The Ann Arbor Press

National Labor Relations Board - Board Decisions

May 3, 1939

12 N.L.R.B. 640 (N.L.R.B. 1939)

In the Matter of HORACE G. PRETrYMAN AND ARTHUR J. WILTSE,
CO-PARTNERS , DOING BUSINESS AS THE ANN ARBOR PRESS and INTER-
NATIONAL TYPOGRAPHICAL UNION
Cases Nos. C-529 and B-692.-Decided May 3, 1939
Commercial Printing Industry-Interference , Restraint , and Coercion-Com-
pany-Dominated Union: direct sponsorship by employer ; assistance in formation
by supervisory officials ; use of plant facilities ; activities directed by employer ;
contrasting hostility of employer to outside union ; disestablished , as agency for
collective bargaining-Discrimination: discharge of seven employees for union
membership and activity ; charges of refusal to reinstate strikers dismissed, due
to lack of unconditional application for reinstatement-Unit Appropriate for
Collective Bargaining : craft unit of composing room employees ; history of bar-
gaining in industry and of organization in employer 's plant-Representatives:
proof of choice : membership data and signed designation list compared with
submitted list of employees in unit-Collective Bargaining : refusal to accord
recognition to union as exclusive bargaining agency of all employees in unit-
Strike: caused by employer 's unfair labor practices-Reinstatement Ordered:
of strikers , upon application ; also of discharged employees-Back Pay: awarded
from dates of discharge until time that discharged employees assumed position
of strikers that they would not go back to work without union agreement-
Investigation of Representatives : petition for dismissed , since findings on unit
and majority representation make consideration unnecessary.
Mr. George Bott, for the Board.
Mr. George Meader and Burke & Burke, by Mr. Rowan Fasquelle
and Mr. George Burke, all of Ann Arbor, Mich., for the respondents.
Mr. Harry Reifrin, and Mr. W. L. Whitney, of Detroit, Mich., for
the I. T. U.
Mr. Lewis M. Gill, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On April 16, 1938, International Typographical Union, herein
called the I. T. U., by Charles E. Lougheed, representative, trans-
mitted to the National Labor Relations Board, herein called the
Board, in Washington, D. C., a petition alleging that a question af-
fecting commerce had arisen concerning the representation of em-
12 N. L. R. B., No. 75.
640
HORACE G. PRETTYMAN ET AL. 641
ployees of Horace G. Prettyman and Arthur J. Wiltse, copartners
doing business as The Ann Arbor Press, herein called the respond-
ents, and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. The petition was accompanied
by a charge alleging that the respondents had engaged in and were
engaging in unfair labor practices within the meaning of the Act.
Pursuant to Article III, Section 10, and Article II, Section 37, of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, an order of the Board permitting the filing of the petition
and charge with the Board in Washington, D. C., was issued on April
19, 1938. On April 22, 1938, the Board, acting pursuant to Section
9 (c) of the Act and Article III, Section 10, and Article II, Section
37, of the said Rules and Regulations, ordered that an investigation
of the question concerning representation be conducted and that such
proceeding be consolidated with the proceeding based upon the
charges of unfair labor practices. On April 23, 1938, the Board
issued its complaint against the respondents, alleging that they had
engaged in and were engaging in unfair labor practices within the
meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and
(7) of the Act. The complaint and notice of hearing on the consoli-
dated cases were duly served upon the respondents, the I. T. U., and
the Independent Association of Ann Arbor Press Employees, Inc.,
herein called the Association, a labor organization allegedly dominated
and supported by the respondents.
With respect to the unfair labor practices, the complaint alleged
in substance (1) that the respondents had, since about September 1,
1937, dominated and interfered with the formation and administra-
tion of the Association and contributed financial and other support
thereto; (2) that on specified dates the respondents discharged 10
named employees, and have since refused to reinstate them, because
of their membership and activity in the I. T. U.; 1 (3) that on Feb-
ruary 16, February 19, March 7, and March 12, 1938, the respondents
refused to bargain collectively with the I. T. U., which represented
a majority of the respondents' employees in an appropriate unit;
(4) that the unfair labor practices as set forth caused a strike be-
ginning on February 18, 1938; and (5) that on March 7, 1938, the
respondents refused to reinstate the strikers, who had on March 4
requested reinstatement conditioned only upon the reinstatement of
the employees unlawfully discharged and the recognition of the I. T. U.
for purposes of collective bargaining.
'Virgil Brown , Sylvester Thorpe, John Liner , Edward Quirouet , Joseph Sobecki, David
Brown, Nicholas Chamblin , Louis Falstreaux , William Mattingly , G. Kerby Jennings. The
cases of Thorpe, Liner , and Quirouet were dismissed during the hearing upon motion
by counsel for the Board.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 29,1938, the respondents filed an answer to the complaint
denying the unfair labor practices charged and asserting that the
respondents were not subject to, the jurisdiction of the Board. The
respondents simultaneously filed a motion to dismiss the complaint
and a motion for suspension of the hearing which had been scheduled.
Pursuant to the notice, a hearing was held in Washington, D. C.,
from May 2, 1938, through May 12, 1938, before Frank Bloom, the
Trial Examiner duly designated by the Board. The Board and the
respondents were represented by counsel, and the I. T. U. by one of
its representatives. All participated in the hearing, and were af-
forded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Asso-
ciation was not represented by counsel, but its president appeared
and testified at the hearing. At the commencement of the hearing,
the Trial Examiner denied the respondents' motions to dismiss the
complaint and suspend the hearing. These rulings are hereby af-
firmed. At the conclusion of the hearing, a motion by counsel for
the Board to conform the complaint to the proof, in regard to dates,
spellings, and minor details, was granted without objection. During
the course of the hearing, the Trial Examiner made various rulings
on other motions and on objections to the admission of evidence.
We have reviewed the rulings of the Trial Examiner and find that
no prejudicial errors were committed. The rulings are hereby af-
firmed. The respondents filed a brief following the hearing.
Pursuant to an order duly issued by the Board directing the Trial
Examiner to issue an Intermediate Report, the Trial Examiner on
May 28, 1938, filed his Intermediate Report, copies of which were
duly served upon all the parties. The Trial Examiner found that
the respondents had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1),
(2), (3), and (5) and Section 2 (6) and (7) of the Act. He denied
certain motions on which ruling had been reserved at the close of the
hearing, and we affirm such denials. He recommended that the re-
spondents cease and desist from their unfair labor practices, rein-
state with back pay Jennings, Sobecki, David Brown, Mattingly,
Faistreaux, and Chamblin, give certain back pay without reinstate-
ment to Virgil Brown, disestablish the Association, bargain collec-
tively with the I. T. U. upon request as the exclusive representative
of the respondents' composing-room employees, offer reinstatement
upon application to striking employees, and post appropriate notices.
Subsequently the respondents and the I. T. U. filed exceptions to
the Intermediate Report. The respondents also filed a Motion to
Suppress Record, which is hereby denied, a Petition for Rehearing,
which is discussed hereinafter, and a request for oral argument.
HORACE G. PRETTYMAN ET AL. 643
After one postponement and pursuant to notice served on the parties,
a hearing for the purpose of oral argument was held on November
29, 1938, before the Board in Washington, D. C. The respondents
were represented by counsel and participated in the argument; the
I. T. U. was not represented.
The respondents' Petition for Rehearing alleges that because of
the great distance between their plant in Ann Arbor, Michigan, and
Washington, D. C., where the hearing was held, the respondents were
unable properly to present their evidence. In this connection, two
matters must be considered. At no time have the respondents of-
fered to have the testimony of any witnesses taken by deposition
under oath, which is provided for, under proper circumstances, by
Article II, Section 20, of National Labor Relations Board Rules and
Regulations-Series 1, as amended. Furthermore, it appears from
the respondents' Exhibit 1 in the record that they secured in Ann
Arbor an injunction dated March 30, 1938, against the agents of the
Board, restraining them from holding a hearing on charges against
the respondents and from "requesting information from customers"
of the respondents. This injunction was issued by the Circuit Judge
of the Circuit Court for the County of Washtenaw, Michigan, and
had not been dissolved at the time of the hearing. At the oral argu-
ment before the Board, counsel for the respondents conceded that a
hearing in Ann Arbor had been blocked by these court proceedings
instituted by the respondents. While the Board always attempts
to schedule hearings at places convenient to the parties, we hereby
deny the Petition for Rehearing due to the circumstances set forth
above.
On October 5, 1938, there was filed with the Board a notice of
substitution, reciting that one W. L. Whitney had replaced Harry
Reifin, who had represented the I. T. U. at the hearing, as represent-
ative of the I. T. U. in the case. On November 28, 1938, there was
filed by W. L. Whitney a request for permission to withdraw the
charges and for dismissal of the complaint, because of an alleged
settlement agreement with the respondents. This document did
not assert that there had been full compliance with the recommenda-
tions of the Trial Examiner, or that the settlement agreement was
participated in by any agent of the Board. Counsel for the respond-
ents argued at some length in support of this request at the oral
argument before the Board on November 29, 1938, but conceded that
the settlement agreement did not provide for full compliance with
the Trial Examiner's recommendations. It was also clear from the
argument that no agent of the Board participated in the settlement.
There can be no claim, of course, that the Board is bound by a
settlement in which it did not participate; the question is whether,
169134-39-vol. 12-42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in order to effectuate the public policy represented by the Act, the
Board deems it advisable, as a discretionary matter, to dismiss the
proceedings pursuant to the settlement agreement. In a previous
case involving a similar question, we stated the following :
The Board itself, representing the United States, is a party in
interest in proceedings relating to unfair labor practices under
the Act. No private party can sanction an employer's interfer-
ence, restraint, or coercion in the exercise of rights guaranteed
by Section 7 of the Act, nor can such a party sanction unlawful
domination, interference, or support of a labor organization by
an employer, in contravention of the policy of the Act.
In a proper case, particularly if the agreement is concluded
with the safeguard of the presence of a governmental represent-
ative, we may exercise our discretion and refuse to disturb the
settlement. But we will closely scrutinize all agreements pur-
porting to settle or compromise charges of unfair labor practices.
