San Diego Web Pressmens'

National Labor Relations Board - Board Decisions

Apr 18, 1972

196 N.L.R.B. 412 (N.L.R.B. 1972)

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Diego Newspaper Web Pressmen's Union No . 48 TRIAL EXAMINER'S DECISION
and San Diego Typographical Union No. 221 (Pub-
lishers' Offset, Inc.) and Jones, Jones and Jones
San Diego Stereotypers' Union No. 82 (Publishers'
Offset, Inc.) and Jones, Jones and Jones
San Diego Newspaper Web Pressman 's Union No. 48
and San Diego Typographical Union No. 221; and
San Diego Stereotypers' Union No. 82 (Publishers'
Offset, Inc.) and International Union of Dectrict 50,
Allied & Technical Workers of the U.S. & Canada.
Cases 21-CC-1316, 21-CP-257, 21-CC-1318, 21-
CP-260, and 21-CC-1319
April 18, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On December 14, 1971, Trial Examiner Stanley
Gilbert issued the attached Decision in this proceed-
ing. Thereafter, Respondents filed exceptions and a
supporting brief, and Intervenor Publishers' Offset,
Inc., filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions 2 and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Respondents, San Diego Newspaper Web Pressmen's
Union No. 48; San Diego Typographical Union No.
221; and San Diego Stereotypers' Union No. 82, their
officers, agents, and representatives, shall take the ac-
tion set forth in the Trial Examiner's recommended
Order.
' In finding that Respondent violated Section g(bx4)(B) by picketing Pub-
lishers' Offset, we rely on the fact that said picketing was, at least in part,
conducted in furtherance of Respondents ' primary dispute with North
Shores Publishing Corporation.
2 In agreeing with the Trial Examiner that General Extrusion Company,
Inc., 121 NLRB 1165, applies to a question of contract bar and is not
applicable to the instant case , we also note that in any event the holding of
that case would not render invalid any election or resulting certification
STATEMENT OF THE CASE
STANLEY GILBERT . Trial Examiner : Based on charges filed
by Jones, Jones and Jones, in Cases 21-CC-1316 and 21-
CP-257, on June 9 , 1971, charges filed by Jones, Jones and
Jones in Cases 21-CC-1318 and 21-CP-260 on June 15,
1971, and the charge in Case 21-CC-1319 filed on June 15,
1971, by International Union of District 50, Allied & Tech-
nical Workers of the U.S. & Canada , hereafter referred to
as District 50, the consolidated complaint herein was issued
on June 29, 1971 . The complaint alleges that Respondents,
herein referred to as Pressmen , Typographers, and Stereo-
typers, violated Section 8(b)(4)(i) and (iiXB) of the Act and
Section 8(b)(4Xi) and (ii)(C) of the Act as well as Section
8(bX7)(B) of the Act.
Respondents by their answer deny that they committed
the unfair labor practices alleged in said complaint and set
forth two affirmative defenses.
Pursuant to notice, a hearing was held in San Diego,
California, on July 20-23 and 229, 1971, before this Trial
Examiner. On October 13, 1971, briefs were received from
the General Counsel , the Intervenor and Respondents
which have been carefully considered.i
Upon the entire record 2 in this proceeding and from my
observation of the witnesses as they testified , I make the
following:
FINDINGS OF FACT
I THE BUSINESSES OF THE EMPLOYERS INVOLVED HEREIN
Publishers' Offset, Inc., hereinafter referred to as Pub-
lishers' Offset, is a California corporation with its principal
office and plant in San Diego, California, where it has, since
on or about May 1, 1971, been engaged in the printing of
newspapers, catalogues, circulars, fliers, and other mate-
rials. During the calendar year commencing on or about
May 1, 1971, Publishers' Offset in the course and conduct
of its business operations has purchased and received, and
will purchase and receive, paper and paper products valued
in excess of $50,000 from suppliers located outside the State
of California.
Publishers' Offset is, and at all times material herein has
been, an employer engaged in commerce and in an industry
affecting commerce within the meaning of Section 2(6) and
(7) of the Act, a person within the meaning of Section
8(b)(4Xi) and (ii) of the Act, and an employer within the
meaning of Section 8(b)(4Xi) and (ii)(B) of the Act.
Three other entities were involved in this proceeding in
litigating the unfair labor practices and the affirmative de-
fenses , North Shores Sentinel, North Shores Publishing
Corporation, and NTS Development Corporation. With re-
spect to North Shores Sentinel and North -Shores Publishing
Corporation, the complaint alleges and it is found as for
lows:
i By letter dated November 9, 1971, Respondents , in effect, filed a supple-
mental brief . Thereafter, General Counsel filed a motion to quash Respon-
dents' aforesaid letter (pointing out that it was untimely filed) to which
Respondents filed their opposition . While it appears that General Counsel's
motion is well-founded , it is noted that the Trial Examiner has long been
aware of the case cited by Respondents in said letter , and, if he believed it
to be applicable to the issues herein , he would have relied on it, even if it had
not been cited to him.
2 Resp. Exh. 44 is unproperly included in the record . Although it was
received in evidence, the ruling receiving it was subsequently reversed.
196 NLRB No. 57
SAN DIEGO WEB PRESSMENS' 413
At all times material herein, Clinton D. McKinnon,
D. L. Smerdon and Triple Mac Corporation, d/b/a
North Shores Sentinel, -herein called Sentinel, have
been engaged in the publication of a newspaper in the
San Diego area . Sentinel annually derives gross reve-
nues in excess of $1 million and subscribes to various
interstate news service.
