The Evening News Association

National Labor Relations Board - Board Decisions

Apr 14, 1964

146 N.L.R.B. 841 (N.L.R.B. 1964)

THE EVENING NEWS ASSOCIATION 841
CONCLUSIONS OF LAW
1. The Respondent , Hot Shoppes , Inc., is engaged in commerce within the mean-
ing of Section 2 ( 6) and (7) of the Act.
2. The Union , Local 295 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating their employees concerning their union and other concerted
activities , the Respondent interfered with , restrained , and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act, and thereby committed
unfair labor practices in violation of Section 8 (a) (1) of the Act.
4. By refusing to reinstate on the dates set opposite their names the 22 strikers
listed in Appendix A to this report , although they had unconditionally applied for
reinstatement , and by discharging Mario Laboy, the Respondent discriminated with
respect to the hire and tenure of employment of these employees , and committed
unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act.
[Recommended Order omitted from publication.]
APPENDIX A
LIST OF STRIKERS WHO MADE UNCONDITIONAL APPi ICATIONS
FOR REINSTATEMENT
Date of first
Name of striker: application
Juan Zapafa___________ January 5
Rinneceo Nelson_______ January 7
Juan Fernandez------- January 11
Carlos Pardo__________ January 11
Wayne Blasi__________ January 11
Jean Claude Dorsainvil_ January 17
Rene Sardinas --- ------ January 17
Luis Alvarado -------- January 17
Wilberto Melendez____ January 17
Ismael Areizaga _______ January 17
Eluterio Rivera_ _______ January 17
Date of first
Name of striker: application
Felipe Rivera -------- January 17
Anthony Giammusso__ January 17
Renaclides Fonesca___ January 17
Joaquin Rubio_______ January 17
Henry-Dunn, Jr------ January 17
David Gonzales------ January 17
Joe Nowaski_________ January 17
Juan Seda___________ January 17
Juan Toscano________ January 17
Pablo Vasquez_______ January 17
Edward (Joe) Harding- January 17
The Evening News Association , Owner and Publisher of The
Detroit News and Newspaper Guild of Detroit, American
Newspaper Guild , AFL-CIO. Case No. 7-CA-3985. April 1¢,
1964
DECISION AND ORDER
On December 9, 1963, Trial Examiner William J. Brown, issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Decision. and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
146 NLRB No. 101.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, and the exceptions and briefs, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.'
' At the hearing , and in his Decision , the Trial Examiner viewed as immaterial certain
evidence proffered by the General Counsel relating to strike layoffs at other newspapers,
but he received such evidence at the hearing in the nature of offers of proof . Even upon
consideration of this data , we are unable to conclude that the allegations of the complaint
are supported by a preponderance of the evidence.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended , hereinafter sometimes referred to as the Act, originated with a charge filed
November 1, 1962, by the above-indicated Charging Party, hereinafter sometimes
referred to as the Guild . The complaint, issued by the General Counsel of the Na-
tional Labor Relations Board acting through the Regional Director for the Board's
Seventh Region on May 10, 1963, alleged the commission by the above-indicated
Respondent , hereinafter sometimes called the News, of unfair labor practices defined
in Section 8 (a) (1) and .(3) of the Act. Respondent 's answer denied the commis-
sion of the unfair labor practices alleged and set forth certain affirmative matters
purporting to negate the assertions of the complaint.
Hearing was held on the issues raised by the complaint and answer before Trial
Examiner William J. Brown at Detroit , Michigan , on September 17 and 18, 1963.
The parties appeared as noted above and participated fully in the hearing with full
opportunity to present evidence and argument on the issues . Subsequent to the hear-
ing all parties filed briefs with me which have been fully considered,
Upon the entire record in this proceeding , and on the basis of my observation of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
The News is a corporation organized under the laws of the State of Michigan.
Its principal office and place of business is at 615 West Lafayette Street in Detroit,
Michigan , where it is engaged in the publication of a daily and Sunday newspaper.
During 1962 the News received news material from and furnished news material to
several interstate news services ; the News also in that year received newsprint, ink,
and other goods directly from sources outside the State of Michigan and valued in
excess of $500,000 while , at the same time, deriving more than $2,000,000 in gross-
revenue from its publishing operations . The News is an employer engaged in com-
merce within the purview of Section 2(6) and ( 7) of the Act and assertion of juris-
diction on the part of the Board is warranted.