Under the circumstances of the present case, we do not believe
the agreement has effectuated the policies of the Act and cannot
therefore withhold action on its account .2
The same general considerations apply to this case. After full
consideration of all the circumstances, we are not convinced that the
policies of the Act would be effectuated by dismissing the complaint
as requested by Whitney. The request is accordingly denied.
The Board has considered the exceptions to the Intermediate
Report, and in so far as they are inconsistent with the findings, con-
clusions, 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. THE BUSINESS OF THE RESPONDENTS
The respondents operate a commercial printing establishment, with
the only plant and the offices located in Ann Arbor, Michigan. The
plant has facilities for typesetting, printing, folding, binding, and
shipping of the finished materials. During the year 1937 the re-
spondents delivered to customers approximately $400,000 worth of
printed material. Of this amount, approximately $18,000 worth was
delivered to customers outside the State of Michigan. About $150,000
worth of the total represented periodicals of various types. A sub-
stantial part of these latter items was delivered by the respondents
directly to the post office in Ann Arbor and sent through the mails
2Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee,
6 N. L. R. B. 908.
HORACE G. PRETTYMAN ET AL. 645
to destinations both within and without the State. The postage in
such instances was paid by the customers. While the record does
not reveal the exact percentages of the publications sent outside the
State in this manner, it was stipulated that the extent of interstate
circulation of the periodicals as to which there was specific testimony
was typical of all the periodicals. While the percentage and volume
of interstate shipments varied somewhat as to particular publica-
tions, it is apparent from a few examples that the interstate char-
acter of the circulation was generally substantial. Thus, the North
Central Association Quarterly, a monthly educational magazine, is
sent throughout the country, about half the copies, or approximately
15,000 copies per year, going outside the State ; about 1,300 of a total
of 2,400 copies of each issue of the Michigan Law Review, a legal
periodical published eight times during each year by the University
of Michigan, go outside the State; from January 1937 through April
1938, about 105,000 copies of the Journal of Health and Physical
Education were sent outside the State, as compared to some 4,200
copies distributed within the State.
In 1933 the respondents published a document to advertise their
own services, entitled "Dependable Printers." The following testi-
mony by Wiltse has reference to a statement in that publication :
Q. You also state in this publication : "sales folders in several
colors have been turned out for numerous national manufacturing
plants. Four different railroad systems have placed printing
on broadsides and travel literature with us. Nationally known
concerns in our rapidly growing clientele have also taken ad-
vantage of our facilities for printing sales catalogs, broadsides,
and house organs." Is that correctly stated there?
A. We can't deny that. We are located in a field in Michigan
where there are probably more national manufacturers to the
square foot than any other spot in the country. We are right
in the center of the automobile field there. We have printed for
national manufacturers in Detroit and surrounding Ann Arbor
in every direction.
As examples, Wiltse affirmed the fact that the respondents have
put out such, work for the Nash Kelvinator Corporation and the
General Motors Corporation.
At another point the same document states :
This widespread nature of our business has given us an even
flow of work. It comes from country, villages, from cities, from
outlying factories, from publishers the country over.
Wiltse testified that this summary of the respondents' business
was accurate.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondents' purchases of raw materials in 1937 from within
the State were valued at about $137,325, and those from without the
State at about $26,500. Annual purchases of repair parts amount
to about $5,000 in value, and about two-thirds come from outside
the State.
II. THE ORGANIZATIONS INVOLVED
International Typographical Union is a labor organization af-
filiated with the American Federation of Labor. It admits to mem-
bership employees who have had 6 years' experience in composing-
room work, as well as apprentices. Foremen in the composing room
are eligible.
Independent Association of Ann Arbor Press Employees, Inc., is
an incorporated labor organization admitting to membership only
employees of the respondents. Its membership is not limited to the
composing room, but is plant-wide.
III. THE UNFAIR LABOR PRACTICES
A. Background
Arthur J. Wiltse became a copartner in the Ann Arbor Press in
January 1932, having previously been superintendent and general
manager. For about 30 years prior to 1932, the Ann Arbor Press
had operated its composing room under contractual relations with
the I. T. U. In 1932, the respondents sought to institute a wage
cut, and upon the refusal of the I. T. U. to accede to this move,
Wiltse refused to renew the I. T. U. contract. A strike was then
called but proved unsuccessful. The contractual relations thus sev-
ered had not been renewed up until the time of the hearing, and the
I. T. U. was effectually crushed in the plant for a number of years
after 1932.
Wiltse's attitude toward collective bargaining is set forth by him
in a booklet entitled "The Abundant Life," which he published in
1937:
From the time of Adam down to the day of short-hour phi-
losophy, men have squirmed and twisted, bluffed and blustered
in their attempts to get abundance without working for it. Col-
lective bargaining has come to our national life as a new term,
calculated to take from those who have to give to those who have
not. But neither the term nor the method is new. Collective
bargaining was used when roving bands first set upon the cara-
vans of the early Egyptians. It was used on the high seas by
pirates under the banner of the skull and crossbones. It was
used by slave traders on the Congo villagers. Jesse James used
HORACE G. PRETTYMAN ET AL. 647
collective bargaining on the bankers of the Middle West. Al
Capone used collective bargaining on the helpless shopkeepers
of Chicago.
Collective bargaining is based on the force of numbers and
not on the force of justice. It has and it will destroy the abund-
ance of any land; it will steal away the liberty; it will persecute
the weak; if encouraged it will break down all law and ruin all
government. If the term collective bargaining could be sup-
planted by collective effort, collective efficiency, collective honesty,
collective square-dealing, collective love of our fellow man-we
would have the Abundance which has been so elusive and so
desirable.
At the hearing, Wiltse affirmed these views.
Harry Reifin, special representative for the I. T. U and a former
employee of the Ann Arbor Press, undertook in June 1937 to revive
organizational interest among the composing-room employees of the
respondents. One day early in June lie went to the respondents'
plant and engaged one of the employees in conversation through a
screen door at the side of the building. Wiltse appeared on the
scene shortly and advised Reifin to "get the hell out of here." Reifin
demurred, but Wiltse announced, "I will get you out of here," and
went into the office. Thinking Wiltse was calling the police, Reifin
beat a hasty retreat. Copartner Prettyman came out of the building
and approached Reifin, shaking hands with him. Reifin and Pretty-
man then had a lengthy conversation in a car parked across the
street from the plant. Prettyman told Reifin that "we had both made
a mistake in 1932" and remarked that he had always been satisfied
with the relationship between the I. T. U. and the Ann Arbor Press
prior to that time. Reifin suggested that Wiltse's advent at the
plant might have caused the destruction of the relationship; Pretty-
man said "he thought that there might be something to that." Pretty-
man finally advised Reifin to get in touch with him, not Wiltse, in
the future.
In July 1937 there was enacted in the State of Michigan Public
Act No. 153, setting requirements for firms doing State printing.
Briefly, the statute provided that printing paid for in whole or in
part from State funds "shall bear the label of the branch of the
allied printing trades council of the locality in which they are
printed," except under certain circumstances. To qualify as respon-
sible bidders without the union label, firms were required to file sworn
statements that their employees "are receiving the prevailing wage
rate and are, working under conditions prevalent in the locality in
which the work is produced." It was further provided that "When-
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever a collective bargaining agreement is in effect between an em-
ployer and employees who are represented by a responsible organiza-
tion which is in no way influenced or controlled by the management,
such agreement and its provisions shall be considered as conditions
prevalent in said locality and shall be the minimum requirements for
being adjudged a responsible bidder under this act."
Reifin testified that he was instrumental in securing the passage of
Public Act No. 153.
B. The Independent Association of Ann Arbor Press Employees, Inc.
Wiltse testified that when he learned of Public Act No. 153, he
envisioned a possibility of losing certain State printing business.
He went on to state : "I decided that it would be necessary to try to
procure from the employees some kind of collective bargaining
agreement."
On August 24, 1937, Wiltse called to his office Arnin Fillinger, an
employee in the composing room, and told him that due to Public
Act No. 153, it was essential that the respondents have a collective
bargaining agreement with its employees. He went on to laud Fil-
linger's qualifications for starting an organization in the plant, and
supplied him with copies of the articles of association of an inside
organization in another manufacturing plant, to serve as a working
model. He also suggested that Fillinger seek legal advice from
George Meader, counsel for the respondents in this proceeding.'
Finally, Fillinger was admonished not to disclose the management's
interest in the matter, but rather to make it appear that the idea
was his own. Fillinger discussed the project with Clair Foster, a
person in a supervisory position in the composing room .4 Foster,
who is shown elsewhere in the record to be consistently hostile to the
I. T. U., was enthusiastic. They made certain changes in the arti-
cles of association furnished by Wiltse; Foster set up the material
on one of the linotype machines and printed the revised document.
Fillinger then took it to Thompson, the production manager, for his
approval. Thompson suggested certain further changes, which were
made, and Beatty, the plant superintendent, arranged to have one
of the employees print copies of the articles. Fillinger undertook
to "talk up" the proposed organization to some of the employees, re-
citing to them that an organization was needed in order to retain
the State business. The men appeared cool to the suggestion, and
the next morning Fillinger discussed the matter with Thompson.
B Meader at that time had represented the respondents in certain collection cases.
' Wiltse testified that Foster had no supervisory authority . However , Foster attended
management conferences, hired at least one man , and assigned and supervised work in
the composing room.
HORACE G. PRETTYMAN ET AL. 649
Thompson warned him not to mention Public Act No. 153 to the
employees any more, and suggested that Fillinger call a meeting for
later in the day. Fillinger spread word that there was to be a meet-
ing in the afternoon, and a number of employees met at that time
in the bindery on the second floor of the plant. Cards had been
printed and some were passed around by Fillinger. However, Fil-
linger experienced difficulty at the meeting in arousing any en-
thusiasm among the employees, due to Thompson's admonition that
he refrain from disclosing the real purpose of the organization.