Prior to on or about May 30, 1971, the Sentinel news-
paper was printed by North Shores Publishing Corpo-
ration, herein called North Shores, a related enterprise.
Sentinel and North Shores are now, and each of them
is, and at all times material herein have been, a person
engaged in commerce or in an industry affecting com-
merce within the meaning of Section 8(b)(4)i) and
(ii)(B) of the Act.
With respect to the above allegations, Respondents, by
their answer, admit only that "the Sentinel gross volume of
business meets legal and administrative jurisdictional re-
quirements ." In their first affirmative defense, the Respon-
dents allege that the Sentinel, North Shores Publishing
Corporation, Publishers' Offset, Inc., and NTS Develop-
ment Corporation, hereinafter referred to as NTS, "consti-
tute one employer or joint employers" within the meaning
of the Act 3 It appears from the record that NTS is a corpo-
ration and that for the period from approximately Septem-
ber 1970 to May 1, 1971, it operated the offset printing plant
which Publishers' Offset is operating and has been operat-
ing since May 1, 1971.4
II. THE LABOR ORGANIZATIONS INVOLVED HEREIN
As is admitted by the Respondents , each of them is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
District 50 is a labor organization within the meaning of
Sections 2(5) and 8(b)(4)(C) of the Act .5
III. THE UNFAIR LABOR PRACTICES
A. Chronology of Events and Background Information
For a number of years Sentinel has published a newspa-
per called the North Shores Sentinel which, up to May 27,
971, was printed by North Shores . As above indicated,
Sentinel is a partnership composed of the following part-
ners : Clinton McKinnon , Denton Smerdon, and Triple
Mac Corporation .6 North Shores was a letterpress printing
company with a plant on Garnet Avenue in San Diego
which ceased operations near the end of May 1971. Prior
thereto , it carried out all of the mechanical work required
in the printing of Sentinel's newspaper . McKinnon was
president of North Shores and owned- p1,800 shares thereof
and Smerdon was secretary and owned the remaining 500
shares . Sentinel's offices have been and are located in the
same building which was occupied by North Shores. For a
good number of years, Respondents represented bar gaining
units of various classifications of the employees of North
Shores engaged in the printing operations . (There is nothing
3 This allegation is considered hereinbelow.
4 The transfer of the printing plant is set forth in more detail hereinbelow.
Although Respondents denied the allegation in the complaint that Dis-
trict 50 is a labor organization within the meaning of Sec. 8(b)(4)(C) of the
Act, it appears that there is no merit to this denial in view of its certification
by the Board as the bargaining representative of employees of NTS and
subsequently of Publishers ' Offset , as set forth hereinbelow.
6 A California corporation which is owned by McKinnon, his wife, and
three of his children.
in the record with respect to the editorial operations of
Sentinel).
Respondents contend that Sentinel, North Shores, NTS,
and Publishers' Offset are joint employers or a single em-
ployer within the meaning of the Act. Of the abovemen-
tioned four entities, only Publishers' Offset is a party to this
proceeding (by reason of its intervention herein). While it
is noted that the record would support a finding that Senti-
nel and North Shores could appropriately be considered
joint employers or a single emp oyer,7 such a finding would
be of little significance as a matter of Respondents' defense
since , as stated hereinbelow, the record will not support a
finding that they, together with NTS and Publishers Offset,
or either of them, are joint employers or a single employer.
In the latter part of 1969, Norman T. Seltzer, president of
NTS (which is a San Diego based investment corporation
owned by Seltzer and his family), became interested in set-
ting up an offset printing business . In mid-October 1969,
NTS retained McKinnon as a "consultant" to establish such
a business, as set forth in a letter agreement dated October
15, 1969, from NTS and addressed to McKinnon.8
Thereafter, on behalf of NTS, McKinnon found a plant-
site on Convoy Street in San Diego (herein referred to as the
Convoy Street plant), apparently arranged for a corporation
(Broadmoor) owned by his sons to purchase the site and
erect a building to house the plant, purchased the necessary
offset printing equipment, and hired the key managerial
eo le for NTS. NTS leased the building from Broadmoor
andin the latter part of September 1970 it commenced
printing operations at said plant under the fictitious name
of "Publishers' Offset "9 It appears that about the same time
District 50 organized the employees at the Convoy Street
plant. District 50 filed a petition seeking to represent a unit
consisting of all of the production and maintenance em-
ployees of NTS at said plant. In September 1970 an election
was conducted by the Board in said bargaining unit, and,
on October 16, 1970, District 50 was certified by the Region-
al Director as the exclusive bargaining representative for the
aforesaid unit.
In September or October 1970, Seltzer asked McKinnon
to recommend a labor consultant and McKinnon recom-
mended Norman E. Jones. Seltzer employed Jones to repre-
sent NTS apparently to negotiate a labor agreement with
District 50 and instructed him to "touch base" with Mc-
Kinnon, so that he (Seltzer) "could be assured that the
7 For example, the operations of the two entities were interrelated , they had
common management and the letterhead used by North Shores apparently
was also the letterhead of Sentinel (it contained both the name of the printing
company and that of the newspaper) and thus they represented themselves
to be joint enterprises or a single enterprise.
Said agreement reads as follows:
N.T.S. Development Corporation will purchase certain equipment to
set up an offset printing plant operation . You have agreed to aid and
assist us as a consultant in the setting up of this matter, and in return
for this when this plant is established, we agree that such plant will
perform services for any newspaper entity in which you have an interest
at our exact cost of production plus 10% in the event such work is moved
into our new plant within two years after we open.
