties be arbitrated,
whereas Hoiles testified that the Union 's willingness to arbitrate was restricted to the wage
issue. The bylaws of the ITU forbid arbitration of is "general laws" which include pro-
visions relating to apprentices . Under these circumstances , we find that Brown ' s proposal
of arbitration was restricted to those matters which could be arbitrated under the laws of
the ITU and that this was the respondent 's .understanding regarding the proposal
REGISTER PUBLISHING Co., LTD. 841
uated wage scale and graduated provisions for vacations with pay, as
follows :
$1.03 an hour to September 1, 1940
1.04 an hour from September 1, 1940, to March 1, 1941
1.05 an hour from March 1, 1941, to September 1, 1941
1.06 an hour from September 1, 1941, to March 1,1942'
1.08 an hour from March 1, 1942, to March 1, 1943.
2 days vacation with pay in 1940
3 days vacation with pay in 1941-
5 days vacation with pay in 1942
5 days vacation with pay in 1943.
The Union again requested that any agreement reached -between the
parties be reduced to writing and signed and Hoiles reiterated his pre-
vious assertions that the respondent would not sign a contract with the
Union. However, Hoiles agreed to take the Union's modified demands
under advisement. This was the second time the Union had lowered
its original demands.
On May 1^, 1940, the parties met again and C. H. Hoiles rejected the
Union's modified proposal, stating that he could not grant a wage
increase, no matter how small, because his other employees would then
ask for a similar increase. The Union again requested the respondent
to submit counterproposals but Hoiles stated that it had none.
The Union met that evening and decided to hold in abeyance the
entire negotiations with the respondent. No further conferences with
the respondent were held until April 1, 1941. However, the terms of
.the oral agreement, which expired in March 1940, were observed by the
respondent until May 1, 1941.
4. The negotiations in 1941
In 'March 1941, the Union negotiated a series of contracts with
commercial job printers in Santa Ana and with three weekly news-
papers in the vicinity. These contracts raised the, hourly wage rate
of the printers involved from $1 an hour to $1.07 an hour up to Octo-
ber 1; ' 1941, and to $1.12 an hour. from October 1, 1941, to October 1,
1942. On April 3, 1941, the Union addressed a letter to the respondent
advising it of the aforesaid contract with the printing establishments
in the vicinity, and requesting a conference for the purpose of negotiat-
ing a collective bargaining agreement for 1941. Pursuant thereto, a
meeting was held early in April between representatives of the Union
and C. H. Hoiles. Brown notified Hoiles of the contract between the
Union and the job printers and weekly newspapers, contended that the
wage rates established thereby were the prevailing wage rates in the
842 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
community; and requested Hoiles to meet the rate. Hoi]es stated that
while the respondent was financially able to grant the increase re-
quested, it would not. do so because that would necessitate increasing
the wages of employees in other departments. Hoiles countered with
a proposal that the workweek be increased from 371,2 to 40 hours, thus
eliminating overtime pay for the extra 21/2 hours a week in the event
that the printers worked as much as 40 hours during a given week.
Brown rejected this proposal but agreed to submit it directly to the
union menmbership. The Union again requested, that any agreement
reached between the parties be signed and Hoiles maintained the posi-
tion which he had taken throughout the negotiations that the re-
spondent would not sign a contract with the Union. The apprentice-
ship question was also discussed at length and both parties took the
same position on this issue which they had assumed during the 1940
negotiations.5
On April 18, 1941, the parties met again and the Union notified
C. H. Hoiles that its members had rejected the proposed increase of
the workweek to 40 hours at straight-time pay. After some discussion
on the wage issue the Union requested the respondent to make a new
offer but Hoiles declined to do so. Brown then asked Hoiles to fix a
date for a further conference. Hoiles replied that the parties could
meet again but that it would be useless; that they could talk about the
war or the weather, but there would not be any increase in wages. A
meeting was nevertheless scheduled for April 26. On that day, as he
waited for C. H. Roils at the respondent's office, Brown was notified
that the meeting would not take place, but the Union would receive a
written statement with regard to the respondent's position.