Fillinger testified that certain employees, with whom he had dis-
cussed Public Act No. 153 on the previous day, started "a whispering
campaign that there was something haywire in this." The meeting
broke up with no definite result being reached, except that another
meeting was to be held later.
Prior to the next meeting Wiltse told Fillinger that he had spoken
with Meader, who was willing to help out on the legal questions in-
volved in forming the organization, and suggested that Fillinger get
in touch with Meader. He went on to advise Fillinger "not to worry
about the illegal features connected with it," and to assure him that
"everything will be all right." Fillinger discussed the matter with
Taylor, a machinist in the plant, and they came to the conclusion
that it would be inadvisable to have Meader attend the coming meet-
ing. Fillinger reported this to Wiltse, who reasserted his view that
Meader should be brought in at that time. Fillinger gave in and
invited Meader to the meeting. A notice had been posted on the
time clock in the plant announcing the meeting at 4: 45 p. m. Meader
arrived at the plant at about 4:30 and had a short talk with Fillinger
before they went in to the meeting. They were somewhat late, and
the employees had already elected certain officers when they arrived.
Fillinger testified : "I made a statement to Mr. Meader that there
is something screwy here. The employees were trying to get up
their own association." One of the employees presently suggested
that an attorney should be employed, and Fillinger proposed Meader,
who then addressed the gathering and expressed his willingness to
do the work. He then left the room, and the employees voted to
hire him.
Meader took the stand at the hearing and testified as to his part
in the formation of the Association. According to his testimony,
Wiltse called him before Fillinger did, and offered to pay him if
the Association did not; Meader insisted that his payment should
come from the Association; Meader went to the plant as related above
and spoke to the Association meeting, proposing that the organiza-
tion be incorporated; he later assisted in drawing up articles of asso-
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciation. He further testified that he admonished Wiltse as follows
during their first telephone conversation on the matter :
I think you will find that I told Mr. Wiltse that if I did form
that organization I proposed to represent those employees, and
that I did not propose to have him tell me what kind of an
organization should be formed, and I said to him, I believe, in
addition to that, that possibly he ought not to have suggested to
the employees that they form an organization, for the reason
that maybe he had better let well-enough alone and not have an
association there which could cause embarrassment at a later
date.
At the meeting on August 26, a committee was selected to meet
with Meader and draw up a proposed constitution and bylaws. The
committee met with Meader at least twice during the ensuing week,
and the articles were accepted at the next meeting on September 2.
Proposals for terms to be included in an agreement with the
management were subsequently drawn up by a shop committee, and
presented to Wiltse by the committee on September 20. The Asso-
ciation proposed an 8-hour day from Monday through Friday, with
4 hours on Saturday, a 10-cent an hour increase throughout the plant,
and time and a half for overtime. When the committee went in to
present the proposals to Wiltse, he informed them that their demands
were excessive and that he had a "counter-proposal" to offer. This
was before the committee had stated what their proposals were. The
committee finally did recite their proposals, and agreed to refer
Wiltse's proposal to the body of the Association. A meeting was
held the same day, in the bindery at the plant, and Wiltse addressed
the meeting on behalf of his proposal. Clair Foster moved that the
Wiltse proposal, consisting merely of the same pay for 2 hours less
work per week, be accepted. The motion was carried.
Following the meeting, Wiltse prodded Ekstrom, president of the
Association, to have the contract signed by all the individual em-
ployees. Ekstrom pointed out that the signatures of the Association
officers should suffice, but Wiltse prevailed, and eventually it was
signed by substantially all the individual employees.
The day following the meeting at which the contract was adopted,
Wiltse had Meader prepare for the respondents an affidavit of com-
pliance with Public Act No. 153 and file the same with the proper
administrative board of the State. Meader testified that the re-
spondents' purpose was to secure a commitment from the State board
so that no question as to compliance with Public Act No. 153 would
thereafter be raised. Meader further testified that after doing this
for Wiltse, he felt he should no longer represent the Association. As
HORACE G. PRETTYMAN ET AL. 651
set forth below, Meader withdrew as Association counsel late in
December 1937.
There were no meetings of the Association from September 20
until December 23, 1937. Fillinger from time to time suggested to
Ekstrom that there be a meeting "so that it would look like we had
an association." However, none was held during this period. Fil-
linger explained this inactivity as follows : "Well, no one from the
management had said anything about having another meeting. The
thing was more or less at a standstill."
The articles of association which had been prepared by Meader
and the Association committee were not filed for some time. They
had been returned to Meader, but the Association did not advance
him any money for the filing fee of $15, and Meader was unwilling
to use his own funds for that purpose.5
On the morning of December 23, Wiltse sought out Fillinger and
Taylor, a machinist who was active in the Association, and ad-
monished them to have the Association incorporated quickly. He
said that he had found out it had not yet been done, and that he
wanted it taken care of since certain State agencies were about ready
to award printing contracts pursuant to Public Act No. 153. Taylor
accordingly had Ekstrom call a meeting the same day. Wiltse ad-
dressed the meeting, his remarks being summarized by Ekstrom as
follows :
He mentioned the fact that incorporation papers had not been
filed and that also we were faced with a possibility of losing the
State work as a result of activities by the Typographical Union.
And I believe he mentioned Mr. Reifin's name, and while he could
fight the thing alone it would be a great help to him if the Asso-
ciation would cooperate to the extent of sending a petition to
Lansing to offset the attack by Mr. Reifin and the Typographical
Union and to assure the State Administrative Board that we have
a responsible bargaining agency in the shop.
A committee was accordingly appointed to effectuate immediate,
incorporation and to draw up a petition to the State board. The
committee met with Meader the following day, at which time he
withdrew from his position as counsel for the Association. The
committee proceeded to select another attorney, Hooper, and Hooper
eventually filed articles of incorporation with the appropriate State
officials, after making some minor changes in the articles as drafted
originally by Meader. A petition directed to the State Administra-
6 Ekstrom explained at the hearing that the Association , having no set dues , did not
yet have $15 . He also explained that Hooper , the present attorney for the Association,
had refused to release certain formal papers of the Association "until he had been paid
the sum of $25 which we do not have in the treasury."
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive Board and to the Tourist Association of the State of Michigan
was subsequently drawn up, under circumstances to be discussed
presently. The petition averred thorough satisfaction of the signa-
tories with existing conditions at the Ann Arbor Press and alleged
that "the claims of certain labor organizers concerning working con-
ditions in the Ann Arbor Press and the functioning of our employees'
association are wholly false." The circumstances surrounding the
preparation of this petition are significant in showing the relation-
ship between Wiltse and the Association.
The committee designated to draw up the petition consisted of
Parker, Falstreaux, and Roos, three employees, with Ekstrom added
as an ex officio member. Nothing was done on the matter until early
in January. On January 4, Wiltse sought out Falstreaux in the plant
in order to prod him into action on the petition. Falstreaux's testi-
mony on the point, which we accept as true, is as follows :
Mr. Wiltse told me that it was vitally necessary that we have
this petition immediately; told me to devote my entire time to
getting such a petition, and that he had talked to Clair Foster
and such, or, rather, his outline of such a petition was then being
set up, and left.
Clair Foster came up with the proof of this petition, and we
went over it and made some slight corrections in it. Those cor-
rections were made. Mr. Foster went to Mr. Wiltse's office and
got some more-further corrections on it, and brought it back,
and we mulled the thing over for a while.
So I pointed out to Mr. Wiltse and Mr. Taylor that the Asso-
ciation now had a lawyer of their own, and that we ought to take
this matter up with the lawyer before circulating it. Mr. Wiltse
told me to devote my entire time to it, go downtown and see the
lawyer; I would be paid for it, and to stay right on the job as
long as it was necessary to get this petition into his hands as
quickly as possible.
At about 11 o'clock in the morning, shortly before I went down
to see Mr. Albert Hooper, the association attorney, and he strongly
advised me against circulating such a petition.
I left his office, and just before noon called up Mr. Wiltse and
told him what our attorney had said, and he said that either the
attorney had been misinformed or he is under the influence of
someone that he should not be, and that he did not care what the
attorney said; he wanted such a petition.
Falstreaux yielded and had the petition typed. He then spent most
of the evening getting signatures from the night crew at the plant,
and a good part of the next day, January 5, getting signatures from
HORACE G. PRETTYMAN ET AL. 653
the day-shift employees. That same day, Falstreaux, Roos, and Ek-
strom took the petition to Wiltse. Falstreaux reported that he had
the signatures of all the employees but two. Wiltse wanted to know
who the two hold-outs were, whereupon Falstreaux identified them as
Pepper and Jennings. Wiltse himself subsequently induced Pepper
to sign the petition. Later Wiltse took the petition back to Falstreaux
and had him date it. Falstreaux did so, returning it to Wiltse, and
did not see it again. Wiltse did not file the petition with the State
officials, however.
At the hearing, Wiltse admitted urging incorporation of the Associ-
ation and suggesting the preparation of a petition, but denied that he
had given Falstreaux any instructions regarding the petition. To
the extent that his testimony conflicts with the findings set forth above,
we do not credit it.
Following this flurry of activity, the Association became wholly
inactive until the middle of February. On February 16 an Associa-
tion committee met with Wiltse, and on February 17, Wiltse again
addressed a general meeting of the Association. The principal sub-
ject matter was a 6-per cent wage cut, Wiltse urging acceptance of
the cut by the Association. A secret ballot was taken, resulting in a
vote of rejection of the decrease. As a matter of fact, Wiltse had
put the cut into effect several days before, but conceded to the com-
mittee on the 16th that it had been an "oversight" not to consult the
Association about it. Wiltse also urged the employees to shun any
strike which might be called, there having been rumors that such
action was contemplated by the I. T. U. Subsequently, during the
strike called by the I. T. U. and discussed below, Wiltse agreed to
restore wages to the previous level.
The above findings require the conclusion that the respondents con-
sistently dominated, interfered with, and supported the Association.
It is also relevant to note that the respondents were simultaneously
engaged in various activities, set forth below, directed against the
I. T. U.
We find that the respondents have dominated and interfered with
the formation and administration of, and contributed support to, the
Association, and have thereby interfered with, restrained, and coerced
their employees in the exercise of their rights guaranteed in Section
7 of the Act.