Furthermore , we agree that should we give a more favorable right to
any comparable other person , you will be given the benefit of such
reduced rate, or in other words, that no one will receive more favored
treatment.
Our obligation to maintain these rates will cease five (5) years follow-
ing the date in each case each newspaper entity is moved into our plant,
and should there be any discontinuance of our services for any entity
after we have first done work for them for any reason whatsoever not
our fault, then our obligation to maintain these rates for such entity shall
thereupon cease.
9 It should be noted that the name Publishers' Offset as used hereinafter
is intended to refer only to the corporation which , as aforementioned, took
over the operation of the Convoy Street plant on May 1, 1971.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract as submitted was a practical agreement." On or
about February 1, 1971, NTS and District 50 entered into
a collective-bargaining agreement for the aforementioned
certified unit.
In addition to the above-outlined activities which Mc-
Kinnon engaged in on behalf of NTS, McKinnon also as-
sisted NTS in obtaining printing business and arranged the
transfer of the printing of the La Jolla Light -Journal to the
NTS plant. Said newspaper is published by a corporation in
which McKinnon owns 75 percent of the stock.
In the early part of 1971 , pursuant to discussions of vari-
ous interested individuals , including McKinnon and Selt-
zer, a corporation was formed , named Publishers ' Offset,
Inc., and on May 1, 1971, said corporation took over the
operation of the Convoy Street printing plant which had
been previously o rated by NTS under the name of "Pub-
lishers Offset .' 10 On or about May 1, 1971, NTS assigned
its lease on the Convoy Street premises to Publishers ' Offset
and leased its printing equipment to Publishers ' Offset. On
May 27, 1971, pursuant to a petition to amend the certifica-
tion of District 50, a decision and amendment of certifica-
tion was issued by the Regional Director amending the
certification by changing the name of the employer from
NTS to Publishers' Offset.
In October 1970, the board of directors of North Shores
decided to dissolve the company which decision was appar-
ently reaffirmed by it in January 1971. McKinnon credibly
testified to the reasons for the decision as follows:
A. We were faced with a press that had broken down
several times during the past 12 months and delayed
the delivery of our newspaper . Repairing the press is
very expensive . We had obsolete equipment in the
composinroom , and in the stereotype department.
We were faced with the unpleasant fact that either we
would have to build a brand new plant at a cost per-
happs of a half million dollars or more, or find some
other means of taking care of the printing work for the
Sentinel.
After a lot of consideration, and my age of 65 and Mr.
Smerdon 's age of 63, we did not feel justified in going
into debt to replace the plant.
Furthermore , it was indicated that our customers, our
advertisers , were demanding or requesting very strong-
ly more modem equipment in the way of offset print-
ing, which would relieve them of engraving-the cost
of engravings, and also provide for them a better prod-
uct.
These factors considered, we simply felt-Mr. Smer-
don and I-that as stockholders it would be wiser for
us to wind up our affairs in North Shores Publishing
Company and go out of business and let the Sentinel
find another place to print.
(At the time of the hearing North Shores Publishing Com-
pany had been dissolved, its press had been sold for salvage
and the composing room and stereotype equipment was
advertised for sale)
On January 4, 1971, North Shores , by letter, notified each
of the Respondents of the decision to dissolve the company
and cease its printing operations . It was indicated that
Sentinel's newspaper would have to be printed at some oth-
er plant and that it was not known when the decision would
be put into effect . On February 2, 1971, Ray Butler, presi-
dent of Typographers, wrote a letter to R. R. Richardson,
secretary-treasurer of the San Diego Imperial Counties Cen-
tral Labor Council , in which he stated that he had been
informed that there would be "changes" in the "North
Shores Sentinel operation" and that there is "a chance that
the work will be moved to a plant on Convoy Street ...
under contract with United Mine Workers Dist . 50." He
also stated as follows:
We ask that the Central Labor Council support the
position of San Diego Typographical Union Na. 221 in
our effort to maintain work controlled by Mr. McKinnon
in composing rooms under contract with the Typographi-
cal Union, and so inform McKinnon of your action by
letter. [Emphasis supplied.]
Starting on February 23, 1971, there were meetings various-
ly attended by (on the one hand) Richardson and represent-
atives of one or all of the Respondents and (on the other
hand) either McKinnon or Seltzer or both of them. The
parties introduced a considerable amount of testimony and
evidence in the record with respect to these meetings and
also with respect to correspondence between them over a
period of 5 or 6 months . The meetings and the correspon-
dence, to a great extent , were concerned with the closin
down of North Shores and the transfer of the printing of
Sentinel's newspaper. (Certain details thereof and conclu-
sions with respect thereto are set forth hereinbelow.)