On April 29, 1941, the Union received a letter from the respondent,
dated April 26, which read:
IIn its exceptions the respondent contends that the term "full control of apprentices,"
when interpreted in the light of the evidence in the record, actually meant and was under-
stood by the parties to mean that the despondent merely desned to employ five apprentices,
which the ITU constitution would have peimitted, instead of three, as provided in the
agreement in effect prior to 1940, and that such apprentices be permitted to receive train-
ing on typesetting machines prior to the 6th year of their appienticeship while it is tiue
that Brown, when asked what position the respondent had taken on the apprentice issue
during the conferences in April 1941, testified that Hoiles stated that he "believed that an
apprentice should be allowed to work on a machine before his sixth year," there is no
evidence in the record that the respondent departed from the position relative to apprentices
which it first took at the beginning of negotiations in 1940 Duke and Brown testified that
the respondent's proposal at that time was for "full control over, apprentices both as to the
number and as to the work they were doing during their apprenticeship " Likewise, on
cross-examination, Hoiles was asked if it were not a fact that the respondent "at all times"
insisted that it be given complete control over apprentices "as to the number and the work
to be done," and replied in the affirmative As will be noted, this is the same position
reflected by the respondent's letter of April 26, 1941, hereinafter set forth, wherein it is
stated, "Also, we are to have complete control of the number and work of our apprentices,
as we see fit for efficient operation of our plant" Under these ciicumstances we find, as
did the Trial Examiner, that throughout the negotiations the respondent insisted on
"full control" of apprentices, as the terns implies.
REGISTER PUBLISHING CO., LTD. 843
In accordance with our recent negotiations, the Board of Directors
of the Register Publishing Co., Ltd., have authorized me to place
this proposition before you in writing.
Namely, we are willing to allow our printers to work forty' (40)
hours a week, instead of 371/2, at the salve rate they are now get-
ting $1 an hour. This will give them a weekly increase of .$2.50,,
or approximately $130 a year.
Also, we are to, have complete control of the number and-work of
our apprentices, as we see fit for efficient operation of our plant.
Hoping this meets with your approval, we are,
Very truly yours,
REGISTER PUBLISHING CO,, LTD.,
(s) C. H. HoILES, Secretary-Treasurer.
Following receipt of the respondent's letter Brown met with Hoiles
on the afternoon of April 30, 1941, and urged him to confer further
with the Union in an effort to settle the controversy. Hoiles stated
that the respondent's final position on the matter was expressed by
the letter of April 26. Brown advised Hoiles that the Union could
not accept the respondent's proposals.
On the evening of April 30, 1941, the Union met and Brown re-
ported on the negotiations with the respondent. A general discussion
then ensued with respect to the respondent's refusal to sign an agree-
ment with the Union, its insistence on abolishing the closed shop, and
the position which it had maintained throughout the negotiations
relative to the matter of apprentices and a wage increases As a
result of this discussion, a strike vote was taken and the Union voted
to go out on strike.
5. The strike and the events subsequent thereto
The strike began on the evening of April 30, 1941. All the em-
ployees in the composing room went out on strike that evening or the
The respondent contends that the evidence establishes that the only points in issue
between it and the Union when the stoke was called were the matters of apprentices and a
wage inciease In support of this, the respondent points to the fact that these are the,
only two matters adverted to in its letter of April 26, 1941 On this point, the evidence
discloses, as found above, that at the conference early in April 1941, the Union repeated its
previous request that any agreement ieached between the patties be signed, and Floiles
'stated that the iespondent would not sign an agreement There is no evidence that the
respondent at any time thereafter receded from this position Likewise, theie is no evi-
dence that the respondent ever receded from its position taken at the beginning of negotia-
tions relative to the closed shop i On the other hand, the evidence is undisputed that the
Union considered that both the matteis of a signed agreement and a closed shop were in
issue, as well as apprentices and a wage increase, since at the meeting when the strike
vote was taken these matters were discussed as points of differ once between the Union and
the respondent., Under these circumstances we find, as did the Trial Examiner, that
throughout the negotiations the respondent did not recede from its position that it would
not agree to a closed-shop provision or sign a contract with the Union.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
next morning with the exception of the foreman and one apprentice.'
