The John J. Corbett Press, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1967

163 N.L.R.B. 154 (N.L.R.B. 1967)

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Equitable Life Insurance Company and
Insurance Workers International Union,
AFL-CIO. Case 8-CA-3482.
February 27, 1967
SUPPLEMENTAL DECISION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
The John J . Corbett Press , Inc. and The New
Haven Typographical Union No . 47, a/w
International Typographical Union,
AFL-CIO. Case 1-CA-5421.
February 28, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On October 30, 1964 , the National Labor
Relations Board issued a Decision and Order in the
above-entitled proceeding,' finding that the
Respondent had refused to bargain collectively with
the Charging Party as the duly certified bargaining
representative of employees in the unit found
appropriate by the Board , in violation of Section
8(a)(5) and ( 1) of the National Labor Relations Act, as
amended, and ordering it to cease and desist
therefrom and to take certain appropriate action.
Thereafter , because of developments in court
litigation involving the Board 's unit determinations
in the insurance industry , the Board decided to
reconsider its findings in this case . Therefore, on
October 4 , 1966 , the Board issued an order granting
leave to the parties to file briefs directed to the unit
finding. Briefs were thereafter duly filed by the
Respondent and the General Counsel.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three - member panel.
The Respondent argues that the Board , in finding
that certain employees constituted a unit
appropriate for the purposes of collective
bargaining , was controlled by the extent of the
Union 's organization , and that the unit
determination was invalid under Section 9(c)(5) of
the Act . For the reasons heretofore set forth in the
Board 's Supplemental Decision and Order in
Western & Southern Life Insurance Company, 163
NLRB 138, and in Metropolitan Life Insurance
Company (Woonsocket , R.I.), 156 NLRB 1408, we
find no merit in this argument .2 Accordingly, we
reaffirm the unit finding in our Decision and Order
heretofore issued in this case.
' 149NI.RI3359.
x The unit found appropriate in the present case consists of
debit agents employed at the Respondent ' s district office in
Steubenville , Ohio, and the detached office in East Liverpool,
Ohio, with certain specified exclusions . Inclusion of the detached
office derives from the fact that a detached office is administered
as part of the district office and hence is appropriately included
with its parent office even though the two offices may be some
distance apart . See Metropolitan Life Insurance Company
(Woonsocket , R . I.), supra, footnote 22.
On November 10, 1966, Trial Examiner Laurence
A. Knapp issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief. The General
Counsel also filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made 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
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, The John J.
Corbett Press, Inc., New Haven, Connecticut, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
' Respondent's request for oral argument is hereby denied as
the record, including the exceptions and briefs, adequately
reflects the issues and the positions of the parties.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LAURENCE A. KNAPP, Trial Examiner: This case was
heard in New Haven, Connecticut, on July 26-27 and on
163 NLRB No. 15 163 NLRB No. 26
THE JOHN J. CORBETT PRESS, INC. 155
August 16, 1966, pursuant to pretrial proceedings in
compliance with the underlying statute, the National
Labor Relations Act, as amended (herein called the
"Act").' In relation to motions to dismiss advanced by
Respondent at the hearing some oral argument was heard;
those of Respondent's motions upon which decision was
reserved are hereby denied. Following the hearing briefs
were submitted by counsel for the General Counsel and for
the Respondent, which I have considered. Upon the entire
record in the case,2 including my observation of the
demeanor of the witnesses, I make the findings of fact and
the conclusions of law which follow herein:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT; THE LABOR
ORGANIZATION INVOLVED
Respondent is engaged in the commercial printing
business in New Haven, Connecticut. As will be seen, in
the General Counsel's view, Respondent has been in the
past and still is a member of a multiemployer bargaining
unit composed of various commercial printing concerns in
New Haven. Hence, for jurisdictional purposes, it is
appropriate to combine Respondent's purchases or sales
with that of the other members of the alleged
multiemployer group. Accordingly, counsel stipulated at
the hearing that the direct out-of-State shipments of the
products of Respondent and of the other members of the
alleged employer unit exceed $50,000 in value per year.
Accordingly, Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and it will
effectuate the policies of the Act for the Board to take
jurisdiction in this case.
The Union, fully named in the caption, is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
a. The Determinative and Uncontradicted Facts
The General Counsel and Respondent called one
witness each,3 and there is no conflict in their testimony or
elsewhere in the material evidence. The salient facts so
established are few and simple.