On May 27, 1971, the three Respondents agreed that they
would work together "as a team on the common problem'
of the closing down of North Shores' plant and transfer of
the printin of Sentinel 's newspaper to the Convoy Street
plant (of Publishers ' Offset). On the morning of June 2,
1971, Respondents conducted picketing at the premises of
Publishers' Offset with signs containing various legends:
One legend was as follows:
PUBLISHERS ' OFFSET
UNFAIR
WEB PRESSMEN 'S UNION NO. 48;
STEREOTYPERS' UNION NO. 82
10 The officers and stockholders of Publishers' Offset are as follows:
Clinton McKinnon 200 shares
Norman T . Seltzer 350 shares
David Garfield 250 shares
Bill Pelcher (Pres ., until 6/12/71) 150 shares
William Evans 50 shares
J.B. David (pres. from 6/12/71) none
Charles Hawkins (VP) none
Leah K. Dondero (sec .-treas.) none
In addition, $100,000 in cash was loaned to Publishers ' Offset, as part of its
initial capitalization , by the following individuals-
Norman T . Seltzer $15,000
David Garfield 15,000
William Evans 10,000
Clinton McKinnon 10,000
Denton Smerdon 20,000
Bill Pelcher 10,000
La Jolla Publishing, Inc. 20,000
A second legend was as follows:
SAN DIEGO TYPOGRAPHICAL UNION NO. 221
A third legend was as follows:
PUBLISHERS ' OFFSET
DOES NOT PAY
THE PREVAILING
WAGES
OF THE INDUSTRY
The above-described signs were withdrawn toward the end
of the morning , and thereafter , until July 7, the picketing at
Publishers ' Offset was conducted with signs reading:
SAN DIEGO WEB PRESSMENS' 415
NORTH SHORES SENTINEL
UNFAIR
SANCTIONED BY THE CENTRAL LABOR
COUNCIL
It was stipulated by the parties that by reason of the picket-
ing certain deliveries were not made to Publishers' Offset by
normal suppliers of that Company. The picketing ceased on
July 7 when the United States District Court enjoined said
action.
THE ISSUES
It is alleged in the complaint that Respondents engaged
in conduct violative of Section 8(b)(4)(i) and (ii)(B) and (C)
of the Act."
The General Counsel contends that the record will sus-
tain findings that Publishers' Offset is a neutral employer in
Respondents' labor disputes with the primary employer
(Sentinel and/of North Shores); that the Respondents'
picketing of Publishers' Offset "induced or encouraged" its
employees within the meaning of Section 8(b)(4)(i) of the
Act; that said picketing "threatened, coerced and re-
strained" Publishers' Offset within the meaning of Section
8(b)(4)(ii) of the Act; that objects of the picketing were to
force or require Publishers' objects to cease doing business
with Sentinel and Publishers' Offset's suppliers to cease
doing business with it, within the meaning of Section
8(b)4)(B) of the Act; and that a further object of the picket-
ing was to force or require Publishers' Offset to recognize
or bargain with the Respondents as representatives of its
employees despite the fact that District 50 had been certi-
fied as a representative of said employees within the
meaning of Section 8(b)(4)(C) of the Act.
On the other hand, Respondents contend that Publishers'
Offset is not a neutral employer. In support of said conten-
tion, they argue that the record will support a finding that
Publishers' Offset, Sentinel , North Shores, and NTS are a
single employer or joint employers, and, alternatively, that
Publishers' Offset is an "ally" of Sentinel and North Shores
(a single or joint employer) by reason of the fact that in
printing Sentinel newspaper it was doing "struck work."
Respondents further contend, in effect, that their sole
purpose in picketing was to publicize the unfair labor prac-
tices of North Shores and Sentinel (as a single or joint
The pertinent parts of said section of the Act are as follows:
8(b) It shall be an unfair labor practice for a labor organization or its
agents ...
4(i) to engage in, or to induce or encourage any individual employed by
any person engaged in commerce or in an industry affecting com-
merce to engage in, a strike or a refusal in the course of his employ-
ment to use , manufacture , process, transport, or otherwise handle or
work on any goods , articles , materials, or commodities or to perform
any services;
(ii) to threaten, coerce , or restrain any person engaged in commerce or
in an industry affecting commerce, where in either case an object
thereof is:
(B) forcing or requiring any person to cease using , selling, handling,
transporting , or otherwise dealing in the products of any other pro-
ducer, processor, or manufacturer, or to cease doing business with any
other person , or forcing or requiring any other employer to recognize
or bargain with a labor organization as the representative of his em-
ployees unless such labor organization has been certified as the repre-
sentative of such employees under the provisions of Section 9 ...
(C) forcing or requiring any employer to recognize or bargain with a
particular labor organization as the representative of his employees if
another labor organization has been certified as the representative of
such employees under the provisions of Section 9 ....
employer) and that they did not have as an object of their
picketing to force or require Publishers' Offset to recognize
or bargain with them as representatives of its empployees.
Further, the Respondents attempted to contend that Dis-
trict 50 had not been validly certified as the representative
of Publishers' Offset. However, the Respondents were not
permitted to litigate this contention in this Se size
except to introduce evidence with respect to the size of the
bargaining unit at the time of the election (September 1970)
and at the time of the picketing (June and July 1971).
As to the issue of whether Publishers' Offset is a neutral
employer, the Respondents contend that by reason of Mc-
Kinnon's activities on behalf of NTS, his direct and indirect
financial interest in Publishers' Offset and the authority he
exercised with respect to their labor policies, Publishers'
Offset, together with NTS, Sentinel and North Shores,
should be considered as a single employer or that the four
should be considered as joint employers.