On April 30, 1941, the night the strike began, C. H. Hoiles'called
union-member William Bray into his office, and requested him to re-
turn to work the next day, promising him $1.50 an hour'for overtime
work in addition to his regular wages. Bray replied that the respond-
ent might conclude to execute a contract with the Union within a day
or so, in which event he would have incurred the displeasure of the
Union by returning to work. According to Bray's testimony, Hoiles
replied, "We will not sign up in two or three days and we will never
sign with the, Union." When Bray explained that he would be fined
$1000 by the Union if he returned to work during the strike, Hoiles
offered to take care of any fine imposed by the Union. Bray stated
that he "would have to go home and talk it,over with my wife." Al-
though Hoiles denied, in part, this conversation, we credit the testi-
mony of Bray, as did the Trial Examiner.
On May 1, 1941, R. C. Hoiles,s the respondent's president, visited
Bray's home and spoke to the" latter's wife. Hoiles requested Mrs.
Bray to use her influence to induce her husband to return to work,
When Mrs. Bray referred to the possibility of a $1000 fine if her hus-
band did so, Hoiles offered to post $1000 in a bank in escrow to,provide
for that contingency, and, in addition, offered to furnish all the money
which she needed for her immediate use. , Mrs. Bray refused. During
the conversation Hoiles stated that he did not believe in unions and
that his self-respect prevented him from taking back the union men.
On May 2 or 3, Duke met C. H. Hoiles and advised him that the
Union was still willing to negotiate with the respondent. Hoiles
replied that any of the strikers who desired to return to work would be.
considered individually.
On May 4, 1941, R. C. Hoiles visited Bray at his home and offered
him $40 a week if he would return to work. Bray refused. During
the conversation, R. C. Hoiles stated that difficulties with the ITU on
a prior occasion had cost him $8000 and that he would never have
anything to do with it.
On May 5, 1941, Clarence Liles, business agent for the Allied Print-
ing Trades, called on C. H. Hoiles and advised him that the stereo-
typers employed by the respondent would not pass through the picket
line established by the Union.9 Liles told Hoiles that if the picket line
were removed or the printers came back to work, the stereotypers
would return to work. Hoiles replied that, so far as the members of
The foreman was w. A. Lawrence His name was erroneously included in the com-
plaint as one of the employees refused employment by the respondent because of participa-
tion in the strike but was stricken therefrom during the hearing on motion of counsel for
the Board.
8 Although R. C Hoiles was present during the hearing lie did not testify.
9 The stereotypers have not yet returned to work and their places have been filled by new
employees
REGISTER PUBLISHING CO., LTD. 845
the Union were concerned, they would never cone back.10 On May 5,
one striking printer returned to work 11 and by May 6, 1941, all the re-
mainilig employees who were on strike were replaced by new
employees. '
During May 1941, a conciliator of the United States Department
of Labor conferred separately with the Union and the respondent
and urged both to submit the dispute to arbitration. The Union
agreed-to do so but the respondent refused.
On July 25, 1941, the Union held a meeting and; as, a result thereof,
addressed the following letter to the respondent :
At a meeting of Santa Ana Typographical Union #579, held on ,
Friday, July 25, the following action was taken by unanimous
vote : '
The Union requests a meeting-with the Santa Register Publish-,
ing Company for the purpose of renewing negotiations and reach-,
ing an agreement for the reinstatement of the former union
employees of The Santa Daily Register.