H. THE LABOR ORGANIZATION INVOLVED
The Guild, as appears from the pleadings and evidence herein , is a labor organiza-'
tion within the scope of the definition set forth in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The complaint and' answer: The complaint alleges that from and after May 1,
1962, that being the "Section 10(b) date," the News has maintained and given effect
to a policy and practice whereby, during strikes by any one or more of the several
labor organizations representing particular groups of News employees , the News
lays off all nonstriking employees represented by other labor organizations while
retaining in full employment all of its employees who are not represented by any
.THE EVENING NEWS ASSOCIATION 843
labor organization. The sole exception, to, the alleged policy, according to the com-
plaint, is that certain indispensable employees are kept at work notwithstanding that
they may be represented by a labor organization.
The complaint further alleges that, pursuant to the aforesaid policy, the News,
during strikes from April 20 to May 9, 1962, retained in employment all its non-
represented employees (notwithstanding that most did not have work to perform)
while laying off all nonstriking employees who were represented by labor organiza-
tions with the exception of certain employees represented by the Guild and others
represented by a lodge of the International Association of Machinists. ,
The complaint requests that the News be required to discontinue the aforesaid
.policy and, by way of affirmative relief, be required to make whole by backpay with
interest those employees represented by the Guild, by Detroit Stereotypers Union
No. 9, International Stereotypers andElectroplaters Union of North America, AFL-
CIO, hereinafter the Stereotypers, and by Local 12, Detroit Photo-Engravers Union
of North America, AFL-CIO, hereinafter the Photo-Engravers.
Respondent's answer denies the existence-of the general policy alleged in the com-
plaint, asserts that some nonrepresented employees were laid off during the strike
periods in question and that certain represented employees were retained. The
News further asserts by way of answer that affirmative relief cannot be granted as
to employees represented by the Stereotypers or the Photo-Engravers since no charge
was filed by or on behalf of them and, further, that its actions in retaining certain
employees while laying off others during the strike periods in question were motivated
solely by the economic necessities of its publishing operations.
B. Operations of the News-employees and their unions: The News publishes daily
and Sunday editions as also does its sole Detroit competitor, the Detroit Free Press.
The News employs a total of 2,650 persons (exclusive of radio. and television per-
sonnel) and has a circulation of 723,000 daily and 951,000 Sunday; the Free Press
employs 1,400 persons and has a circulation of 550,000 daily and 600,000 Sunday.
The initial step in publication of the News is the gathering, writing, and editing of
news and features, taking of photographs, and securing of advertising. Actual
production commences in the composing room where written material is set by
typographers represented by Detroit Typographical Union No. 18 under an agreement
executed June 11, 1962, and effective for the period December 1, 1961, through No-
vember 30, 1963. Pictorial matter is processed onto plates by photoengravers who
are represented by Detroit Photo-Engravers Union No. 12 under an agreement ex-
ecuted May 8, 1962, effective for the period December 1, 1961, to November 30,
1963. Forms are then converted into matrices and plates by stereotypers represented
by Detroit Stereotypers Union No. 9 under an agreement executed December 21,
1961, and covering the period December 1, 1961, through November 30, 1963. The
plates, together with newsprint rolls, are transported to the pressroom by employees
represented by Detroit Paper Handlers and Plate Handlers Union No. 10 under an
agreement executed March 23, 1963, and covering the period ending November 30,
1963. Pressroom employees are represented by Detroit Newspaper Printing Press-
men's Union No. 13 under an agreement covering the period November 28, 1962,
to February 29, 1964. From the presses the newspapers go to the mailroom where
employees represented by Detroit Mailers Union No. 4 under an agreement effec-
tive for the period December 21, 1961, through November 30, 1963, assemble the
papers, handle inserts, and route the papers. Thence the paper is distributed by
employees represented by Newspaper Drivers and Handlers Local No. 372, affiliated
with the Teamsters International, under an agreement signed April 16, 1963, and
covering the period November 16, 1961, through November 15, 1963.
In addition, maintenance and motor utility electricians are represented by IBEW
Local No. 38; men working in the operation and maintenance of heating and air-
conditioning equipment are represented by IUOE Local No. 547; machinists are
represented by TAM District Lodge No. 60; and garage mechanics are represented by
TAM District Lodge No. 60 on behalf of Lodge No. 698. Finally, janitors, watch-
men, and maids are represented by the Guild. These employees, about 88 in number,
including 3 maids, the rest being watchmen and janitors, work in the News Build-
ing, the Times Square plant, and at the WWJ-TV building.