As stated hereinabove, NTS, which operated the Convoy
Street plant under the name of Publishers' Offset, transfer-
red the operations of said plant, on May 1, 1971, to a newly
formed corporation named Publishers Offset, Inc., by as-
signing to said corporation its lease of the premises and by
leasing its equipment to said corporation. It appears that
NTS is, and was, intended to be solely an investment com-
pany (rather than an operator of any enterprise) and that it
had other interests besides its interest in the Convoy Street
plant. Therefore, in order to rid itself of the operating func-
tions and to enable McKinnon and others to invest in the
operation of the Convoy Street plant, the new corporation
was formed. There was no material change in the operating
personnel, and it is apparent that Publishers' Offset was not
an "arms length purchaser" as successor to NTS with re-
spect to the operation of the Convoy Street plant. However,
it does not appear appropriate to conclude that Sentinel and
North Shores are a single employer or joint employers with
Publishers' Offset (as successor to NTS).
While McKinnon did play a key role, as a "consultant,"
in obtaining the Convoy Street plant premises, the equip-
ment, and the key managerial employees of NTS, it appears
that his actions were sub^ e•ct to approval by Seltzer as presi-
dent of NTS. While McKinnon was consulted from time to
time by Jones, who, as labor consultant for NTS, negotiated
its labor contract with District 50, it does not appear appro-
priate to conclude that McKinnon dictated the labor rela-
tions policies of NTS. It is further found that McKinnon did
not, either directly or indirectly, have any financial interest
12 It appears that the basis for this contention is the substance of an 8(a)(2)
charge filed by the Respondents in Case 21-CA-1091 on June 21, 1971. It
also appears that said charge was dismissed by the Regional Director and
said dismissal was appealed to the General Counsel. It further appears that
the General Counsel deferred action upon the appeal pending the disposition
of this proceeding . Aside from the question of whether or not it is appropriate
to litigate the validity of a certification in a collateral proceeding such as this
and from the question of the appropriateness of raising matters by way of
defense which were the subject of a charge that has not been found meritori-
ous, it appears that the 8(a)(2) charge , even if it were meritorious, cannot
constitute a defense in this proceeding, since said charge was filed more than
6 months after the certification and the conduct engaged in by Publishers'
Offset or NTS subsequent to the certification (within the 10(b) period) could
not have affected the validity of the certification and would , therefore, not
constitute a defense in this proceeding. Lawrence Typographical Union No.
570, 158 NLRB 1332,1340. In comparable cases arising under Sec. 8 (b)(7XA)
of the Act, the Board has refused to permit unions charged with picketing
violations to invoke as a defense the invalidity of an incumbent union's initial
recognition in circumstances where Sec . 10(b) would have precluded a direct
challenge to the legality of such recognition . Roman Stone Co., 153 NLRB
659; Blue Diamond Coal Co., 166 NLRB 271, enf . sub nom. N.L.R.B. v.
District 30, Mine Workers of America, 422 F.2d 115 (C.A. 6), cert. denied 398
U.S. 959.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in NTS, and that he had no control over its operations
except in an advisory capacity. Also, it is noted that there
was no business relationship between Sentinel and North
Shores, on the one hand, and NTS on the other. It is further
noted that North Shores' operations consisted principally of
printing Sentinel's newspaper, whereas it appears that Pub-
lishers' Offset had a considerable amount of other printing
after May 29, 1971. (It was not until May 29 or 30, 1971, that
Publishers' Offset commenced printing Sentinel 's newspa-
per.) While McKinnon did acquire an interest in Publishers'
Offset it was a minority interest and he had no voice in its
management except as a member of its board of directors.
It does not appear, in the circumstances, that it can be
said that Sentinel and North Shores are single or joint em-
ployers with NTS and lubsequently Publishers' Ofset, since
it does not appear that their operations were sufficiently
integrated and commonly owned and controlled to warrant
such a finding. Los Angeles Newspaper Guild (Hearst Corpo-
ration), 185 NLRB No. 25, enfd. 443 F.2d 1173 (C.A. 9);
Miami Newspaper Printing Pressman Local No. 46 (Knight
Newspapers, Inc.), 138 NLRB 1346, enfd. 322 F.2d 405 (CA.
D.C.)
An additional argument advanced by the Respondents in
opposing a finding that Publishers' Offset is a ' neutral em-
ployer" is that Publishers' Offset is an "ally" of North
Shores and Sentinel because it was doing "struck work" in
printing Sentinel 's newspaper. It cannot be said that by
printing Sentinel 's newspaper, Publishers' Offset was doin
work which would have been performed by employees of
North Shores but for a strike against that Company. The
printing of said newspaper by Publishers' Offset did not
commence until after the decision to close down the opera-
tions of North Shores and dissolve the company was put
into effect at the end of Ma'. Said printing work was not
contracted out to Publishers Offset in order to overcome
the effect of a strike of North Shores' employees . The print-
ing of Sentinel 's newspaper cannot, in the circumstances, be
equated with "struck work" and it would be inappropriate
to conclude that Publishers' Offset became an 'ally" of
North Shores and Sentinel by reason of its acceptance of the
work of printing Sentinel 's newspaper . Warehouse Union
Local 6 (Hershey Chocolate Corporation), 153 NLRB 1051.
It is concluded that Publishers ' Offset is a "neutral em-
ployer" in Respondents' labor dispute with Sentinel and
North Shores.
It is well established that picketing for a proscribed object
constitutes "inducement or encouragement" of individuals
within the meaning of Section 8(b)(4Xi) and "coercing or
restraining" of persons within the meaning of Section
8(bx4Xii). In addition , the record clearly demonstrates that
the Respondents were , by their picketing, attempting to
induce or encourage employees of Publishers ' Offset to
withhold their services from their employer. Shortly prior to
the picketing , Respondent Union (Typographers) sent a let-
ter to employees of Publishers' Offset urging them to quit
their jobs (and join the Typographers Union). Similar letters
were sent by the other two Respondent Unions during the
course of the picketing . The record also clearly demon-
strates that thepicketing coerced and restrained Publishers'
Offset, not only by the aforementioned inducement and
encouragement of its employees , but also caused some of
the suppliers of Publishers ' Offset to cease their normal
deliveries to that Company.