For a period of about 15 years, certain commercial
printing establishments in New Haven have, under the
name "New Haven Employing Printers," bargained
collectively and entered into series of consecutive
agreements with the Union, determining thereby the
wages, hours, and other employment terms of all
composing room employees of the employing firms. The
actual companies so associated together under this name
have increased over the years. There were four in the
beginning. With later accretions, the "membership" had
reached eight at the times (1965-66) pertinent to this case.
Such dealings with the Union on employment matters
appear to have constituted the sole purpose and function
of "New Haven Employing Printers" (herein denominated
"Employing Printers" for convenience sake).
There is no evidence that the Employing Printers is an
entity or association in any way formally organized, that is,
that it has any charter, bylaws, or other formal
organizational structure or procedures.4 Over the years
Employing Printers have continuously had a
representative for purposes of dealings with the Union.
The occupant of this post has varied from time to time; for
the last 6-8 years, during which some three or four
agreements have been concluded, this representative,
designated or selected in some fashion not disclosed in the
record, has been a Mr. Wayne Elwell, an official of an
organization described in the record as "The Printing
Industry of Connecticut" with offices in Milford,
Connecticut. This representative of Employing Printers,
referred to as "chairman" of their negotiating committee,
has been a principal spokesman in contract negotiations,
and has performed other functions of an administrative
character on behalf of Employing Printers.5 In the 1965-66
negotiations further described below, officials of the
employing companies, including Respondent, likewise
participated, in varying degrees from time to time, with
Mr. Elwell in the bargaining sessions, and I infer that this
practice prevailed in the negotiations leading to prior
agreements. During the last 14 years, there has never been
an instance, after completion of the negotiations, of the
failure or refusal of any company to sign the contract
document embodying the results of the negotiations.
Once negotiated, each contract is embraced in a single
document, with designation of the parties and mode of
signature now to be described. The last contract
I Following an initial and an amended charge, filed on April 12
and May 25, respectively, by the Union named in the caption
(herein usually called "the Union "), the complaint issued under
date of May 31, 1966, and Respondent filed its answer on June 8,
1966.
2 The reporter 's transcript of the proceedings at the hearing
contains an overabundance of errors , principally but not
exclusively in the form of garbled versions of statements made by
the Trial Examiner and counsel , garbles which in various
instances are' so egregious and extensive as to render
indecipherable what was actually said and thus are incapable of
correction . Occurring , however, in the statements of counsel or
the Trial Examiner , or in colloquies between them , these garbles
are not in themselves prejudicial. Those portions of the transcript
involving the actual questioning of witnesses do contain
considerable errors, but these are of the simpler grammatical type
susceptible of identification and correction . In this connection, I
grant the unopposed "Motion to Correct the Record" of counsel
for the General Counsel, mailed August 29, 1966, the unopposed
"Motion to Correct the Record " of counsel for the Respondent,
dated September 26, 1966 ; and on my own motion make further
corrections in the transcript of hearing , it being understood that,
in the case of any conflict, corrections I make shall take
precedence over those contained in the motions of the parties
These aggregate corrections suffice to render the actual
testimony reported in the transcript adequately clear. For this
reason, and because the basic facts are few and uncontradicted,
the transcript , as corrected , may safely remain part of the record.
S Both witnesses were union officials No official of Respondent
testified.
4 From this viewpoint , therefore, "Employing Printers" is no
more than a name It is, nevertheless , a name having group or
collective connotations , and in relation to the "multiemployer
unit" issues presented in this case that fact is entitled to
appropriate weight.
' On the administrative side, the record shows that it was on
Elwell that the Union served notices of termination of prior
agreements (see, for example , G.C. Exh. 3), and that in 1965
Elwell selected the two representatives of Employing Printers
(himself and an official of Respondent ) who, with two
representatives of the Union, were to compose the Joint Standing
Committee provided for under the contract to deal with disputes
concerning contract interpretation . (See G.C. Exh. 2, p. 4, and
G C. Exh. 5, p 5 )
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiated before the events involved in this case (G. C.
Exh. 2) covers the period March 1, 1963, to February 28,
1965, and is entitled "CONTRACT by and between THE,
NEW HAVEN EMPLOYING PRINTERS and THE NEW HAVEN
TYPOGRAPHICAL UNION, No. 47." Its preamble reads as
follows:
THIS AGREEMENT, made and entered into this 3rd day
of July, 1963, by and between the NEW HAVEN
EMPLOYING PRINTERS (hereinafter sometimes
referred to as the "Employers"), through its
authorized representatives and THE NEW HAVEN
TYPOGRAPHICAL UNION, No. 47 ......