Yours truly,
SANTA ANA TYPOGRAPHICAL UNION #579,
(s) J. W. JONES, President.
( s) O. E . FISHER , Secretary.
On August 2, 1941 , the respondent replied as follows,:
We acknowledge receipt of your letter of recent date which
advises us of the action of your Union as of July 25th last.
The Santa Ana Register has never refused to negotiate with
you and will not refuse to negotiate with you now. Before sitting
down with 'you, however, we should point out, that since your
members went out on strike on May 1st last, nearly three months
ago, it has been necessary for us to employ others to take the
places of those who went out on strike.
These new employees have now become a part of the establish-
ment and we do not feel, in fairness to them, that we can replace
them now. Furthermore, shortly after your members went out
on strike, we offered, through your Mr.'. Duke then local President,
to take back any of your members who were out on strike, whom
we believe could be utilized if they returned to The Register
because of vacancies we had at that time. These men did not
to This finding is predicated upon the testimony of Liles and Edward Saleh , a stereotyper
present at the conferences C. II. IIoiles testified , however , that, the statement which he
made was, "what if they never come back?" "we credit as did the Trial Examiner, the
Liles-Saleh version of the statement -
The printer who returned to work was C' C. Tbra.,hei His name was erroneoush
Included in the complaint but was stricken therefrom dining the healing on motion of
counsel for the Board
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return, however, and it was necessary to fill the vacancies by
employing others who are now a part of our staff.
On behalf of the Management I also feel it necessary to indi-
cate to you that-there has been no change in our situation since
the Union, and the Management found it impossible to get to-
gether on the, questions of ,increased wages and apprentices.
If you wish to sit down with us, in view of what I have written,
the Management will certainly not refuse to confer,with you. We
think it^ only fair, however, that before doing so you should be
given our attitude, as outlined above.
Sincerely,
IIEGISTER PUBLISHING CO., IIrD.,
By (s) C. H. HOILES.
There were no further conferences or communications between the
Union and the respondent after the above letter. The strike was still
in progress at the time of the hearing and none of the 18 striking em-
ployees listed in Appendix A, attached hereto, had returned to work.
6. Concluding Findings
The complaint alleges that the respondent refused to bargain in
good faith with the Union on March 1, 1940, and at all times there-
after, and that the strike which began on April 30, 1941, .was caused
by these unfair labor practices on the part of the respondent. The
respondent contends that it has bargained in good faith with the Union
in an effort to reach an agreement but that an impasse was reached on
or about April 30, 1941, because of the failure of the parties to agree
regarding the particular terms of such an agreement and that the
strike was called by the Union as a result thereof.
It is clear, however, from the facts recited above, that the respondent
has .failed and refused to-bargain collectively, with the Union through-
out the, period of negotiations. The refusal of the respondent to reduce
any agreement which might be reached to a written signed agreement
constituted a refusal to bargain.12 Moreover, the duty imposed by the
Act "encompasses an obligation to enter into discussion with an open
and fair mind and with a sincere purpose to find a basis of agreement,
concerning the issues presented * * *" 13 -Although the Act does
12 Matter of H J. Heinz Co and Canning and Pickle Workeis ,' Local Union , etc, 10
N.L R.B 963 aff 'd 311 U. S 514.'
13 Matter of Singer Manufacturing Co and United Electrical, Radio d Maclaine Irorkezs
of America, Local No. 917, affiliated with the Congress of Industrial Organizations, 24
N. L R B 444, 464 , enf'd as mod. Singer Mfg Co Y. National Labor Relations Board, 119
F. (2d) 131 (C C A 7), cert . den 313 U S 595; Globe Cotton Mills v . National Labor
Relations Board, 103 F ( 2d) 91, (C. C A. 5) enf'g as-mod Matter of Globe Cotton Mills
and Textile Workers Organizing Committee , 6 N. L R. B 461, National Labor Relations
Board v. Griswold Mfg Co, 106 F. (2d) 713 (C. C A. 3), enf'g Matter of Griswold Mfg.