In the course of the hearing , Respondents asserted that
North Shores and Sentinel had committed various unfair
labor practices which were made the subject matter of
charges filed by said Unions in Cases 21-CA-10037 and
21-CA-10041 (1-2).13 As aforementioned , Respondents in-
troduced a considerable amount of testimony and evidence
into the record of the meetings and correspondence over a
period of 5 or 6 months after the decision to eventually close
down North Shores was communicated to the Respondents.
It was ruled that such testimony and evidence would be
received, not for the purpose of determining whether there
were unfair labor practices committed by North Shores and
Sentinel as alleged in the aforementioned charges , but mere-
ly for the purpose of demonstrating whether or not the sole
object of the picketin was to ublicize said alleged unfair
labor practices. The General Counsel also introduced such
testimony and evidence in the record to support the allega-
tions in the complaint as to the objects of the picketing (to
force or require Publishers' Offset to cease doing business
with Sentinel and to obtain recognition by Publishers' Off-
set as bargaining representatives of its employees).
The record discloses that after Respondents became
aware of the decision to close down North Shores' opera-
tions they, through their representatives and through Rich-
ardson,l attempted to accomplish one of several
alternatives, including: (1) abandonment of the decision to
close down North Shores and to obtain the continuation by
North Shores of its printing of Sentinel's newspaper; (2) a
transfer of the printing of the newspaper to a shop in which
the employees were represented by the Respondent Unions;
and (3) the hiring by Publishers' Offset of the employees of
North Shores (whom they represented and who had lost
their jobs by the closing down of North Shores' plant). In
addition, they attempted to destroy District 50's "foothold"
as a labor organization in the San Diego area by its repre-
sentation of Publishers' Offset employees, as evidenced by
the credited testimony of McKinnon and Seltzer to state-
ments made to them with respect to continuing recognition
of District 50.
It is concluded the Respondents had as objects of their
picketing forcing or requiring Publishers ' Offset to cease
doing business with Sentinel , and forcing or requiring Pub-
lishers' Offset's suppliers to cease doing business with it. It
is further concluded that said picketing violated Section
8(bX4)(i) and (ii)(B) of the Act.
As to the question of whether said picketing also violated
Section 8(b)(4)(i) and (ii)(C) of the Act the following issues
must be resolved : whether or not Respondents ' picketing
had as an object that of obtaining their recognition by Pub-
lishers' Offset as the bargaining representatives of said
Company's employees, and whether District 50 had been
certified as the bargaining representative of said employees.
With respect to the latter issue , there is no dispute that the
Regional Director did certify District 50 after an election
held by the Board for the bargaining unit of the employees
of Publishers' Offset.15 As above stated, the Respondents
13 The charges in said cases were dismissed by the Regional Director and
his action in dismissing said charges was appealed to the General Counsel.
Action on the said appeal was deferred pending disposition of this proceed-
ing.
Respondents argue that they are not bound by any statements made by
Richardson , that he was only acting in his capacity of Secretary of the
Central Labor Council . Richardson was called in by Respondents to inter-
cede with McKinnon and Seltzer with respect to the closing down of North
Shores and the transfer of the punting of Sentinel 's newspaper to NTS.
Furthermore , representatives of Respondent were silent and did not disavow
his statements which were made in their presence . In the circumstances, it
appears appropriate to find that he was speaking on their behalf and that they
tacitly approved this statements . Yuba, Sutter & Colusa Counties Building &
Construction Trades Council, AFL-CIO, et at., 189 NLRB No. 70, TXD.
Consequently, Richardson 's statements as well as the conduct of Respon-
dents were considered in determining whether any of Respondents ' objects
in picketing were proscribed by the Act (Sec. 8(bx4XB), and (C), and (7XB)).
As noted hereinabove , the certification of District 50 as representative
SAN DIEGO WEB PRFSSMFNS' 417
were not permitted to litigate the validity of said certifica-
tion in this proceeding, and, furthermore, as noted hereina-
bove, any unfair labor practices of NTS , Publishers' Offset's
predecessor , which might have affected the validity of the
election upon which the certification was based would have
occurred beyond the 10(b) period and, therefore , cannot be
raised as a defense in this proceeding.16
Respondent also attempted to attack the validity of the
election and the resulting certification on the ground that
the size of the unit at the time of the aforementioned elec-
tion (September 1970) was approximately 14 or 15 and that
at the time of the picketing it was approximately 56 (in June
of 1971 ). Based on the size of the bargaining unit at the time
of the election as compared to its size at the time of the
picketing (at the time of the election less than 30 percent of
the bar aining unit complement at the time of the picket-
ing), Respondents argue
t
hat the election was not valid and
rely in support of this contention on the General Extrusion
Rule, 121 NLRB 1165 . As Respondents point out in their
briefs, said rule applies to the issue of whether an existing
contract will bar an election . 17 The above rule relied upon
by the Respondents is patently not applicable to this case
and the Trial Examiner is of the opinion that there is no
basis for extending such a rule to a situation where the
complement of the bargaining unit at the time of election
(upon which the certification is based) is less than 30 per-
cent of the complement of the bargaining unit at the time
picketing occurs.