At the end of this contract appears the language:
It is agreed that the only parties to this agreement are
New Haven Employing Printers of New Haven and
New Haven Typographical Union, No. 47.
Below this provision for signing purposes appears the
language:
FOR THE NEW HAVEN EMPLOYING PRINTERS:
followed by the name of each company with the signature
of an official thereof." Identical language appears at the
beginning and end of the agreement concluded in 1966
(General Counsel's Exhibit 5).
On December 23, 1964, the Union served notice of the
termination of the 1963-65 agreement upon Mr. Elwell (G.
C. Exh. 3) and of its desire to negotiate a new agreement
with the Employing Printers. Such negotiations began on
February 22, 1965, and between then and the end of
November 1965, some 16 bargaining sessions were had.
Representing the employers in these negotiations were
Mr. Elwell and officials of the companies, the latter
varying in number and identity from time to time but at
one session , at least, officials of all the companies
participated. By the time of a meeting held in late
November, agreement had been reached on the bulk of
matters involved; matters not resolved included the
Union's proposal for a pension plan, some matter of
language relative to the provisions for the Joint Standing
Committee, and perhaps one or another matter not
identified. At the suggestion of the employers'
representatives, the Union put the matters so far agreed to
by the parties to a vote of the union membership, which
was negative. There then took place a further bargaining
session on January 14, 1965, at which the employers
agreed to the Union's pension proposal. With this matter
resolved, the union membership then voted approval of the
6 The provisions of the 1963-65 agreement relative to the Joint
Standing Committee refer to the representatives of "each party"
to the agreement , and to the necessity that the Committee meet
when any question shall have been referred to it by the "executive
officers" of "either party" to the agreement . Similar references
are contained in the comparable provisions of the current
agreement.
' Prior to this time, as later described , Respondent had
transmitted to Mr. Elwell and the Union a letter purporting to
withdraw from the Employing Printers and terminating its
authority to negotiate further for Respondent Because of this
letter, Mr Elwell, who obtained the signatures of the employing
companies , informed the Union that he did not intend to present
the agreement to Respondent and that the Union, which had the
responsibility for printing the "binder," should omit Respondent's
name from the list of signers , which was done
" It appears that prior to about December 1, Respondent
employed three composing room employees, all of whom were
members of the Union , but that about this time Respondent
discharged the three employees and thereafter employed no union
"agreement." Considerable time then elapsed while the
agreement was being printed up in three-column form. By
April 12, 1966, this form of agreement, referred to as a
"binder" in the record, had been prepared and signed by
the officials of the Union and by all members of Employing
Printers except Respondent, whose name was omitted.'
There then elapsed a further delay caused by the time
consumed in printing the agreement in the usual final
booklet form (G. C. Exh. 5). By June this was
accomplished and the agreement, in this final form, was
thereupon executed by the Union and the seven employing
companies. The Union then forwarded the contract to its
parent International Typographical Union at Denver,
Colorado, for the requisite approval of the International,
an approval accorded while this case was at hearing.
In the course of these events, that is, on December 8,
1965, Respondent sent to Mr. Elwell (with a copy to the
Union) a letter reading as follows:
Dear Mr. Elwell:
The Members of International Typographical Union
Local 47, have left the positions they held in my
composing room. There are no longer any I. T. U.
members employed at Corbett Press.8
I, therefore, am withdrawing from the New Haven
Union Employing Printers Multiple Bargaining Unit,
which negotiates with I. T. U. Local 47, effective
immediately.
I withdraw my designation of authority from this
group to represent me in future negotiations with
International Typographical Union, Local 47.
Very truly yours,
The John J. Corbett Press
(sgd) Robert E. Frankes
Robert E. Frankes
Vice President
About mid-December, Ford, the union president, met
with Robert Frankes, Respondent's vice president, at
Respondent's offices, and during the meeting asked
Frankes whether Respondent would sign "the contract the
Union was going to vote on." Frankes hesitated for some
appreciable time and then said he would telephone Ford
later, which he did not do.9 Ford met again with Robert
members These events, sketchily referred to in the record, are
not pertinent to the issues herein.