The implementation of labor relations policy at the News is entrusted to James
T. Dorris. At the time of the hearing herein Dorris was associate business manager
of the News. Prior to September 1962, and at the time of the events herein mate-
rial, he was assistant business manager.
Since the complaint in this matter alleges disparate treatment on the part of the
News on the basis of the represented vis-a-vis nonrepresented,status of employees it
is necessary to have a clear understanding of the classes of employees who are not
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented . They number approximately 555 and consist of all employees of the
editorial , advertising , business office, promotion , and commercial printing depart-
ments together with clerical and insurance section help in the circulation department.
C. The events of April-May 1962 : For a number of years the News and its sole
competitor , the Free Press , have bargained with certain labor organizations through
the Detroit - Newspaper Association . Some years back there was a third Detroit
newspaper which also participated in the association bargaining . In the early months
of 1962 and continuing up to April 11 the newspaper managements were engaged -in
bargaining with the Teamsters . One particular issue in contention in the Teamster
bargaining in April 1962 , was the union 's demand for changes in the management
prerogatives provisions of the agreement and as to this issue, the News pledged to sup-
port the Free Press to the extent that if the Teamsters struck the Free Press over this
issue , the News would support the Free Press , by suspending publication . As a con- ,
sequence when on April 11, the Teamsters called a strike of its members employed
by the Free Press, the News suspended publication.
Notwithstanding its suspension of publication there do not appear to have been
any immediate layoffs at the News . This may be accounted for by the fact that on
Sunday, April 15 , the News published ( and apparently planned in advance ) a double
masthead paper to which writers of both papers contributed and which was produced
and distributed by the News at its expense.
Early on the morning of April 16 , 1962, the News posted on employee bulletin
boards a notice advising all employees that the News was suspending publication and
that except for a limited number of workers (who would be separately notified) em-
ployees should not report for work until further notice . The notice contained as-
surances that the matter was only one of temporary layoff without termination of
employment . Copies of this bulletin board notice were set forth in telegrams sent
immediately to the chief executive officers of all labor organizations with which the
News had bargaining relations.
On April 19 , 1962 , the Teamsters terminated their strike at the Free Press and
the News prepared to resume publication. Before it could resume , however , the ITU
struck and picketed at both the News and the Free Press. Thereupon the News
again posted bulletin board notices similar to the one posted on April 16 , again send-
ing copies by telegram to the heads of the several labor organizations.
The typographers ' strike at the News continued until May 6, 1962, at which time a
strike on the part of the Plate Handlers started and continued until May 10. On
that date the News resumed publication and so far as the evidence in this instant
case reveals, all employees , strikers , layoffs, and those who had continued work re-
sumed steady employment.
As noted above the complaint herein alleges the commission of unfair labor prac-
tices both with respect to the maintenance of a general policy and as to layoffs in the
period April 20 to May 10 , 1962 . The evidence is uncontradicted that there were no
layoffs in the unrepresented departments of the News during the period in question.
D. Evidentiary rulings at the hearing: As can be seen from the foregoing discus-
sion of the issues and the factual pattern giving rise to them , the General Counsel
assumed the burden of establishing by a fair preponderance of the evidence that (1)
the News in the period in question maintained a policy of discriminating against
represented employees by laying off organized employees whenever a strike occurred
while simultaneously keeping at work its nonorganized employees notwithstanding
that there was no work available for most of the latter , and (2 ) the News effectuated
this policy during the period May 1 through 11, 1962 , with resultant damage to cer-
tain organized employees.
The presentation of the General Counsel 's evidence commenced with testimony of
Donald Schramm , a reporter for the Free Press who is also immediate past president
and presently an executive board member of the Guild , designed to establish that at
the Free Press employees in the editorial , advertising, business , and miscellaneous
departments were laid off in the period in question thus tending to indicate (in the
theory of the General Counsel ) that the retention of this class of employees at the
News was not in accordance with normal , i.e., nondiscriminatory newspaper
operations.
Similarly, the concluding witness for the General Counsel would , if permitted,
testify that five New York newspapers where the Newspaper Guild of New York
(with the same International affiliation as the Guild ) has representation similar to
that at the Free Press, the relatively high number of employees laid off would also
establish that the retention of the class of employees at the News was not in accord-
ance with normal , i.e., nondiscriminatory newspaper operations.