It is, therefore , concluded that there is no basis for finding
that either the election of District 50 or its resulting certifi-
cation as the bargaining representative of the employees of
NTS (and subsequently Publishers ' Offset) was mvalld.
There remains the issue of whether or not the Respondents
had as an object of their picketing obtaining recognition from
Publishers'Offset as thebargainmg representatives of various
classifications of its employees . Based on the undisputed testi-
mony and evidence in the record and the credited testimony
of Seltzer and McKinnon it is found that Respondents were
seeking, among other things , to have Sentinel 's newspaper
published at a printing shop whose employees were repre-
sented by them or, if it were printed at the Convoy Street lant
of Publishers' Offset, to have its employees members ofptheir
respective union . Prior to the picketing, Respondents (either
directly or through Richardson) expressed their deep concern
that District 50 continued as the bargaining r epresentative of
said employees, and indicated that they would-have no oif ec-
tions to Sentinel's newspaper being panted at said plant the
employees were represented by them.18
of the employees of NTS was amended to change the name of the employer
to Publishers ' Offset.
16 Fn. 12, supra.
17 The rule, to quote Respondents ' brief, is that "a contract will bar an
election only if at least 30 percent of the complement at the time of the
hearing had been employed at the time the contract was executed, and 50
percent of the job classifications in existence at the time of the hearing were
in existence at the time the contract was executed."
is The following two excerpts of credited testimony of Seltzer and Mc-
Kinnon are some of the portions of the record which support these findings.
Seltzer testified (with respect to a meeting in March 1971 at which he,
McKinnon, and representatives of Respondents were present) as follows:
A. It was stated to me by Mr. Richardson , and again by the other
representative of labor present , that they were very upset and unhappy
that the printing plant at 5060 Convoy Street had been organized by
District 50.
They stated that as far as they were concerned Distract 50 was not a
legitimate Union , and that we were not duly and properly organized by
Furthermore, as found hereinabove,just prior to the pick-
eting and during the course of the picketing, Respondent
wrote letters to employees of Publishers' Offset which, in
effect, stated that their bargaining representative District 50
had obtained unsatisfactory terms and conditions of employ-
ment for them and urged them to quit their jobs and become
members of the respective-Respondent Unions.
In view of the above findings and based on the circum-
stances in this case it is inferred that Respondents had, as
an object of their picketing, recognition by Publishers' Off-
set as the bargaining representatives of its employees if
Sentinel's newspaper were to be continued to be printed at
Publishers' Offset plant. Cons uently, it is concluded that
Respondent violated Section 8(4)(i) and (ii)(C) of the Act
by pl cketing Publishers' Offset from June 2, 1971, to July 7,
It is further alleged in the complaint that picketing en-
gaged in by Respondent was violative of Section 8(b)(7)(B)
of the Act. 9 As found hereinabove, Respondent did picket
Publishers' Offset between June 2 and July 7,1971; Respon-
dent did have as an object of said picketing forcing or
requiring Publishers' Offset to recognize them as represent-
atives of its employees; and there is no basis for finding that
the election (in September 1970 which was less than 12
months prior to the picketing) of District 50 as the bargain-
ing representative of the employees of NTS (who subse-
quent[y became employees of Publishers' Offset) was
invalid. It is undisputed that none of the Respondents was,
them ; that is to say, District 50.
They advised us to walk away from our contract.
It was then stated to me in the presence of Mr. McKinnon and in the
presence of Mr. Butler and in the presence of Mr. Richardson that we
would be in all kinds of trouble if we did not get rid of District 50.
Taw. EXAMINER Who said this?
THE WnNass Mr. Richardson said this.
McKinnon testified (with respect to a subsequent meeting in April at which
he and Seltzer were present as well as representatives of the Respondents)
as follows:
A. Mr. Richardson again reiterated his deep concern about District
50 being in San Diego-that he felt that it was a renegade union, that
it certainly was not a member of the Central Labor Council, that it had
a reputation for being a raider union , and that they simply were not
going to have it in San Diego County or the City of San Diego ; and that
they would stop at no end to get it out of San Diego : and that if NTS
did not cooperate in that endeavor that NTS would be placed upon the
unfair list, with unpleasant results.
After that he excused himself and went over to another table, where
he had another engagement he said.
Thereafter, Mr. Seltzer and Mr. Butler and some of the others in
attendance discussed the consequences of District 50, and the fact that
the ITU and the Stereotypers and the Pressmen all felt that they should
be the representatives at the NTS plant, and were very unhappy that
they weren't, and that there could be no peace as far as NTS went if
some steps weren't taken to correct the situation.
19 Sec. 8(bx7)(B) provides, inter alga, as follows.
8(b) It shall be an unfair labor practice for a labor organization or its
agents ...
s
(7) to picket or cause to be picketed , or threaten to picket or cause to
be picketed , any employer where an object thereof is forcing or requir-
ing an employer to recognize or bargain with a labor organization as
the representative of his employees , or forcing or requiring the em-
ployees of an employer to accept or select such labor organization as
their collective bargaining representative, unless such labor organiza-
tion is currently certified as the representative of such employees:
a
(B) where within the preceding twelve months a valid election under
Section 9(c) of this Act has been conducted ....