9 Ford was accompanied to this meeting , and another also in
December , by one James Carey who, while a member of the Union
and of its executive board, was also an official of the (presumably
local) Allied Printing Trades Council, an organization of various
printing trades unions whose label Respondent had theretofore
been using but which the Council had voted to withdraw from
Respondent At both of these meetings , Carey, acting as I find as
an official of the Council, made demand upon Respondent for the
return of the label Testifying as Respondent 's witness, Carey
stated that he advanced as reasons for return of the label
Respondent 's discharge of certain union members , its violation of
the "license" (presumably to use the label), and its commission of
unfair labor practices , and denied that the return was requested
because of Respondent's earlier withdrawal from the Employing
Printers . On the basis of this and other evidence I find that there
was not made at either of these meetings any statement by which
the Union consented to Respondent 's earlier attempted
withdrawal from the bargaining group. Nor did any representative
of the Union make any such statement at any other time.
THE JOHN J. CORBETT PRESS, INC.
Frankes at Respondent's offices on April 12, 1966, at
which time he asked Frankes if Respondent would sign the
contract the Union had voted on. Frankes pondered for a
minute or so and then stated that he would not sign it and
told Ford to contact Mr. Sullivan, Respondent's labor
relations representative, for any further information. 10 At
this meeting, Ford in fact had in his pocket the "binder"
agreement already signed by the Union and the seven
other companies but did not exhibit or present it to
Frankes or specifically request or demand that Frankes
sign it. Thereafter on that same day, the Union, by Mr.
Ford, filed its formal charge with the Board's Regional
Director alleging Respondent's violations of the Act by
virtue of its withdrawal from the Employing Printers and
its refusal and failure to sign the contract negotiated with
that group.
Ultimate Findings and Conclusions
The basic and determinative facts are few and
uncontradicted. Over a period of many years the
commercial printers involved have acted and spoken as
one for purposes of bargaining with the Union, adopting for
this purpose, and for contract disputes purposes, the
group named "Employing Printers." Their determination
and agreement to act and speak as one for these purposes
has been signified by their adoption and utilization of the
group name, Employing Printers; by their actual if
informal grant of authority to the group spokesmen (Mr.
Elwell and his predecessors and such officials of member
firms as attended the negotiation sessions) to make during
these sessions commitments binding upon the member
firms; by the embodiment of the terms agreed upon in a
single document; by the uniform acceptance and
execution of that document by the employing firms, once
the actual negotiations were concluded; by the use of
contract language referring to the "Employing Printers"
group as a "party"; and by the creation and utilization of
the "Joint Standing Committee." To these indicia of group
or unitary action, long and consistently manifested by the
conduct of Respondent and the other employers involved,
is to be added Respondent's own characterization, in its
withdrawal letter, of the Employing Printers as a "Multiple
Bargaining Unit," and its reference in that letter to the
preexisting "authority" of the Employing Printers "group"
to "represent" Respondent in negotiations with the Union.
That letter confirms Respondent's recognition of what the
other facts themselves demonstrate; namely, a clear
understandindg prevailing among the members of
i" Mr. Sullivan , one of Respondent's representatives at the
hearing, had participated in various of the negotiation sessions
held prior to December 1965 relative to the 1966 contract
" See, for example, Wards Cove Packing Company, Inc., 160
NLRB 232; Shamrock Systems, Inc., 155 NLRB 1120, The Kroger
Co., 148 NLRB 569, 573, enfd . sub nom Retail Clerks Union, No.
1550, et al, 330 F.2d 210 (C A.D.C., 1964); Sheridan Creations,
Inc, 148 NLRB 1503, 1503-05, enfd. 357 F.2d 245, 247 (C A 2,
1966), Fairbanks Dairy, Division of Cooperdale Dairy Company,
Inc., 146 NLRB 893, 896-897; Town & Country Dairy, 136 NLRB
517, 520-523; Neville Foundry Company, 122 NLRB 1187, 1188,
American Publishing Corporation, 121 NLRB 115, 118-122;
Johnson Optical Company, 85 NLRB 895, 897. In contending
against the existence of a multiemployer unit, the Respondent
points to the lack of proof that Employing Printers, or Mr. Elwell
as its representative , had been given express authority by the
individual firms to bind them in contract negotiations , but the
157
"Employing Printers" that each was to be bound by the
results of group negotiations. The facts thus establish the
existence and appropriateness of a multiemployer
bargaining unit for a lengthy period, and one extending for
many months following the initiation of negotiations for the
1966 contract. 11
Assuming the existence of a valid multiemployer unit
embracing Respondent during the progress of the
negotiations for the 1966 contract, Respondent contends n
its brief against findings of violation on certain further
principal grounds, namely:
1. Respondent was free to withdraw from the employer
unit at the time it sought to do so by its letter;
2. The Union consented to the attempted withdrawal;
and
3. The violation specifically alleged in the complaint,
namely, Respondent's refusal on or about April 12, 1966,
to "sign the collective bargaining agreement negotiated"
by the employer group, was not established by the General
Counsel's proof.