THE EVENING NEWS ASSOCIATION 845
The foregoing and similar testimony was excluded at the hearing as not material
to the issues as to what motivated the News. The matter was handled, in the interest
of expedition of the entire matter, by receiving this testimony in the nature of offers
of proof with examination and cross-examination by all parties confined within
portions- of the record which, though physically reported, were understood by all
concerned as not to be regarded by me.
In his brief the General Counsel requests me to reconsider and admit this evidence
which he describes as highly relevant, material, and important. The Charging
Party's brief also requests reconsideration and admission of the excluded evidence
on the basis of evidence received, subsequent to the initial ruling by me, that there
was concerted action between the News and the Free Press. But the concert of
action is plainly shown to have been limited to situations where the News and
Free Press were confronted with the same labor organizations for the same groups
of employees. The evidence here is uncontradicted that there are material distinc-
tions between representation at the two papers, for the Guild represents building
service employees at the News whereas this group is not represented by the Guild
at the Free Press; furthermore, the editorial, advertising, and business departments
which are represented by the Guild at the Free Press are unrepresented at the News.
As pointed out above there are substantial differences in size between the two
Detroit newspapers both as to circulation and number of employees. Furthermore,
although there has been concert of action between the two papers there is not shown
to be any as respects the Guild. These considerations and evaluation of the entire
record indicate to me that the issues should be adjudicated without consideration to
the matter excluded at the hearing. The testimony is perpetuated if it should be-
come necessary to consider it. On consideration of the entire record and the briefs
of the parties, the Trial Examiner adheres to his ruling excluding testimony relating
to layoffs at other newspapers as outlined above.
E. The maintenance of the discriminatory layoff-retention policy: The General
Counsel's brief skillfully advances the strongest position that can be asserted on the
basis of the evidence in the case. This essentially consists of two arguments:
(1) that the facts of the newspaper business, shown by reliable testimony herein
to be integrated in nature are such that a situation where most of the represented
employees are laid off while simultaneously none of the nonrepresented employees
are laid off is a res ipsa loquitur situation wherein the logically inescapable inference
is that the News maintained the discriminatory policy asserted in the complaint; and
(2) admissions contained in the testimony of Dorris in an earlier proceeding, The
Evening News Association, et al., Cases Nos. 7-CA-3683 (1)-(9), et al., presently
pending before the Board on exceptions to Decision of Trial Examiner Harold X.
Summers, establish the existence of the policy in question [145 NLRB 996.]
With respect to the matter of integration of operations the record herein indicates
and, indeed, is in accord with commonsense, that there is a complete interdependence
between and among certain of the mechanical crafts. This would be, perhaps, most
strikingly illustrated by the fact that if the plate and paper handlers failed or refused
to transport plates and rolls to the pressroom the pressmen would have nothing to
feed into the presses. There is a similar interdependence among the editorial and the
mechanical classifications from beginning to end; for if the reporters did not write
stories there would be nothing for the typographers to set in forms and commence
the mechanical processes.
But it is by no means certain on the record herein, or as a matter of logic and
sense, 'that the interdependence flows in the reverse order. For it is evident that the
reporters might write for future publication, the advertising solicitors might solicit
for future insertion or as a matter of maintaining contracts for continuance of an
established line of dealing with future business in mind. In other words there is
a logical possibility that a shutdown of the mechanical trades would still leave the
editorial, advertising, and business offices with work to do. Furthermore there is
nothing to contradict Dorris' testimony in the earlier proceeding that that is in effect
what occurred.
In appraising the evidence in this matter I think it advisable to avoid undue reliance
on the fact that the editorial-advertising-business group was unrepresented. "Un-
represented" may become a mere shibboleth tending to obscure the emphasis that
must be placed on the General Counsel's burden of proof. Falstaff Brewing Cor-
poration, 128 NLRB 294, mod. 301 F. 2d 216 (C.A. 8). I believe it proper to
regard the employee groups, in the first instance, from the viewpoint of what they
do as distinguished from whether they are represented or nonrepresented insofar as
we seek, to appraise the contention that integration and logic require the conclusion
that the discriminatory policy alleged in the complaint exists.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find and conclude, both on the evidence herein as to the extent of so-called
integration of the work of those departments of the News wherein employees are
represented with those wherein employees are not represented and on logic, that
it cannot be said that the work of the editorial, advertising, and business depart-
ments is so dependent on the mechanical operations of the publishing process that
it would be a relatively unthinkable thing to shut down those departments on a shut-
down of the printing departments. The integration showing falls short of impelling
one inevitably to conclude that the person responsible was acting either completely
illogically or with malicious or devious designs on employee representation. While
there might be cause to suspect a practice of retaining the editorial, advertising, and
business department workers over long periods of time while the publication de-
partments were shut down, we are here dealing solely with the events of the spring
of 1962 when the parties were actively bargaining on a day-to-day basis and full scale
resumption was a day-to-day probability. I cannot conclude that the retention of
the editorial, advertising, and business departments is shown to have been motivated
by hostility to organization of those departments by the Guild or by any other
group.