REGISTER PUBLISHING CO., LTD. 847
not require that an employer agree to any particular terms and failure
to conclude an agreement may not alone establish a refusal to bargain,
nevertheless, such matters may be relevant, in conjunction with the
entire course, of conduct, in evaluating the intent of the parties. In
view of the past relationship between the parties, including the closed
shop, apprentice control,,and the payment of prevailing rates, the re-
spondent's insistence, without any justification shown, that the Union
surrender benefits it had gained, is the very antithesis of any desire to
reach a mutually acceptable agreement. The respondent's refusal to
arbitrate the matters in dispute, establishes that it was not concerned
with the merits of the substantive issues but was determined rather
to deny to the Union the benefits of a collective agreement. That this
was its motive is established by the respondent's anticipatory refusal
to reduce to writing and make contractually binding any agreement
which might be reached. Further proof is found in the admissions,
during the strike, of H. C. Hoiles that the respondent would "never
sign with the Union" and of R. C. Hoiles that he "did not believe in
unions" and "would never have anything to do with [the ITU]."
Finally, the respondent's refusal to bargain during the strike by
requiring that relilstatement of the strikers be considered on an "indi-
vidual" basis and by removing the basis for negotiations by perma-
nently replacing the union members, conclusively establishes the re-
spondent's determination to evade its statutory obligation.
We find that on March 1, 1940, and at all times thereafter, the
respondent refused to bargain collectively with the Union" as the ex-
clusive representative of its employees in the appropriate unit in
respect to rates of pay, wages, hours of work, and other conditions
of employment, and that by such refusal, and by the statements made
to Bray and his wife by C. H. and R. C. Hoiles and the inducements
offered by the respondent to persuade Bray to cease his concerted
activity and abandon the Union, the respondent thereby interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act. We further find that the strike
which began on April 30, 1941, was the result of the respondent's
refusal to bargain with the Union and that it was prolonged there-
after because of 'the continued refusal of the respondent to bargain
with the Union.
C. Refusal to reinstate the strikers
The complaint alleges that on or about July 29, 1941, and at all times
thereafter, the respondent discriminated with regard to the hire and
Co and Amalgamated Association of Iron, Steel and Tin Workers etc, 6 N L R B 298;
National Labor Relations Board v. Westinghouse Air Brake Company, 120 P ( 2d) 1004
(C C A 3) enf'g as mod Matter of 11'estinghouse 9xr Bake Company and United Electi I-
cal, Radio and Machine Workers etc , 25 N . L R B 1312
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenure of employment of the employees listed in Appendix A, at-
tached,hereto, because of their membership in the Union and partici-
pation in the- strike. Since, as found above, the striking employees
ceased work as a consequence of the respondent's unfair labor prac-
tices, they remained employees within the. meaning of the Act and'
the respondent was under a duty not to discriminate in regard to
their hire and tenure of employment.
As shown above, the Union's letter of July 25,1941, requested a meet-
ing with the respondent for the purpose of "reaching an agreement
for the reinstatement" of the striking employees. In its reply of
August 2, 1941, the respondent stated, in substance, that because the
striking employees had refused to return to work their positions had
been permanently filled by new employees who would not be displaced
to afford positions for them. Thus, by this letter the respondent put
the Union upon notice that the striking employees were no longer
considered its employees and in fact, had been discharged and replaced
by new' employees. In discharging these employees, the respondent
unlawfully discriminated in regard to their hire and tenure of em-
ployment.14: By its letter of August 2, 1941, advising the Union of
this action, the respondent precluded any possibility of the striking
employees obtaining reemployment and thereby relieved them of the
necessity of making formal application, since such application, under
the circumstances, would have been a "useless gesture." 15
We find that the respondent on August 2, 1941, and thereafter, dis-
criminated against the striking employees listed in' Appendix A,
thereby discouraging membership in the Union and interfering with,
restraining, and coercing its. employees in the exercise of. the rights
guaranteed in Section 7 of the Act.