In relation to the first of these contentions, Respondent
contends in its brief that its attempted withdrawal midway
in the negotiations was timely and proper (1) because no
agreement had yet been reached, and (2) on the further
theory that at this point in time the negotiations were at an
impasse. But, in the first place, Respondent would appear
to lack standing to advance either contention because it
did not, in fact, rely on either ground as a basis for its
attempted withdrawal. N.L.R.B. v. Tulsa Sheet Metal
Works, Inc., 367 F.2d 55 (C.A. 10). Moreover, if these
arguments are available to Respondent they are lacking in
merit in the light of abundant and uniform decisions of the
Board and the courts declaring and applying the rule that
once contract negotiations have commenced on a
multiemployer unit basis a member employer may not
ordinarily withdraw from the unit save with the consent of
the other party-the labor organization involved.12 Of
course, any such general rule against unilateral
withdrawal must allow for appropriate exceptions based
on "unusual circumstances" (the Retail Associates case,
supra, 395) but the justifications for withdrawal now
advanced by Respondent are unworthy of inclusion in any
such excepted category. Obviously, the fact that no
agreement had yet been reached when Respondent sought
to withdraw is immaterial, since the rule against
withdrawal has in view the preservation of the employer
unit throughout the negotiations. And no claim of impasse
was put in issue or litigated, but if the contrary could be
said to have been the case, the evidence clearly shows that
absence of such express grant of authority is not an obstacle to the
existence of a multiemployer unit See the Kroger decision and
cases there cited at p. 573 Nor is any such obstacle presented
because Employing Punters is not a formally organized
association , a matter adverted to by Respondent at the hearing
See the Wards Cove Packing, Shamrock Systems, American
Publishing Corporation, and Johnson Optical Co. decisions,
supra . Respondent 's reference in its brief to certain language in
the opinion of the court of appeals in the Retail Clerks case, cited
above, does not aid its position since in that case the court
approved the Board's conclusion that a multiemployer unit
existed even though one employer lawfully insisted on individual
bargaining concerning one particular matter-a pension plan.
11 See, e. g., N.L.R.B. v. Tulsa Sheet Metal Works, supra,
Sheridan Creations, supra, Shamrock Systems, supra, The Kroger
Co , supra, Spun-Jee Corp. & The James Textile Corp., 152 NLRB
943, 945. And see, generally, Retail Associates, Inc., 120 NLRB
388,393-395
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no true impasse ever developed, over the Union's pension
proposal or otherwise. 13
With respect to the claim of union consent to its
withdrawal, Respondent points to the lack of evidence that
the Union, following its receipt of a copy of Respondent's
withdrawal letter, lodged with Respondent or the
Employing Printers any express protest, and to the fact
that the Union carried on the group negotiations to
completion without insisting on Respondent's continued
participation in or representation by the group.
Respondent likewise points to the fact that, at Mr. Elwell's
direction, the Union omitted Respondent's name from the
signature spaces on the "binder" agreement, while
acknowledging that the final booklet agreement does bear
Respondent's name.
But Respondent points to only some of the pertinent
facts. Other relevant circumstances are that, after the
withdrawal letter and while the negotiations were still in
progress, the Union sought to ascertain what was
Respondent's disposition relative to signing the expected
contract, and did so again promptly after the contract
terms had been agreed upon and the binder agreement
executed, and it was a group contract the Union was
referring to on both occasions. Hence, by these
approaches, the Union plainly manifested the desire that
Respondent resume its place in the group despite its
withdrawal letter. It should be borne in mind also that in
response to the first union inquiry, Respondent demurred
at the time but agreed to inform the Union later as to its
position. In the circumstances, it was not incumbent upon
the Union to keep renewing its inquiries during the
remainder of the negotiations, and it could properly refrain
from approaching Respondent again until after the
negotiations were completed. This it did, and being
informed, and for the first time, of Respondent's refusal to
sign , it promptly filed its charge asserting Respondent's
unlawful withdrawal from the unit and unlawful refusal to
sign the unit contract.