C. The discharges
The complaint alleged the discriminatory discharge of ten named
employees, but the cases of three were dismissed at the hearing upon
motion by counsel for the Board. The other seven will be discussed
individually.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Virgil Brown first worked for the Ann Arbor Press in 1930. It
was a union shop at that time, and he accordingly joined the I. T. U.
He worked first as a floorman and later as an operator, until the 1932
strike, in which he took part. He did not work for the respondents
after this strike until April 1936, when he was taken on by Superin-
tendent Beatty, who informed him that the past would be forgotten.
With the exception of a short period in the late fall of 1936 when he
did some part-time work in Monroe, Michigan, Brown worked steadily
for the respondents until August 1937.
In June 1937 Brown and William Kitchen, another of the respond-
ents' employees, were elected as delegates to the Central Labor Body
in Ann Arbor. Brown had rejoined the I. T. U. in November 1936,
after being previously dropped for non-payment of dues. An item
concerning his election to the Central Labor Body appeared in an
Ann Arbor paper, and shortly thereafter Wiltse remarked to Brown
that he understood he and Kitchen had joined the union again. A
few days later, Wiltse commented to Brown in the plant, "I don't
want to use coercion, but if this union business goes too far, I may."
Wiltse testified that he was "joking" when he made this latter remark.
A few weeks later, Wiltse asked Brown if he still had his union card,
remarked that it would not do him much good, and asked why he
did not "drop the damn thing." A day or two later, Wiltse spoke to
Brown in the composing room and asked him if he knew of anyone
promoting union activity in the plant. Brown expressed ignorance
on the subject.
On August 16, 1937, Brown was called to the office of William
Thompson, production manager for the respondents, and was told
that due to a shortage of work some men had to be laid off, and that
he was included.
Wiltse testified that work was slack in August 1937 and that Brown
was among those laid off at that time because he "fooled around" on
the job and talked to much. He denied that Brown's I. T. U. mem-
bership was a consideration in the selection. Brown testified that he
had never been criticized concerning his work, and that when he was
laid off, there was ample work available.
Louis Falstreaux, a hand compositor in the composing room, tes-
tified that on August 9, 1937, when he first reported for work at the
respondents' plant, he talked with Thompson and Wiltse briefly before
going to work. Thompson and Wiltse discussed, in his presence, the
question of who should be removed to make room for him. They
finally decided to get rid of three men-one Butcher, Virgil Brown,
and one Thorpe. Wiltse said, "Two are damn union men, and the
other is a damn agitator. We are better off without all three of them."
Falstreaux asked whether there was some labor trouble, and Thomp-
HORACE G. PRETTYMAN ET AL. 655
son assured him that there was none, that they were just "getting
rid of some union men and some agitators at the plant." This testi-
mony by Falstreaux was not denied, and we accept it as true.
A review of the facts convinces us that Virgil Brown was laid off
on August 16, 1937, because of his membership and activities in the
I. T. U., and we so find.
Shortly after Brown's dismissal, Wiltse directed him to a job in
Monroe, Michigan. Brown has held this job since, at a rate of $40 a
week. At the Ann Arbor Press he had been making 85 cents an hour
and working 40 hours a week. He does not desire reinstatement.
Joseph Sobecki began work for the respondents in March 1936, as a
hand compositor. Some time in the spring of 1937 he was made night
foreman in the composing department and press room, and in January
1938 he was made day foreman of the composing room. About Febru-
ary 1, 1938, he was put on a straight salary of $60 a week, instead of
the hourly rate under which he previously had worked. Fillinger, an
employee in the composing room, was told by Superintendent Beatty,
after Sobecki had been discharged under circumstances hereinafter
discussed, that Sobecki "came the nearest to being the right kind of
foreman that they ever had there."
Sobecki made application to join the I. T. U. on February 15, 1938.
While he was at work the next morning, Wiltse told him to come to
the office for a meeting with other supervisors in the plant. Sobecki's
testimony at this point, which we credit, is as follows :
I began to think after joining the union, knowing that Mr.
Wiltse was so much against the union, I figured maybe he would
not want me in a meeting of that kind; and I asked Mr. Beatty
to see if I could not be excused from that meeting on that ground.
"Mr. Beatty was very much surprised to find that I had joined
the union, telling me he wished I had seen him before doing so;
and he thought Mr. Wiltse would be very much irritated over it.
Sobecki explained at the hearing that he thought the meeting would
concern the I. T. U. because about 2 months before this incident, he
had been similarly called to the office and told by Wiltse "that we
were to try to keep men holding Typographical Union cards out and
try to hire men and hold men who would be in accord with the man-
agement." Wiltse denied any recollection of such a statement, but
it appears perfectly consistent with the events shown by the record
as a whole, and we find that it was made. As a matter of fact, while
Wiltse had not specified the purpose of the meeting to Sobecki, it
actually had been called to consider what to do about a threatened
I. T. U. strike, as appears from Wiltse's own testimony.
Beatty informed Wiltse that Sobecki had joined the I. T. U. and
did not want to come to the meeting. Foster and Taylor were in the
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office at the time. Wiltse testified that he commented : "So I told the
men then that I had found out all that I wanted to know, that I could
see that something was wrong in the plant, and that they would prob-
ably call a strike on us, as they said."
Wiltse then called Sobecki to the office, told him that certain mis-
takes in his work would warrant his discharge, berated him for not
coming to the meeting, and discharged him then and there. It was
stipulated at the hearing that the mistakes referred to by Wiltse were
not the cause of his dismissal. Wiltse testified that he did not dis-
charge Sobecki for having joined the I. T. U., but rather "because
he did not come up to the conference with me and did not want to talk
to me about the business in a situation which seemed to me to be vital."
On the same day, Wiltse remarked to another employee in the plant
that "they have even got my foreman." Also on the same day, Super-
intendent Beatty told Dimetra Carras, a proofreader in the composing
room, that "Sobecki had been fired for joining the union."
A consideration of all the above evidence, in the light of the whole
record, convinces us that Sobecki was discharged because he had
joined the I. T. U., and not merely because of his failure to attend the
meeting in question, and we so find.
At the time of his discharge Sobecki was earning $60 a week. He
has not obtained any regular and substantially equivalent employment.
George Kerby Jennings was enrolled in the University of Michigan
for the fall term of 1937. About October 1, he spoke with Beatty
about night work at the respondent's plant. Beatty asked him if he
was a union man, and Jennings replied that he was. Beatty stated :
"I am not in the practice of hiring union men in this plant; we have
had some, but we have had considerable trouble in the past with union
men, and that is our policy, not to hire them." Jennings accordingly
was not hired. He was in a debating class at the University, and
thereafter took occasion to castigate the respondents' labor policies
in various speeches. Some time in November, after these speeches, he
received a call from Clair Foster, who told him he could work for the
respondents if he still desired to do so. Jennings accepted, and worked
on the night shift. Unless notified that the respondents had work for
him on Friday or Saturday nights, he made a practice of working
those nights in Detroit, where he had a wife and daughter. His em-
ployment was not full time, even during the week, but was fairly
steady. Thus, during five particular weeks he worked three nights
each week, during one week he, worked two nights, during two weeks,
one night in each, and during two other weeks, four nights in each.
On two occasions he worked Friday nights.
When Jennings received his first pay check from the respondents,
he complained to Foster that he was getting a lower rate than the
HORACE G. PRETTYMAN ET AL. 657
man working next to him, who was doing the same type of work.
Foster replied : "That is what you get for being a union man."
Early in January, Falstreaux brought around the petition to the
State board, as previously discussed, and Jennings refused to sign it.
Falstreaux explained that the management had asked him to circulate
it, but Jennings was adamant, averring that "the purpose of it was
contradictory to legitimate trade unionism." As previously noted,
Falstreaux told Wiltse, in response to questioning, that Jennings and
one other man were the only ones who had refused to affix their names
to the petition. The next day, when Jennings reported for work, Fos-
ter told him there was no work for him. For the next 4 weeks Jen-
nings reported each evening, except on week ends, and was regularly
told by Foster that there was not enough work for him. He was
subsequently rehired on February 14, under circumstances which we
will discuss presently, but at this point we will consider the allegation
in the complaint that Jennings was discharged on or about January 5,
and refused employment until February 14, because of his member-
ship in the I. T. U. and his union activities.
Jennings himself testified that from time to time during this period
when he reported, he observed what seemed to him ample copy on the
desk. He further testified that Chamblin and Tucker, who were work-
ing in the plant, told him that there was an abundance of work to
be done. Chamblin testified that during this period when Jennings
was being turned down nightly, overtime work in the plant was very
frequent. In fact, Chamblin himself worked as much as 741/2 hours
in a week in that time. Chamblin added that prior to Jennings' ter-
mination from work early in January, Foster had frequently re-
marked to him that Jennings was an "unfavorable person to have
in the plant," referring to him as "that union guy" or "that union
agitator." Wiltse testified that Beatty told him that Jennings had
been replaced by Tucker because Jennings did not work week ends,
whereas Tucker could work steadily. This theory does not square
with Foster's repeated assertions to Jennings that there was a dearth
of work, and seems highly implausible, since Jennings had made a
practice of inquiring whether there would be work for him over the
week end, and only going to Detroit when he was not needed at the
respondents' plant. Furthermore, Tucker was hired only after Jen-
nings had been reporting in vain for several weeks.
The above evidence, considered in the light of the whole record,
convinces us that Jennings was denied work from January 6 until
February 14, 1938, because of his membership in the I. T. U. and his
refusal to sign the petition to the State board, and we find that he
was accordingly discriminated against in violation of the Act.
About February 12 Jennings endeavored to get his job back through
other means. He had a sign made and instituted a one-man picket
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line in front of the respondents' plant. This proved effective, as
Wiltse agreed to put him back to work, and Jennings resumed his
position in the composing room on February 14. Foster regarded
Jennings' return with unfeigned distaste. He remarked to Sobecki
that he would "fix things" by giving Jennings complicated work to do,
and observed to Chamblin : "That union agitator had better watch
his step, for one mistake and out he goes." He nodded toward Jen-
nings as he spoke.