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the time of the picketing, currently certified as a bargain-
mg representative of Publishers' Offset employees. Conse-
quently, it is concluded that by picketing Publishers' Offset,
as above stated, Respondents violated ection 8(b)(7)(B) of
the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondents set forth in
section III, above, occurring in connection with the opera-
tions of the Employer (Publishers' Offset, Inc.) 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
It having been found that the Respondents have engaged
in certain unfair labor practices, it will be recommended
that Respondents be ordered to cease and desist therefrom
and take certain affirmative action deemed necessary 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. Respondents violated Section 8(b)(4)(i) and (ii)(B) of
the Act by their picketing of Publishers ' Offset, Inc., from
June 2 to July 7 , 1971, with an object of forcing and requir-
ing Publishers' Offset, Inc., to cease doing business with
North Shores Sentinel and to force the suppliers of Pub-
lishers' Offset, Inc., to cease doing business with said Com-
p Respondents violated Section 8(bX4Xi) and (ii)(C) of
the Act by their picketing of Publishers ' Offset, Inc., be-
tween June 2 and July 7 , 1971, with an object of forcing or
requiring Publishers ' Offset , Inc., to recognize or bargain
with them as representatives of its employees despite the
fact that International Union of District 50, Allied & Tech-
nical Workers of the U.S. and Canada , had been certified
as the representative of said employees.
3. Respondents violated Section 8(b)(7)(B ) of the Act by
picketing Publishers ' Offset, Inc., from June 2 to July 7,
1971, with an object of forcing or requiring Publishers' Off-
set, Inc ., to recognize or bargain with them as representa-
tives of its employees despite the fact that a valid election
among said employees had been held within the preceedmg
12 months in which election District 50 had established its
ma Urity representation.
pon the foregoing findings of fact , conclusions of law,
and the entire record in this case , and pursuant to Section
10(c) of the Act , I hereby issue the following recom-
mended:20
with it.
(b) Picketing , causing to be picketed , or threatening to
picket Publishers ' Offset, Inc., where an object thereof is to
force or require Publishers ' Offset, Inc., to recognize or
bargain with them , or any of them, as the representatives or
representative of its employees , when International Union
of District 50, Allied Technical Workers of the U.S. and
Canada , or another labor organization , has been certified as
the representative of said employees.
(c) Picketing, causing to be picketed , or threatening to
picket Publishers' Offset , Inc., where an object thereof is to
force or require said Company to recognize or bargain with
them , or any of them, as the representatives or representa-
tive of its employees when within the preceding 12 months
a valid election under Section 9(c) of the Act has been
conducted which Respondents did not win.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Post in their respective business offices and meeting
halls copies of the attached notice marked "Appendix."
Copies of said notice , on forms provided by the Regional
Director for Region 21, shall , after being duly signed by
official representatives of the Respondents , be posted by the
Respondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicious places , including all places where notices to
their members are customarily posted . Reasonable steps
shall be taken by the Respondents to insure that said notices
are not altered , defaced , or covered by any other material.
(b) Mail to the Regional Director for Region 21 signed
copies of the aforementioned notice for posting by Pub-
lishers' Offset , Inc., if it be willing , in places where notices
to its employees are customarily posted . Copies of said no-
tice, to be furnished by the Regional Director for Region 21,
shall, after being signed by Respondents, as indicated, be
forthwith returned to the Regional Director for disposition
by him.
(c) Notify the Regional Director , Region 21 , in writing,
within 20 days from the receipt of this Decision, what steps
they have taken to comply herewith 22
20 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec. 102.48
of the Rules and Regulations be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
22 In the event that this Recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read : "Notify
the Regional Director for Region 21 , in writing, within 20 days from the date
of this Order, what steps the Respondents have taken to comply herewith."
ORDER
Respondents, San Diego Newspaper Web Pressmen's
Union No. 48, San Diego Typographical Union No. 221,
and San Diego Stereotypers' Umon No. 82, their officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Picketing, causing to be picketed, or threatening to
picket Publishers' Offset, Inc., where an object thereof is to
Force or, require Publishers' Offset, Inc., to cease doing busi-
ness with North Shores Sentinel or to force or require sup-
pliers of Publishers' Offset, Inc., to cease doing business
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket, cause to be picketed, or threaten
to picket Publishers' Offset, Inc., where an object there-
of is to force or require Publishers' Offset, Inc., to cease
SAN DIEGO WEB PRESSMENS'
doing business with North Shores Sentinel or to force
or require suppliers of Publishers' Offset, Inc., to cease
doing business with it.
WE WILL NOT picket, cause to be p'cketed, or threaten
to picket Publishers' Offset, Inc., where an object there-
of is to force or require Publishers' Offset, Inc., to
recognize or bargain with us, or any of us, as the repre-
sentatives or representative of its employees, when In-
ternational Union of District 50, Allied & Technical
Workers of the U.S. and Canada, or another labor
organization , has been certified as the representative of
said employees.
WE WILL NOT picket, cause to be picketed, or threaten
to picket Publishers' Offset, Inc., where an object there-
of is to force or require said Company to recognize or
bargain with us, or any of us, as the representatives or
representative of its employees where within the pre-
ceding 12 months a valid election under Section 9(c) of
the Act has been conducted which we did not win.
SAN DIEGO NEWSPAPER WEB
PRESSMEN 'S UNION No 48
(Labor Organization)
Dated By
(Representative) (Title)
Dated By
Dated By
419
SAN DIEGO TYPOGRAPHICAL UNION
No 221
(Labor Organization)
(Representative) (Title)
SAN DIEGO STEREOTYPERS' UNION
No 82
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014, Telephone
213-688-5229.