Nothing even remotely indicative of union "consent" to
Respondent's withdrawal, or consent to its refusal to sign
the group contract, can be spelled out on these facts.
"Consent," in legal contemplation, arises only from
express statement or as an implication from conduct.
17 As to the pension plan, in effect what happened was that
after the employers' proposal of an agreement lacking this plan
was rejected by the union membership, the parties continued
their negotiations and rather promptly achieved a complete and
final agreement. Thus, no impasse ever existed
19 Mere passivity in the face of a violation of one's rights cannot
ordinarily be construed, in law, as "consent" to or (its nearest
equivalent) as a "waiver" of the unlawful invasion. For this
reason, the Union's mere failure to lodge an affirmative protest
with Respondent or the Employing Printers concerning the
withdrawal, stressed by Respondent, would be insufficient to
manifest its "consent," even if that were all that had happened. (It
can, therefore, be misleading to use the term "acquiescence" in
this context as the equivalent of "consent," as Respondent does
in its brief, since in ordinary usage "acquiescence" means to rest
without opposition, to remain silent without protest, passively to
submit) But this was not the sum total of the Union's conduct and
since the entirety of that conduct manifested the Union's desire, if
not insistence, that Respondent be held bound despite its
attempted withdrawal and refusal to sign, it is equally of no
material significance that the Union earned on the negotiations to
completion without expressly insisting that Respondent return to
the multiemployer fold. Indeed, so long as the Union did not, by
word or clearly indicative affirmative conduct, otherwise manifest
its consent to Respondent's withdrawal, it was entitled to regard
Respondent as obligated in law by any agreement reached and
Where implied from conduct, that conduct must normally
involve a course of positive action clearly antithetical to a
claimed position.14 Typical of such antithetical conduct is
union resort to individual bargaining with an employer
following his asserted withdrawal from multiemployer-unit
bargaining , and this is the, or a, key fact indicative of
consent to withdrawal which the Board emphasized in the
cases cited by Respondent. C & M Construction Company,
147 NLRB 843; Rose Printing Company, Inc., 146 NLRB
638, 648; Atlas Sheet Metal Works, Inc., 148 NLRB 27,
27-29. This case, however, is devoid of any union attempts
at individual bargaining, and of other affirmative conduct
clearly indicative of its consent to Respondent's
withdrawal. 15
Turning to Respondent's next contention, the violation
charged in the complaint (paragraph 13) consists of
Respondent's alleged refusal on or about April 12 "to sign
the ... agreement negotiated ... on its behalf" by the
Employing Printers.16 Respondent contends that the
General Counsel failed to prove this charge because (1) on
Respondent's version of the evidence concerning the
April 12 conversation between Ford, for the Union, and
Robert Frankes, for Respondent, Frankes did not express
any refusal in response to Ford's inquiry as to whether
Respondent would sign the agreement "the Union had
voted on"; (2) Ford did not at that time produce the binder
agreement or specifically request that Respondent sign
that document; and (3) there was not then in existence any
"contract" since, in Respondent's view, the contract
consists of the final booklet agreement as signed by the
Union and the employer group and as approved, as
required, by the International Union, all much later.
These various contentions wholly ignore Respondent's
withdrawal letter, which counsel for the General Counsel
put in evidence as part of his proof and which he later
denominated as one basis of the violation claimed by the
General Counsel even though not so specifically alleged in
the complaint. Counsel for Respondent entered no
objection to this statement. That he had attached similar
significance to the letter is evident from one of his own
statements made earlier in the hearing and from his cross-
examination of Ford on the question whether the Union
had made any protest against Respondent's withdrawal
hence could safely continue the negotiations without fear that it
would thereby be deemed to have consented to Respondent's
withdrawal
11 It is true that Respondent 's name was omitted from the
"binder" agreement, which the Union took responsibility, as
between the parties , for having printed . But this omission was not
the result of the Union's unilateral and spontaneous
determination but was made at the direction of Mr. Elwell, and,
moreover , was further influenced by the purpose to have some
signed agreement in effect immediately , in advance of printing
the final contract , in order to set the pension plan promptly into
effect as to all employers then prepared to make the
corresponding payments . Even so, this omission could, if
standing alone and not otherwise explained , be considered
affirmative conduct pointing toward consent But this
circumstance is outweighed by the Union's subsequent approach
to Respondent regarding signature of the binder (itself a group
contract) on April 12, by its immediate filing of the charge
following Respondent 's refusal to sign , and by its inclusion of
Respondent's name in the signature clauses of the final contract.