IV. ,THE EFFECT OF,THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent'set forth in Section III,
above, occurring in connection with the operations of the respondent
described in Section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to' labor disputes burdening and obstructing commerce
.and the free flow of commerce. ,
"Black Diamond Steamship Corp v ',National Labor Relations Board, 94 F. (2d) 875
(C. C. A. 2) cert. den. 304 U S. 579; Great Southern Trucking Co. v. National Labor
Relations Board, 127 F. ( 2d) 180 (C C. A. 4) ; El Paso Electric Co. v.-National Labor
Relations Board , 119 F. ( 2d) 581 (C. C A 5).
15Matter of Engle-Picher Mining & Smelting Company , a corporation, and Eagle -Picher
Lead Company, a corporation , and International Union of Mine, Mill & ' Smelter Workers,
Locals Nos 15, 17, 107, 108, and 111, 16 N L R B 727, mod and enf'd Eagle-Picher Min-
ing d Smelting Company v National Labor Relations Board, 119 F. (2d) 903 (C. C. A. 8).
- REGISTER PUBLISHING CO., LTD.
V. THE REMEDY
849,
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from such prac-
tices and to take certain affirmative action designed to effectuate the
policies of the Act. We have found that the respondent refused to
bargain collectively with the Union as the exclusive representative of
its employees in an appropriate bargaining unit. We shall, therefore,
order the respondent, upon request, to bargain with the Union as
such representative.
We have found further that the respondent discriminated against
the employees listed in Appendix A, attached hereto, because they had
gone on strike in protest against the respondent's unfair labor,prac-
tices. We shall, therefore, order the respondent to offer them immedi-,
ate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights and
privileges 16 The reinstatement shall be effected in the following
manner : All employees hired after April 30, 1941, the date of the
commencement of the strike, shall, if necessary to provide employment
for those who are to be reinstated,' be dismissed. If, however, by
reason of a reduction in force, there are not sufficient jobs immediately
available for the remaining employees, including those who are to be
reinstated, all available positions shall be distributed among such re-
maining employees in accordance with the respondent's usual method
of reducing its force, without discrimination against-any employee
because of his union affiliation or activities, following a system of
seniority to such extent as has heretofore-been applied in the conduct
of the respondent's business. Those employees thus laid off, for
whom no employment is immediately available, shall be placed upon
a preferential list prepared in accordance with the principles set forth
in the previous sentence and shall, thereafter, in accordance with such
list, be offered employment as it becomes available and before other
persons are hired for such work. We will further order that the
respondent make whole the employees listed in Appendix A, for,.any
loss of pay they may have suffered by reason of the respondent's dis-
crimination against them by payment to each of them of a sum of
16 Our order requiring reinstatement and back pay is based not only upon the fact that
such an order is appropriate to remedy the respondent 's unfair labor practices in discharg-
ing these employees , but also , and independently , upon the ground , that since the strike
was caused and prolonged by the respondent ' s refusal to bargain collectively, an order
requiring reinstatement with back pay is appropriate to effectuate the policies of the
Act. National Labor Relations Board v American Manufacturing Co , 106 F (2d) 61
(C. C. A 2) aff'd 309 U S 629; National Labor Relations Board V. Acme-Evans Co.
(C C. A. 7) decided June 15, 1942; Matter of McKaig Hatch Inc and Amalgamated Asso-
ciati,on of Iron, Steel, and Tin Workers etc, 10 N . L R B. 33; Matter of Western Felt
Works, a corporation and Textile Workers O)ganz ing Committee, etc, 10 N L R B 407.
487498-42-vol. 44-54
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
money equal to the amount which he would normally have received as
wages from August 2, 1941; to the date of the respondent's offer of
reinstatement, or placement on a preferential list, less his net
earnings," if any, during such period.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Santa Ana International Typographical Union No. 579 is a
labor organization, within the meaning of Section 2 (5) of the Act.