Jennings, however, worked the full night shift from Monday,
February 14, through Thursday, February 17th. On the evening of
February 16, Wiltse asked Jennings if he could work on week ends.
Jennings said that he would be glad to do so. On his way to work on
Friday, February 18, Jennings encountered Chamblin, who told him
that "he had just come from Mr. Foster and that they were not going
to hire any union man that night." Jennings further testified : "I went
on to work and started to take off my coat, knowing that there was
sufficient work in the plant because we were behind the night before.
In fact, I never stopped to question Mr. Foster at that time, when
he stopped and told me, `I am sorry, Jennings, but we can't work you
tonight.' " Jennings immediately went to Wiltse, demanded his pay
check, received it, and left the plant. The next morning he joined
the strike, which had been called on the 18th under circumstances to
be discussed presently.
Four other complainants were also denied work on February 18.
The facts in regard to them will be set forth next, and we will then
consider the five cases together.
Louis E. B. Falstreaux came to work for the respondents on August
10, 1937, having been hired by Thompson, the production manager.
On August 5, he had spoken with Thompson on the telephone and in
the course of the discussion concerning employment, he had asked
if it was a union shop. Thompson replied that it was not, and asked
Falstreaux if he belonged to the union. Falstreaux said that he did
not, and Thompson stated : "Well, it is a damn good thing because
we are radically opposed to the union down here, and you almost
got yourself in bad. If you had been a union man you would not
have gotten a job down here." Falstreaux worked steadily as a hand
compositor until February 18, 1938. As noted above, he served as
Wiltse's agent early in January to circulate the petition to the State
board among the employees. He joined the I. T. U. about February
13, 1938.
On the morning of February 18, Wiltse asked him if he had joined
the I. T. U., and Falstreaux replied that he had. Later in the morn-
ing, Wiltse urged him to reconsider, citing the fact that he had in
the past given Falstreaux football tickets and moose steaks. Fals-
treaux conceded that to be true, but suggested that it was irrelevant
HORACE G. PRETTYMAN ET AL. 659
to the question of unionism. Wiltse went on : "I didn't think you
would do this to me ... Well, I can stop this thing in 15 minutes ...
I can go down and get an injunction against this son-of-a-bitch and
his band of cutthroats prohibiting him from interfering with my
business at all." Later in the day, Wiltse redoubled his efforts to lure
Falstreaux away from the Union, stating that he had a wonderful
future with the respondents if he did not carry a union card, but that
with a union card he was "just out of luck." Falstreaux remained
adamant.
That evening Superintendent Beatty approached Falstreaux with
a list of the composing-room employees, and asked him if he belonged
to the I. T. U. Falstreaux replied that he did. Beatty, appearing
angry, told him there would be no work Saturday, the next day, and
added that Falstreaux might drop in Monday and see if there was any
work. Getting his check from Beatty, Falstreaux went home. Fals-
treaux testified that on the 18th he was engaged in working on "a
big stack of copy." Falstreaux was later chairman of the I. T. U.
strike committee. His testimony as to the above matters was uncon-
tradicted, and we credit it.
Nicholas Chamblin started work for the respondents in September
1937, and was engaged in linotype operating until February 18,
1938. Prior to being hired, he was asked by Superintendent Beatty
if he had a union card. When Chamblin replied in the negative,
Beatty said : "Well, that is fine, because we are trying to weed out
the union men around here." Chamblin applied for membership in
and received a working permit from the I. T. U. on February 5.
On February 18, he arrived at the plant slightly before 4: 45 p. m.
and began looking over the copy placed by his machine, preparatory
to starting work. Clair Foster came up and asked him why he had
not begun work. Chamblin heatedly denied any dereliction on his
part, remarking that Foster was not "fooling" him. After a brief
discussion, Chamblin returned to his machine, and Superintendent
Beatty came up and asked him if he belonged to the I. T. U. Chamblin
said he did not, but under questioning admitted that he had made
application for membership, saying "That is right, Howard. When
I came here to work, you asked me if I had a card and I told you no.
You said to me, `Good, we are trying to weed out the Union men
around here."' Beatty responded, "Well, I will have to mark you
`yes,"' and thereupon made a mark on the paper he was carrying.
Beatthen told Chamblin that there would be no work for him that
night. Chamblin asked Beatty if the others were to work. Beatty said
that some of them were, but not Leroy Tucker, nor Jennings, nor
Chamblin (all I. T. U. members). This was the first idle Friday eve-
ning in Chamblin's 6 months' service with the respondents. In fact,
169134-39-vol 1 2--43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clair Foster had, a few days before, told him : "There is going to be
plenty of work this week ... Work is stacking up something fierce
around this place." Chamblin then asked Beatty if there would be
work for him Saturday. Beatty said that there would not be, but
added that there might be some for him Monday. Chamblin re-
marked, "I think I understand." Beatty nodded. Chamblin asked
for his check, received it, and left. As previously noted, Chamblin's
work for the night was actually stacked by his machine when he
arrived on the 18th. Chamblin's testimony on the above matters was
uncontradicted.
William Mattingly began work for the respondents about August
1937. He had, about 5 months previously, spoken to Wiltse about
employment, but had not accepted a job at that time. On that oc-
casion, he related to Wiltse that he had been ousted from the I. T. U.
due to "scabbing" in a Detroit shop. Wiltse had responded : "You are
the kind of man I want-men that have no use for the union." Be-
fore starting work in August, Mattingly was reinstated in the I. T. U.
and promised Reifin that he would report to him on any anti-union
activities he observed at the' respondents' plant. When he began
work, Wiltse remarked to him that he had no respect for the I. T. U.
or its officers, and that he was going to "lick Reifin." Mattingly
worked as a hand compositor on the day shift. On the morning of
February 16, the day Joseph Sobecki was fired, Mattingly heard Wiltse
say to another employee, "They have even got my foreman." Wiltse
then approached Mattingly and asked him if he would go on strike if
the I. T. U. should call one. Mattingly replied that he would. Wiltse
told him that if he would shun any strike, he would have a job with
the respondents for life. He added that he (Wiltse) would sign
no contract with the I. T. U. Some time during that week, Superin-
tendent Beatty had told Mattingly not to make any plans for Satur-
day and Sunday, since there would be work for him on those days.
On the evening of February 18, Beatty asked Mattingly if he was a
member of the Union. Mattingly declined to answer. Beatty said
he would put him down as having answered "yes," and added that
"there won't be any work tomorrow." He said that Mattingly could
come back Monday, when there might be work for him.
David T. Brown worked on the night shift in the composing room.
He had been employed by the respondents for nearly 4 years prior to
February 18, 1938. He signed an application for membership in the
I. T. U. on February 17, 1938, and became a full-fledged meter the
following day. When he arrived for work about 4:45 p. m. on the
18th, Beatty asked him if he was an I. T. U. member. Brown replied
that he was. A few minutes later, Beatty returned and told him it
would be a "short night" that night. It appears that 3 or 4 weeks
HORACE G. PRETTYMAN ET AL. 661
previous, he had been told the same thing, and on that occasion work
had run out at about 9 p. m. He inferred that Beatty's remark
meant that he was to be let out, since there was at that time, as he
testified, a full night's work on hand. He immediately communicated
with Reifin and told him of Beatty's remark. Reifin advised him to
join the strike, which was called early in the evening. Brown did so.
Brown's rate of pay with the respondents was 741/2 cents an hour,
Falstreaux's 94 cents an hour, Chamblin's 88 cents an hour, Mat-
tingly's 94 cents an hour, and Jennings' 75 cents an hour. None has
obtained regular and substantially equivalent employment.
The complaint alleges that Jennings, Falstreaux, Mattingly, David
Brown, and Chamblin were discharged on February 18 because of
their membership and activity in the I. T. U. The respondents'
answer denies that the men were discharged and states that they
were "instructed to return to work at a later time" and failed to do so.
The Trial Examiner found that they were discharged, not merely laid
off temporarily, and that the discharges were due to the employees'
membership and activities in the I. T. U. The respondents except to
these findings.
It is apparent from the record that there are several questions as
to the events of February 18. There is dispute as to whether there
was a genuine slackness in work, and whether, even if there were, the
selection of the particular men to be let go was discriminatory. There
is also the question of whether Beatty subjected the men to mere tem-
porary lay-offs or actually discharged them, and in either case whether
his action was discriminatory.
As already noted, Mattingly and Chamblin had been asked particu-
larly to be ready to work over the week end in question, because of the
press of work; as Foster put it to Chamblin, "work is stacking up
something fierce around this place." Jennings, Falstreaux, Chamblin,
and David Brown all testified that there was ample work for them on
the 18th. At the very time the men were dismissed, copy was stacked
up beside their machines. The respondents introduced no direct proof
as to any slackness in work. Wiltse merely testified that Beatty had
told him that the work "had not flowed into the plant as he thought
it would." Wiltse went on to aver that the employees could not have
known whether there was enough work on hand for that week end,
and that Beatty alone would be in a position to know. Wiltse did not
claim such knowledge for himself.
The circumstances of the dismissals are significant. Beatty made
a systematic canvass of the composing room, asking each man point-
blank whether he belonged to the I. T. U. Beatty dismissed only em-
ployees whose reply satisfied him that they were members of the
I. T. U. No others were let go. The only testimony offered by the
respondents on this matter was Wiltse's statement that Beatty had
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him that his canvass was intended to ascertain whether the I. T. U.
had a majority. The testimony of Leroy Tucker should also be noted.
Beatty told him on the 18th that there would be no work for him until
Monday at least. A few minutes later Beatty asked him if he be-
longed to the I. T. U. Tucker untruthfully said that he did not. As
he was putting on his coat a few moments later, Beatty returned and
said, "Did I understand you correctly?" Tucker replied, "I think you
did." Beatty then averred that some work had just come in, and
told Tucker he could work that night after all. This testimony was
uncontradicted, and we accept it as true.