The case for the General Counsel is even more seriously damaged by the un-
contradicted evidence that the Guild members at the News were not in fact laid off
en masse during the April-May 1962 strike period. Their records of hours worked
are in evidence and clearly establish that in the three classifications involved-
janitors, maids, and watchmen-all employees continued their regular 40-hour weekly
employment throughout the period April 15 to May 5, and in fact during the period
May-.6 to 11, almost every employee had some employment. There were, it is
true, some layoffs in the period May 6 to 11 but the undisputed evidence is to the
effect that they were in accordance with the seniority provisions of the Guild contract.
Nor does the record indicate that those retained during layoffs were retained only
because they were absolutely indispensable and would otherwise be laid off. In
short. the record indicates that those retained had work to do and did it while those
laid off had no work to do.
Turning°to the admissions contained in the testimony of Dorris in the earlier hear-
ing, it cannot be concluded therefrom that the existence of the discriminatory layoff
policy is established. In pertinent part the testimony there given by Dorris, called
as a witness by the News, is to the effect that throughout the period April 11 through
May 10, 1962, there were no layoffs in the editorial, advertising, business , promotion,
and commercial printing departments and that those departments had a total payroll
of some 555 employees and were not represented by any labor organization . Dorris
further testified that the basis of the decision to keep them on was that there was work
for them to do. Dorris further testified that there have been other instances where
the editorial and business office and some others have worked while organized people
have not worked and that this was the policy in the past. He testified further that
the people retained performed their regular work, that the advertising people, though
not taking advertisements, were making contacts constantly, and that the editorial
department was accumulating material for possible future publication.
The evidence furnished by Dorris in the earlier proceeding is, like the evidence as
to integration, insufficient to establish that the News maintained the policy com-
plained of. Rather, it indicates that the policy was to retain employees of the
editorial and other departments because there was work. There is no basis in the
record in this case for a finding that there was no work. The General Counsel points
to testimony of Dorris (in the earlier case) that the News was not "taking advertis-
ing"; but the same testimony reveals that the News advertising department employees
were constantly making contacts.
General Counsel to attack this testimony, points to General Counsel's Exhibits
Nos. 17 and 19 which are respectively a summary of the News' advertising depart-
ment telephone expenses in the period April to July 1962 and advertising lineage
appearing in the News daily from April 1 to May 30, 1962. General Counsel con-
tends that these exhibits establish that the advertising department was virtually at a
standstill on the crucial period of April 11 to May 10. General Counsel's Exhibit
No. 17 fails to show anything remotely like a standstill in telephone activity. And
Exhibit No. 19 merely shows that while the News was not publishing there was no
advertising printed. This fails to indicate absence of activity in the advertising
department.
F. The alleged discriminatory layoffs: As noted above, the complaint alleges that
the News, in accordance with the policy considered above, laid off 33 janitors and
I maid , all Guild represented, for the period from on or about May 6 to on or about
May 10. These layoffs are alleged to constitute an unfair labor practice within the
scope of Section 8(a)(3) of the Act. By way of specific request for affirmative
THE EVENING , NEWS ASSOCIATION 847
remedial relief in this case , the complaint requests backpay (but not reinstatement, as
apparently all News employees returned to work by May 11, 1962) not only for the
33 j'anito'rs and 1 maid represented by, the Guild but. also for employees represented
by the Stereotypers and the Photo-Engravers. The names of employees in these
latter groups appear in General Counsel's Exhibit No. 15.
The News attacks the request for-relief -insofar as the Stereotypers and Photo-
Engravers are concerned on the basis that no charge had ever been properly filed at
any time prior to issuance of the complaint in which'Respondent was advised of the
involvement of the Stereotypers and the Photo-Engravers. The evidence as, sum-
marized above,-reveals that the News suspended publication April 11 and except for
the double masthead of April 15, 1962, did not publish until May 12, 1962. Except
for the work in connection with the April 15 double masthead, the evidence indicates
that the mechanical crafts including the stereotypers and photoengravers were laid
off in the period commencing with the voluntary suspension on April 11 until full-scale
resumption on May 12.