2. All employees in the composing room of the respondent's Santa
Ana plant, at all times material herein, constituted and now consti-
tute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. Santa Ana Typographical Union No. 579 was on March 1, 1940,
and at all times since has been the exclusive representative of all the
employees in such unit for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Santa Ana Typograph-
ical Union No. 579 as the exclusive representative of its employees in
the appropriate unit, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment
of the employees listed in Appendix A, thereby discouraging member-
ship in the Union, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section,8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, the respondent
llas, engaged, in and is engaging in unfair labor$.practices,^ within the
meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of the
Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
"By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incuired by an employee in connection with obtaining work and woiking else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity , of his seeking employment elsewhere e, See,Matter
of Crossett Lumber Compaihj and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R . B 440 Monies
ieceived for work performed upon Federal, State, county, municipal, or other work- relief
projects shall be considered as earnings . See Republic Steel Corporation v National Labor
Relations Board, 311 U S 7
REGISTER PUBLISHING CO., LTD. 851
the National Labor Relations Board hereby orders that the respondent,
Register Publishing Co., Ltd., Santa Ana, California, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Santa Ana International Typo-
graphical Union No. 579 or any other labor organization of its em-
ployees by discharging, refusing to reinstate, or in any other manner,
,discriminating in regard to hire and tenure of employment or any
term or condition of employment of any of its employees;
(b) Refusing to bargain collectively with Santa Ana International
Typographical Union 579 as the exclusive representative of all em-
ployees in the composing room of the respondent's Santa Ana plant;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right of self-organization, to form,
join, or assist labor organizations, to bargain. collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the followingaffirmative action which the-Board finds will,
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Santa Ana Interna-
tional Typographical Union No. 579 as the exclusive, representative of
.all the employees in the composing room of the respondent's Santa
Ana plant in respect to rates of pay, wages, hours of employment, and
,other conditions of employment;
(b) Offer to'the employees listed in Appendix A, immediate and
-full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges,
such offer to be effected in the manner provided for in the section
.entitled "The remedy," placing those employees for whom no employ-
ment is immediately available upon a preferential list in the manner
therein set forth, and thereafter offer them employment as it becomes
available ;
(c) Make whole the employees listed in Appendix A for any loss
of pay they may•have suffered by reason of respond'ent's discrimina-
tion against them by payment to each of them of a sum of money equal
to that which he normally would have earned as wages from August 2,
1941, to the date of the offer of reinstatement, or placement on a prefer-
ential list, less his net earnings during said period;
(d) Post immediately in conspicuous places at its Santa Ana plant
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating (1) that the
-respondent will not engage in-the conduct from which it is ordered
to cease and desist in paragraphs 1 (a), (b), and (c) of this Order;
852 DECISIONS OF NATIONAL LABOR ` RELATIONS BOARD
(2) that the respondent will take the affirmative . action set forth
-in-paragraphs 2 (a), (b), and ( c) of this Order; and ( 3) that its
employees , are free to become or remain members of Santa Ana In-
ternational Typographical Union No. 579 , and the respondent will not
discriminate against any employees because of membership or activity
in that organization;
' (e) Notify the Regional Director for the Twenty -first- Region in
writing within ten (10 ) days from the date of this Order what steps
the respondent has taken to comply herewith.
CHAIRMAN MILLrs took no part in the consideration of the above-
Decision and Order.
APPENDIX A'
A. L. Berkland
F. L. Berkland
C. W. Brakeman
William O. Bray
C. J. Bronzen
Charles Clayton
G. W. Duke
E. W. Ellis
W. H. Fields
G. L. Hawk
J. W. Jones
L. C. McKee
J. W. Parkinson
J. H. Patison
J. A. Sherwood
V. C. Shidler
J. E: Swanger
E. Y. Taylor
i