And, as seen , the omission had at least one special reason wholly
compatible with the Union's purpose, otherwise manifested, not
to release Respondent from its bond.
IB The complaint uses the term "Association" to refer to the
Employing Punters.
THE JOHN J. CORBETT PRESS, INC. 159
after receiving the letter . In the circumstances,
Respondent 's attempted withdrawal was litigated as an
issue in the case . Quite obviously , the letter, in
announcing Respondent 's withdrawal from Employing
Printers and in revoking that group 's authority further to
negotiate on Respondent 's behalf , represented an
anticipatory and continuing refusal on Respondent's part
to accept or to sign any agreement arrived at in the further
group negotiations . 17 In this light , Respondent 's refusal on
April 12 to sign the agreement the Union had voted on (as,
contrary to Respondent 's contention , I have found took
place ) was of the same broad and all-inclusive character,
and it would have been an exercise in futility for Ford to
produce the signed binder agreement and specifically
request or demand that Respondent sign it on that
occasion. 111
Moreover , because of the necessary effect of
Respondent 's withdrawal, as above-described , there was
no obligation upon the Union (or Employing Printers, for
that matter) affirmatively to seek Respondent 's signature
to either of the eventual agreements . Rather, it was
incumbent on Respondent , since its withdrawal was
unjustified and ineffective , to take steps to sign any
agreement reached . Cf. Fairbanks Dairy, Division of
Cooperdale Dairy, supra at 896, 898.
Nor is there any merit in Respondent ' s contention
relative to the nonexistence of any "contract " on April 12,
for the reasons stated in the following note. 19
Finally, Respondent contends that it should not be
required to execute the contract on the ground that it
contains an illegal clause. The clause in question
(paragraph 1, section XVIII of G. C. Exh. 5) provides:
It is agreed that all foremen of Composing Rooms
shall be members of the Union in good standing.
Respondent contends that this provision amounts to an
illegal "closed shop" contract . This obviously is not so
since the clause is limited to foremen and foremen, as
supervisors , are not "employees " within the meaning of
Section 8 (a)(3) of the Act. But with the validity of this
clause drawn into question in relation to whether
Respondent may be required to sign the contract, I will
deal with its legality under other provisions of the Act in
the light of other related provisions of the contract and
pertinent decisions.
In addition to the above clause , the contract provides in
paragraph 2, section XVIII , that composing room
employees "shall be employed , receive orders from, laid
off and discharged" exclusively by the foreman, and in
paragraph 4, section 1, as follows:
The operation, authority, and control of each
composing room shall be vested exclusively in the
office through its representative, the foreman, who
shall be a member of the Union.20
In the light of the decisions in N.L.R.B. v. News
Syndicate Company, Inc., 365 U.S. 695, and Portland
Stereotypers' and Electrotypers' Union No. 48 (Journal
Publishing Co.), 137 NLRB 782, it appears, as the General
Counsel contends, that the foremen's clause is valid under
the Act and thus no obstacle to an order requiring
Respondent to sign the final contract.21
On the basis of the foregoing, I find that a
multiemployer unit consisting of the nonsupervisory
composing room employees of the companies, including
Respondent, which engaged in the negotiations leading to
the 1966 contract with the Union was and is appropriate
for collective-bargaining purposes. I further find that the
Union, whose majority status in such a unit is conceded,
was at all material times and still is the exclusive statutory
bargaining representative of the unit employees.
Accordingly, I find and conclude that Respondent, by its
withdrawal letter of December 8 and by its failure or
refusal thereafter to sign the binder agreement or any
agreement negotiated between the Union and Employing
Printers, has refused to bargain collectively in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act; the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
2. The aforesaid unit of employees is a unit appropriate
for collective-bargaining purposes within the meaning of
Section 9 of the Act.
3. At all material times the Union has been and is the
exclusive bargaining representative of the employees,
including those of Respondent, in the said appropriate
unit.