The charge herein appears sufficient to warrant inclusion in the complaint of the
allegations of discriminatory layoff as to all organized employees and I reject Re-
spondent's contention that the matter of layoffs of stereotypers and photoengravers'
may not be considered herein. But as outlined above, I find on the merits of the
case that no unfair labor practice has been demonstrated warranting the recommenda-
tion of relief as to them. 1.. "'' • 4
Turning to the case of the Guild employees, the complaint alleges the discrimi-
natory layoff of the 33 janitors and 1 maid during the period May 6 to 10 and that
the layoff was effected pursuant 'to the'alleged policy referred to above. I have found
that the evidence is insufficient to preponderate in favor of. finding,the maintenance
of any such ' policy. Therefore the allegations of discriminatory layoff cannot be
considered precisely as alleged. But it appears necessary and' proper to consider
whether there was discriminatory treatment of Guild members even though it may
not have been of the precise character as that contemplated in the complaint. See,
Rocky Mountain Natural Gas-Company, Inc., 140'NLRB 1191.
Laying aside the question of whether or not the Guild-member employees of the
News are subjected to the "policy" referred to in the complaint there appears to
remain the question of what indications appear from the record to indicate discrimi-
natory motivation in the layoffs of the 33 janitors and the I maid. The undisputed
evidence reveals that notwithstanding suspension of publication from April 11 until
May 12, 1962 (except for the April 15 double masthead), the Guild members were
kept at work without interruption up until May 6. Then out of the 88 employees
in the Guild unit, 33 were laid off for 2 or 3 days. These layoffs were in accordance
with seniority and the list of employees to be laid off was delivered in advance to the
Guild shop chairman.
The burden is not on the News to justify the layoffs. This is particularly true
where, as here, there has been a history of contractual relationship going back some
50 years and, in the case of the Guild, as far back as to 1944. The agreements con-
tain union-security provisions and it is undisputed that the Guild is not seeking
representation in any broader unit. Respondent, it would appear, correctly appraises
the case as one in which a finding of discrimination within the scope of Section
8(a)(3) depends upon some showing of motive to discourage union activity. See
Local 357, International Brotherhood of Teamsters, etc. (Los Angeles-Seattle Motor
'Express) v. N.L.R.B., 365 U.S. 667, 680.
The record here indicates that unlike the case of editorial employees who could
(and apparently did) write for future publication or for the library, and advertising
employees who could (and did as appears from telephone expense charts) solicit
and maintain contacts, there was less work for the janitors and maid when the presses
were not rolling.
I conclude that the General Counsel's burden of proving discrimination within
the scope of Section 8(a)(3) has not been met.
Upon the basis'of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. The News is an employer engaged in commerce within the purview of Section
2(6) and (7) of the Act.
2. The Guild is a labor organization within the purview of Section 2(5) of the Act.
3. The News is not shown to have engaged in the unfair labor practices alleged in
the complaint.
744-670-65-vol. 146-55
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law it is
recommended that the complaint herein be dismissed.
F. W. Woolworth Co. Store No . 2367 and Retail Clerks Inter-
national Association , Local Union No. 991 , AFL-CIO. Case
No. 19-CA-2666. April 14, 1964
DECISION AND ORDER
On January 21, 1964, Trial Examiner William E. Spencer issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Charging Party filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the Respondent filed an
answering brief in support of the Trial Examiner's Decision.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations with the following modification.
We agree with the Trial Examiner that the Respondent's refusal
to bargain with the Union did not violate Section 8(a) (5) and (1)
of the Act under the circumstances of this case. The Union, which
was certified on May 23, 1962, thereafter executed a contract with the
Respondent effective until July 16, 1963. Pursuant to the reopening
provision of the contract, the Union, on May 16, 1963, sent a notice to
the Respondent that it desired to negotiate a new contract, and re-
quested a meeting for this purpose to be held during the week of
June 3. The Respondent, however, as the Trial Examiner found,
had a good-faith doubt that the Union continued to represent a
majority of its employees, and had filed a timely petition for an
1 The Charging Party's request for oral argument is hereby denied as, in our opinion, the
record , including the exceptions and briefs, adequately presents the issues and the positions
of the parties.
146 NLRB No.. -102.