The employees themselves understood that they were discharged.
In this connection, there is the undisputed testimony of Dimetra
Carras, a proofreader in the composing room. She did not go out on
strike until February 25. A few days after the strike began, she asked
Chris Anderson, the night foreman, "why Mr. Wiltse had fired the
men on the night of the strike." Anderson told her "that Mr. Wiltse
knew that there was going to be a strike, and that he wanted to get
the ball rolling and just fire the men and see what would happen."
We find that she testified truthfully.
The only other testimony of the respondents on this phase of the
case was Wiltse's explanation that employees are paid up in full when
"we don't want to bring them back," and that the employees dismissed
on February 18 were not paid up in full. That the men were justified
in assuming that they were actually being discharged is indicated by
a consideration of Jennings' experience, related above. He had been
told by Foster that there was no work for him, after he had refused
to sign the petition to the State Board. His repeated efforts to regain
his job met with Foster's constant assertions that there was no work
for him, although the evidence clearly reveals that during that same
period the plant was extremely busy.
Finally, we refer back to the statements made to Jennings,
Falstreaux, Chamblin, and Mattingly when they were hired, indi-
cating the respondents' determination to keep their plant as free as
possible of union men.
The Trial Examiner, who personally observed all the witnesses on
the stand, made the following findings in regard to these events :
It is clear that the last-named men were not temporarily laid
off but were, as the men themselves believed, and as Anderson
stated, fired. There is no doubt in the mind of the undersigned
that the contention of the respondents that the "lay-offs" were
caused by lack of work was a fiction invented for the purpose of
the hearing; the real reason was to destroy the Union's developing
strength in the composing room before the Union obtained a clear
and definite majority.
HORACE G. PRETTYMAN ET AL. 663
A careful consideration of all the evidence, in the light of the
respondents' entire course of conduct shown by the record as a whole,
and in view of the weight to be attached to the findings of the Trial
Examiner on conflicting testimony, convinces us, and we find, that :
(1) There was no slackness in work as alleged;
(2) Beatty's suggestion that the men return on Monday was made
in bad faith; he had no intention of putting them back to work at
that time;
(3) Chamblin, Falstreaux, Jennings, Mattingly, and David Brown
were discharged, not temporarily laid off, on February 18;
(4) Whether or not there was a slackness in work and whether they
were temporarily laid off or discharged, the above-named employees
were discriminatorily selected as those to be let go, because of their
affiliation with I. T. U.
We find that the respondents have discriminated in regard to the
hire and tenure of employment of Virgil Brown, Joseph Sobecki,
George Kerby Jennings, David Brown, Louis Falstreaux, William
Mattingly, and Nicholas Chamblin, thereby discouraging member-
ship in the I. T. U. and interfering with, restraining, and coercing
their employees in the exercise of the rights guaranteed in Section
7 of the Act.
Representatives Reifin and Lougheed were immediately informed
by the men of Beatty's activities on February 18. In consequence, a
strike was called on the same day. Seventeen employees, including
those who had been discharged, joined the strike immediately, and
two others went out the following week. The strike was still going
on at the time of the hearing. We find that the strike was caused
by the unfair labor practices of the respondents.
D. The refusal to bargain
1. The appropriate unit
The complaint alleges that "the employees of the respondents en-
gaged as linotype operators, hand typesetters, stonemen, floormen,
compositors, proofreaders, operators of type casting machines, lino-
type machinists and otherwise in the composing room of the re-
spondents' printing plant, excepting only apprentices of less than 1
year's experience in the trade, constitute a unit appropriate for the
purpose of collective bargaining." The answer of the respondents
denies the appropriateness of such a unit, alleging that "the entire
plant of these respondents constitutes the sole and only proper
collective bargaining unit."
The number of employees in the entire plant varies between 105
and 125. Of these, about 33 are in the composing room, where the
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incoming copy is set up on linotype machines or by hand. The type
is then arranged and locked in forms. The actual printing is done
in the pressroom on several printing presses. The respondents also
have a bindery, with facilities for folding, cutting, and binding of
the printed material. While the work at the plant is thus inter-
dependent, Wiltse conceded at the hearing that the various depart-
ments are distinct and that there is little or no interchange of
workers between them.
The I. T. U. is, of course, an established labor organization limited
to employees in composing-room work. In fact, the I. T. U. enjoyed
contractual relations with the Ann Arbor Press covering composing-
room workers for about 30 years prior to the advent of Wiltse in
1932. Pressmen have their own trade union, the International Print-
ing Pressmen and Assistants Union, and the binders are eligible to
membership in the International Brotherhood of Bookbinders. How-
ever, it appears that the I. T. U. is the only one of these organizations
which has been active in the respondents' plant.
The record as a whole clearly establishes that the composing-room
employees constitute an appropriate bargaining unit. There remain
certain, questions as to the inclusion or exclusion of particular indi-
viduals. As indicated above, Anderson, Foster, and Sobecki are
supervisory employees. Normally such employees would be ex-
cluded from the unit, but since it appears that foremen are eligible
to membership in the I. T. U. and that Sobecki in fact joined that
organization, we shall include these three employees in the unit in
this case. Beatty, the superintendent of the plant, appears on a
list of composing-room employees introduced in evidence, but we
think it is clear on the whole record that he should be excluded and
we will do so. Others appearing on the submitted list who are to be
excluded are Kayuska, who does cleaning and general unskilled chores
around the plant, and Egleton, who works in the basement taking
care of cuts. Miriam Westerman is a young girl who works during
the day as a copyholder, reading the copy to proofreaders, who make
the corrections on the proof. She began working for the respond-
ents in September 1937. She occasionally does proofreading herself.
It appears that she is ineligible to membership in the I. T. U., and
we will exclude her also from- the unit. Hereinafter in this decision
and in our Order when we refer to the unit of "composing-room
employees," the term shall be understood not to include Beatty,
Kayuska, Egleton, or Westerman.
We find that the respondents' composing-room employees consti-
tute 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 collective bargaining
and otherwise effectuates the policies of the Act.
HORACE G. PRETTYMAN ET AL. 665
2. Representation by the I. T. U. of a majority of the employees in
the appropriate unit
There was introduced into evidence a list of employees in the
composing room, giving the dates on which the various individuals
applied for membership in the I. T. U. and the dates on which they
became members. It was stipulated that the information on the
list could be accepted as accurate, subject to any modification indi-
cated by subsequent testimony. An inspection of the list reveals
that, with the deductions from the unit indicated above, there were
27 employees within the appropriate unit on February 18.8 It also
reveals that on that date 15 of the 27 had designated the I. T. U. to
represent them for the purposes of collective bargaining. On Feb-
ruary 25, two more in the,unit joined the I. T. U., making 17 of 27
on that date. Further evidence of the I. T. U.'s representative
authority is shown by a letter dated March 10, 1938, delivered to
Wiltse by Falstreaux on March 12, in which the signatories reaffirmed
their designation of the I. T. U. for collective bargaining purposes.
Seventeen of those signing the letter are included in the unit of 27.
The evidence does not, on the other hand, indicate an I. T. U. major-
ity before February 18.
We find that on February 18, 1938, and at all times thereafter, the
I. T. U. had been designated and selected by a majority of the re-
spondents' employees in an appropriate unit. Pursuant to Section
9 (a) of the Act, it was, therefore, 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
The complaint , as amended at the hearing, alleges that the re-
spondents refused to bargain collectively with the I . T. U. on Feb-
ruary 16, February 19;Iarch 7, March 12, and April 7, 1938. The
respondents ' answer, as amended at the hearing , denies these alle-
gations. While the I. T. U.'s majority was not established until
February 18, we shall set forth the full course of the negotiations
starting with February 16.
This figure does not include Virgil Brown or William Payne. As noted previously,
Brown was dismissed on August 16, 1937 , because of his membership in the I. T. U., but
shortly thereafter obtained employment elsewhere and does not desire to return to work
at the Ann Arbor Press. Payne, who also appears on the submitted list, was paid off in
full early in the morning of February 18, 1938, before the strike was called There is
no evidence or claim that his dismissal constituted an unfair labor practice . He subse-
quently designated the I. TAU. to represent him. Under the circumstances , neither
Brown nor Payne are to be counted in computing the I T. U.'s majority at the time the
strike was called and thereafter. .
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 16, Wiltse met with Emil Kuchar and Harold Hoff-
meyer, president and secretary-treasurer, respectively, of the Ann
Arbor local of the I. T. U., at the respondents' office. Also present
was one King, a salesman for the respondents. Kuchar described
the conference as follows :
I told Mr. Wiltse that the majority of his men in the
composing room indicated a desire to join our local. Therefore,
I was there to represent them . . . Mr. Wiltse, first of all, he
said he did not believe that the majority of his men would
join a union . . . He told me that he knows that Mr. Reifin
is in this town. He called Mr. Reifin a son-of-a-bitch. He said
"I know that son-of-a-bitch is in towii. He has got my men
down there and is trying to make them join the union" . . . I
tried to reason with Mr. Wiltse, and I offered to deal with him.
I says, "Now; you don't have to deal with Mr. Reifin as long
as the local is here to deal with you. As long as your men
indicated their desire, we can deal at once or any time before
anything further has happened." 4
But Mr. Wiltse, he again roared out like a lion. In fact, 1
never met a man in all my life that would act that way, and he
told me and Mr. Hoffmeyer that he did not want to have anything
to do with the local or the International Union, and he told me
to run the local union for the Ann Arbor Daily News; that he
is going to take care of his Ann Arbor Press, and he walked
out on us.
Of course, we waited for about ten or fifteen minutes, but as
long as he did not return, we left the building. That was the
end of the first meeting with Mr. Wiltse.
Wiltse testified that he became irritated at "their threats of what
they would do and so forth", admitted that he told them to run the
Daily News while he ran the Ann Arbor Press, but averred "I did
not get quite as violent as they described I did." We find that
Kuchar's testimony is a substantially correct version of the
"conference."
As indicated above, the strike began following the discharges on
February 18. On February 19 Kuchar and Hoffmeyer again at-
tempted to institute negotiations with the respondents. Kuchar
testified that they went to the office of copartner Prettyman and
talked with him for a short while. His further testimony follows :
I tried to persuade Mr. Prettyman to negotiate with the
local officers, but he thought that he would have to consult Mr.
Wiltse. . . . He called Mr. Wiltse in the room ... Mr. Wiltse
walked into the room, and he looked left and right, and the
HORACE G. PRETTYMAN ET AL. 667
first thing he said, that he had a good notion to kick our ass out
of the building, and also called Mr. Reifin a son-of-a-bitch on
several different occasions, and he got into such a spell, that I
got up off my chair, and. he also shook his fist at my face.
Kuchar went on to testify that Prettyman saved the conference
from abrupt termination at this point by telling Wiltse to leave the
room. After his departure, Prettyman and Meader, who had also
been present, discussed the I. T. U. bargaining demands with Kuchar
and Hoffmeyer, with Prettyman, and Meader finally asking for a
copy of the proposed contract and a book of laws of the I. T. U.
Wiltse again testified to a somewhat milder version of his conduct
on this occasion, but Kuchar's testimony, which stood up under close
cross-examination by Meader, appears highly credible to us, and we
find that it is a substantially accurate account of Wiltse's behavior.
Neither Prettyman nor Meader testified as to this conference.
The sample I. T. U. contract and book of laws requested by Pretty-
man and Meader were delivered two days later. The contract pro-
vided for a closed shop, among other things.
A few days later, Wiltse and Prettyman met with one Barrett, an
International vice president of the I. T. U., and discussed the stand-
ard I. T. U. closed-shop contract. Barrett informed them that the
closed shop was a necessary provision in the agreement. Wiltse and
Prettyman refused to grant a closed shop, suggesting instead that
the strikers be reinstated and that the I. T. U. be allowed to bargain
only for its members in the composing room. No accord was reached.
On March 3, Reifin sent Wiltse a letter, saying that if Wiltse
would agree to take back all the strikers, including those "illegally
discharged and laid off" before the strike, discharge new employees
taken on in the composing room during the strike, and recognize "the
right of the Typographical Union to represent all composing room
employees by virtue of our majority membership", an "amicable
solution" would be possible. Wiltse replied on March 7 with a letter
expressing his willingness to bargain with "any employee or set of
employees", but complaining that none of the representatives from
the I. T. U. had presented any proof that they were the "chosen
agents" of the strikers. He did not mention the matter of exclusive
recognition, and refused to consider discharging the "loyal employ-
ees" who had been taken on during the strike. He also said that he
could not regard the strikers as employees, but would "treat and
bargain with them as former employees seeking re-employment."
On March 12 Reifin addressed another letter to Wiltse, and ac-
companied it with a communication to Wiltse signed by 19 strikers.
The latter communication designated the I. T. U. or its officers or
agents as the bargaining representatives for the signatories. As
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noted above, 17 of the signatories were within the appropriate unit
of 27. Reifin's letter referred to this evidence of the I. T. U.'s ma-
jority, pointed out that as a result the I. T. U. was the exclusive
bargaining representative of all the composing-room employees, and
demanded that Wiltse set a time and, place for the initiation of
bargaining conferences relating to the composing room employees.
Wiltse replied on March 15, designated Meader and George Burke,
another Ann Arbor attorney, as the respondents' representatives for
bargaining purposes, and suggested that Reifin get in touch with
them. Apparently satisfied with the bargaining unit and the proof
of the I. T. U.'s majority, he made no reference to Reifin's assertion
that the I. T. U. was the exclusive representative of the composing-
room employees.7 He again referred to the strikers as "our former
employees." On March 19, Reifin met with Burke and Meader and
discussed the possibility of an agreement, but none was reached.
On April 6, Wiltse and Meader went to Lansing to confer with
Governor Murphy and certain other State officials. Upon returning
to Ann Arbor that evening, Meader communicated with Fillinger and
Falstreaux and outlined to them a proposal for settlement of the
strike. Briefly, it involved taking back the strikers gradually, with-
out back pay, granting wages in accordance with the I. T. U. scale
to I. T. U. members, and recognizing the I. T. U. as representative of
its members only. Falstreaux communicated thin proposal to Reifin
and Reifin arranged with Meader for a meeting in Detroit on the
following day.
The scheduled meeting was held on April 7 at the Statler Hotel
in Detroit. Reifin and Lougheed represented the I. T. U., Meader
and Wiltse the respondents. The respondents' proposal, outlined
above, was repeated ; Reifin asked for a closed-shop contract, which
was refused. Wiltse also refused to discharge employees newly
hired during the strike or to disestablish the Association. Reifin
asked Wiltse if he would recognize the I. T. U. as the exclusive
representative of the employees in the composing room. Wiltse re-
fused. The meeting broke up with no agreement having been
reached. There were no further negotiations up until the time of
the hearing.
From the above evidence, it is clear that despite the I. T. U.'s
majority in the appropriate unit, Wiltse refused to grant that organ-
ization recognition as the exclusive bargaining agency for all the
employees in the unit. The I. T. U. was entitled to such recognition
' It should be noted here that the new employees hired to replace the strikers are not
to be deemed part of the appropriate unit during the strike. The Act expressly provides
(Section 2 (3)) that the strikers and those discriminatorily discharged remain employees,
and it is improper to consider as in the unit two workers-one strikebreaker and one
striker-for each job . On this point , we refer to a fuller discussion in Matter of A.
gartorius ci Co, Inc. and United Mine Workers of America, 10 N. L R. B. 493.
HORACE G. PRETTYMAN ET AL. 669
under the clear terms of the Act. The fact that the respondents
offered a counterproposal and otherwise dealt with the I. T. U.
representatives on the matters at issue does not establish that they
fulfilled their obligation to recognize and bargain with the I. T. U.
as sole representative of all the employees in the appropriate unit.
We have frequently held that the refusal to grant such recognition
consitutes a refusal to bargain collectively within the meaning of
the Act," and we so hold in this case.
We find that the respondents have refused to bargain collectively
with the I. T. U. as the exclusive representative of their employees
in an appropriate unit, and have thereby interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed
by Section 7 of the Act.
E. The alleged refusal to reinstate the strikers
The complaint alleges that on or about March 4, 1938, 18 named
striking employees, acting through the I. T. U., requested reinstate-
ment, "conditioned only upon the reinstatement also by the respond-
ents of employees who had been discharged or laid off on and prior
to February 18, 1938, in violation of law, and upon the recognition by
respondents of the right of the International Typographical Union
to act as exclusive representative of the composing room employees
for the purpose of collective bargaining with the respondents." It
further alleges that on or about March 7, 1938, "respondents refused
the said request and refused to reinstate the said striking employees
or any others, and refused to recognize the International Typograph-
ical Union as representative of their composing-room employees."
The refusal to reinstate the strikers was alleged to be in violation of
Section 8 (3) of the Act. The respondents' answer denied these alle-
gations. In his Intermediate Report, the Trial Examiner made no
finding sustaining or dismissing the allegations of the complaint in
this respect. The I. T. U. subsequently filed exceptions, asserting
that an unlawful refusal to reinstate the strikers should have been
found and that back pay should have been awarded on that basis.
We have set forth above the contents of Reifin's letter of March 3
and Wiltse's reply of March 7. We are unable to sustain the alle-
gations of the complaint that the respondents refused to reinstate
the strikers in contravention of Section 8 (3) of the Act. The re-
quest for reinstatement was conditioned on the reinstatement of the
8 See Matter of MoKaig -Hatch, Inc. and Amalgamated Association of Iron, Steel, and
Tin Workers of North .&menca, Local No 1139, 10 N. L. R. B. 33; Matter of The
Griswold Manufacturing Company and Amalgamated Association of Iron, Steel, and Tin
Workers o f North America, Lodge No. 1197 , 6 N. L. R. B. 298; Matter of McNeely & Price
Company and National Leather Workers Association, Local No. 30, of the C. 1. 0., 6
N. L. R. B. 800.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees discharged before the strike and upon recognition of the
I. T. U.'s status as exclusive bargaining representative of the com-
posing-room employees. We considered a similar situation in the
Fansteel Metallwtrgical Corporation case,9 and what we said there is
applicable here:
It might be argued that since the Union was demanding as
a condition to reinstatement only something to which they were
entitled under the Act-recognition and collective bargaining-
the respondent in illegally refusing this demand should be con-
sidered as discriminatorily refusing to reinstate the strikers.
We do not take this view. So long as the employees were un-
willing to return to work under the conditions existing at the
time the strike was called, however just the grounds on which
their position was based, it cannot be said that the respondent
was refusing to reinstate them.
Accordingly, we shall dismiss the allegations of the complaint in
this regard. However, since the strike was caused by unfair labor
practices, our order will provide for reinstatement of the strikers
upon application.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth in Section
III above, occurring in connection with the operations of the re-
spondents 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
In addition to requiring the respondents to cease and desist from
their unfair labor practices, our order will provide for certain af-
firmative action necessary to effectuate the purposes of the Act.
We have found that the respondents dominated and interfered
with the formation and administration of, and contributed support
to, 'the Association. Under the circumstances, the Association is in-
capable of serving as a true representative of the employees. Ef-
fectuating the policies of the Act requires that the respondents dis-
establish the Association as a representative of its employees, and
our order will so provide.
9Matter of Fansteel Metallurgical Corporation and Amalgamated Association of Iron,
Steel and Tin Workers of North America . Local 66, 5 N L R B 930. The partial reversal
of the Board 's order in National Labor Relations Board v. Fansteel Metallurgical Corpora-
tion, 59 S Ct 400 ( 1939 ), did not concern that portion of the case which we are discussing
here
HORACE G. PRETTYMAN ET AL. 671
The discharged employees would normally be ordered reinstated
with back pay from the date of their discharges to the date of their
reinstatement. However, the circumstances of this case make ap-
propriate a modification of the usual order. As set forth above,
Falstreaux, David Brown, Mattingly, Jennings, and Chamblin were
discharged on February 18, and Sobecki on February 16, 1938. Once
the strike was called, however, they all joined the ranks of the other
strikers, and it is apparent from the record that they subsequently
shared the attitude of the others that they would not return to work
unless an agreement settling the strike was reached between the
respondents and the I. T. U. Thus, one morning during the strike,
Beatty asked Falstreaux to come back to work, and Falstreaux told
him "I did not care to go back to work unless they all went back."
The exact date of this occurrence does not appear. In any event, we
think that Reifin's letters of March 3 and March 12, together with
the communication from the strikers accompanying the March 12
letter, adequately show that by March 12 all six of these men had
taken a stand against returning to work without settlement of the
whole controversy between the respondents and the I. T. U. Thus,
the communication accompanying Reifin's March 12 letter alleged
that many of the signatories had been asked to return to work indi-
vidually, reiterated that all had designated the I. T. U. to negotiate
for them and concluded with the following paragraph :
At any time negotiations for the reemployment of any of our
members is contemplated we would therefore suggest that you
contact Vice-President Barrett, Representatives Lougheed or
Reifin of the International Typographical Union; or Emil
Kuchar or Harold Hoffmeyer, president and secretary respec-
tively of Ann Arbor Typographical Union #154. These officials
will be glad to arrange for a conference date mutually satisfac-
tory in order to negotiate an agreement relative to conditions of
our employment, and we are willing to abide by their judgment
in the matter.
It is apparent that the signatories thus formally indicated their
unwillingness to return without an agreement negotiated by the
I. T. U. This communication was signed by Jennings, Chamblin,
Falstreaux, Sobecki, David Brown, and Mattingly, among others,
and was delivered to the respondents on March 12.
We have considered this type of question before. In Matter of
Hemp & Company of Illinois,10 certain workers had been unlawfully
locked out by the respondent in that case. At the hearing they took
the position that they would not accept an offer of reinstatement un-
10Matter of Hemp & Company of Illinois, a Corporation and Federal Labor Union, Local
No. 21284, 9 N L. R. B 449.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less the respondent would recognize the Union as their bargaining
representative. Prior to the hearing, three of the men had rejected
individual offers of reemployment for the same reason. In discuss-
ing the question of back pay, we stated :
We have refused to award back pay to employees who vol-
untarily go on strike, even if in protest against unfair labor
practices. The reasons for that policy impel us to suspend
the accrual of back pay in this case from the date of the hear-
ing to the date of application for reinstatement as to all the
union men except the three who rejected an offer to return to
work prior to the hearing. As to those three men, the dates
from which the accrual of back pay shall be suspended shall be
the dates when they, respectively, refused to accept an offer of
reinstatement.
We shall make the same provision here. Back pay will be awarded
to Jennings, Chamblin, Falstreaux, David Brown, and Mattingly
beginning February 18, and to Sobecki beginning February 16, 1938,
but shall be suspended from the time they assumed the position of
the strikers generally that they would not return without an I. T. U.
agreement. The exact date on which their back pay stops is not
clear from the record. In view of their letter quoted above, it would
be March 12 at the latest. However, the statement in the letter that
many of the signatories had been asked individually to return to
work, would indicate that some of these men may have rejected rein-
statement offers prior to March 12. It is clear that Falstreaux de-
clined such an offer, although the date is not shown. We conclude
that back pay for these men should stop on March 12 at the latest,
and at an earlier date in the case of any of them who rejected offers
of reinstatement before then.
Jennings will be entitled also to back pay from January 5, 1938,
to February 14, 1938, the date when he was temporarily restored
to his job.
Virgil Brown shall be awarded back pay from the time of his dis-
charge to the time he received employment in Monroe, Michigan, as
set forth above. Since he does not desire reinstatement, there will
be no order to reinstate him.
In all cases, the back pay shall consist of a sum equal to the amount
the employee would normally have earned from the respondents as
wages or salary during the period for which back pay is ordered, less
the employee's net earnings during such period."
"By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondents , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
HORACE G. PRETTYMAN ET AL. 673
Since the strike was caused by the respondents' unfair labor prac-
tices we shall, in accordance with our usual custom, order the re-
spondents, upon application, to offer reinstatement to their former
or substantially equivalent positions to those employees who went out
on strike and have not since been fully reinstated. This includes
the discharged employees who assumed the status of strikers. Such
reinstatement shall be effectuated in the following manner: All em-
ployees hired after the commencement of the strike shall, if necessary
to provide employment for those to be offered reinstatement, be dis-
missed. If, thereupon, by reason of a reduction in force there is not
sufficient employment immediately available for the remaining em-
ployees, including those to be offered reinstatement, all available posi-
tions shall be distributed among such remaining employees in ac-
cordance with the respondents' 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 ex-
tent as has heretofore been applied in the conduct of its business.
Those employees remaining after such distribution, for whom no em-
ployment is immediately available, shall be placed on a preferential
list prepared in accordance with the principles set forth in the previ-
ous sentence, and shall thereafter, in accordance with such list, be
offered employment in their former or in substantially equivalent
positions, as such employment becomes available and before other
persons are hired for such work.
Each of the employees thus ordered reinstated or placed on a
preferential list shall also be entitled to back pay beginning 5 days
after his application for reinstatement pursuant to our order, in the
event that the respondents do not reinstate him or place him on a
preferential list in accordance with our order within such 5 days.
Such back pay, if it becomes due, shall be computed in the manner
described hereinbefore.
The respondents will also be ordered to bargain collectively with
the I. T. U. upon request as the exclusive representative of all
employees in the appropriate unit.
THE PETITION
In view of the findings in Section III above as to the appropriate
bargaining unit and the designation of the I. T. U. by a majority
of the respondents' employees in the unit as their bargaining repre-
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440 Monies received
for work performed upon Federal , State, county, municipal , or other work-relief projects
are not considered as earnings , but shall be deducted from the sum due the employee, and
the amount thereof shall be paid over to the Federal , State, county, municipal, or other
government or governments which supplied the funds for said work -relief projects.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative, it is not necessary to consider the petition of the I. T. U.
for certification of representatives. Consequently the petition will be
dismissed.
Upon the foregoing findings of fact and upon the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Typographical Union, Local No. 154 of the Inter-
national Typographical Union, and Independent Association of Ann
Arbor Press Employees, Inc., are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of, and contributing support to, the Independent Association
of Ann Arbor Press Employees, Inc., the respondents have engaged
in and are engaging in unfair labor practices within the meaning of
Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Virgil Brown, Joseph Sobecki, George Kerby Jennings, Louis
Falstreaux, William Mattingly, David Brown, and Nicholas Cham-
blin, thereby discouraging membership in the International Typo-
graphical Union, the respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (3) of the
Act.
4. All employees in the respondents' composing room, with the
exceptions indicated in Section III D 1 above, constitute a unit ap-
propriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the Act.
5. International Typographical Union was on February 18, 1938,
and at all times thereafter has been, the exclusive representative of all
employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
6. By refusing to bargain collectively with the International Typo-
graphical Union as the exclusive representative of all the employees
in the above-stated unit, the respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8
(5) of the Act.
7. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
HORACE G. PRETTYMAN ET AL. 675
9. The respondents have not engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act by refusing to rein-
state the strikers.
ORDER
Upon the basis of the above findings of fact and conclusions of
law and upon the whole record, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Horace G. Prettyman
and Arthur J. Wiltse, copartners doing business as The Ann Arbor
Press, and their agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the admin-
istration of Independent Association of Ann Arbor Press Employees,
Inc., or with the formation or administration of any other labor
organization of their employees, and from contributing support to
Independent Association of Ann Arbor Press Employees, Inc., or any
other labor organization of their employees;
(b) Recognizing the Independent Association of Ann Arbor Press
Employees, Inc., as the representative of any of their employees for
the purpose of dealing with the respondents concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or condi-
tions of work;
(c) Discouraging membership in International Typographical
Union, or any other labor organization of their employees, by dis-
criminating in regard to the hire or tenure of employment or condi-
tion of employment of any of their employees;
(d) Refusing to bargain collectively with International Typo-
graphical Union as the exclusive representative of their composing-
room employees;
(e) In any other manner interfering with, restraining, or coerc-
ing their employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the
National Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from the Independent Association
of Ann Arbor Press Employees, Inc., as the representative of any of
their employees for the purpose of dealing with the respondents
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work, and completely disestablish the
169134-39-vol 12-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Independent Association of Ann Arbor Press Employees, Inc., as
such representative;
(b) Upon request, bargain collectively with International Typo-
graphical Union as the exclusive representative of their composing-
room employees, in respect to wages, rates of pay, hours of employ-
ment, and other conditions of employment;
(c) Upon application, offer to those employees who went on strike
on February 18, 1938, and thereafter, and to Joseph Sobecki, George
Kerby Jennings, Louis Falstreaux, David Brown, William Mattingly,
and Nicholas Chamblin, immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to
their seniority or other rights or privileges, in the manner set forth
in Section V above, placing those employees for whom employment
is not immediately available upon a preferential list in the manner
set forth above in said section, and thereafter, in said manner, offer
them employment as it becomes available;
(d) Make whole with back pay the employees ordered to be offered
reinstatement, as well as Virgil Brown, for the periods indicated
in Section V above, computed as therein set forth;
(e) Immediately post notices in conspicuous places in their plant
in Ann Arbor, Michigan, and maintain such notices for a period of
at least sixty (60) consecutive days, stating that the respondents will
cease and desist in the manner set forth in paragraph 1, and that they
are taking the affirmative action set forth in paragraph 2, of this
Order;
(f) Notify the Regional Director for the Seventh Region (De-
troit, Michigan) in writing within ten (10) days from the date of this
Order what steps the respondents have taken to comply herewith.
AND IT Is FURTHER ORDERED that the petition for investigation and
certification of representatives be, and it hereby is, dismissed.
AND IT IS FURTHER ORDERED that the allegations of the complaint
that the respondents engaged in unfair labor practices within the
meaning of Section 8 (3) of the Act by refusing to reinstate the
strikers , be, and they hereby are, dismissed.