4. By its withdrawal letter of December 8 and by its
failure or refusal thereafter to sign the binder agreement
or any agreement negotiated between the Union and
Employing Printers, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, and the said unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
11 Cf Sheridan Creations, and Shamrock Systems, supra
18 The evidence does not specifically establish Respondent's
knowledge on April 12 that an agreement had been reached and
been embodied in an agreement , but I infer such knowledge from
the fact that Frankes , in refusing to sign the agreement "the
Union had voted on," did so without any inquiry or expression of
doubt relative to the then existence of an agreement available for
signature.
is This defensive contention is wholly unpersuasive for a
number of reasons . To begin with, the argument is immaterial
since as previously described, the effect of Respondent's
withdrawal was put in issue and litigated as a form of violation
even though not specifically alleged in the complaint Moreover,
even if the issues were confined to those alleged in the complaint,
Respondent' s contention assumes that no action on its part, other
than a refusal to sign the final booklet form of agreement ( after all
other parties, including the International Union, had signed it),
could sustain the complaint 's allegations But the complaint does
not refer to any specific contract document but rather to "the
collective-bargaining agreement negotiated and agreed to" by
Employing Printers on Respondent 's behalf, and these allegations
are entitled to be fairly interpreted So interpreted , they are
sufficient to comprehend the binder agreement , then in existence
to Respondent 's knowledge , and, regardless of their use of the
word "sign," should be deemed sufficient to comprehend any
refusal of Respondent to accept or agree to the terms arrived at in
the collective -bargaining negotiations . Otherwise , form would be
elevated over substance in the extreme , contrary to the command
that "pleadings shall be so construed as to do substantial justice."
Rule 8(f), Federal Rules of Civil Procedure.
10 1 infer that the term "office" in this provision refers to the
employer
2i As indicated in the foregoing text, the question of the validity
of the foremen 's clause does not relate to the issue of violation
since Respondent did not rest its withdrawal or its refusal to sign
on any such ground The matter thus pertains only to the
appropriate scope of an order See N.L.R.B. v. Tulsa Sheet Metal
Works, supra.
160. DECISIONS OF NATIONAL
THE REMEDY
The order I recommend the Board issue, as set forth
below, requires Respondent to cease and desist from
further such violations. However, I do not consider that
those engaged in are of such a character as to warrant a
broad injunctive provision under Section 8(a)(1) of the Act.
As affirmative action to remedy Respondent's unfair
labor practices on lines necessary to effectuate the Act's
policies, the order I recommend requires Respondent
forthwith to sign the agreement entered into between the
Union and Employing Printers, dated June 16, 1966, to
give retroactive effect to the terms and conditions of that
agreement, and to make whole its employees for any loss
of wages or other employment benefits they may have
suffered as a result of Respondent's failure or refusal to
sign that agreement. See Shamrock Systems, supra.
Backpay, if any, shall be computed, and shall bear
interest, in accordance with the formulas set forth,
respectively, in F.W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings and conclusions and upon
the entire record in the case, I recommend that the Board
issue, pursuant to Section 10(c) of the Act, the following:
LABOR RELATIONS BOARD
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in
conspicuous places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of the receipt of this Decision,
what steps have been taken to comply therewith.23
zz In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order " shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice . In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
23 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
ORDER
Respondent, The John J. Corbett Press, Inc., New
Haven, Connecticut, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Failing or refusing to sign the contract dated
June 16, 1966, between New Haven Employing Printers
and the New Haven Typographical Union, No. 47.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
right to self-organization, to join or assist the said Union or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization, as
authorized in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Forthwith sign the said contract described in
paragraph 1(a) of this Order.
(b) Upon execution of the foregoing contract, give
retroactive effect to the terms and conditions thereof,
including but not limited to the provisions relating to
wages and other employment benefits, and, in the manner
set forth in the section of this Decision entitled "The
Remedy," make whole its employees for any losses they
may have suffered by reason of Respondent's failure or
refusal to sign the said contract.
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to determine the amount due as
backpay and other benefits for employees.
(d) Post at its place of business in New Haven,
Connecticut, copies of the attached notice marked
"Appendix A."22 Copies of said notice to be furnished by
the Regional Director for Region 1, after being signed by
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL forthwith sign the contract, dated
June 16, 1966, between New Haven Employing
Printers and The New Haven Typographical Union,
No. 47.
WE WILL give retroactive effect to the terms and
conditions of said contract, including but not limited
to the provisions relating to wages and other
employment benefits, and WE WILL make whole our
employees for any losses they may have suffered by
reason of our refusal to sign the said contract.
WE WILL NOT continue to refuse to sign the said
contract or in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the right to self-organization, to form labor
organizations, to join or assist the above-named or any
other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
THE JOHN J. CORBETT
PRESS
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Twentieth
Floor, John F. Kennedy Federal Building, Cambridge and
New Sudbury Streets, Boston, Massachusetts 02203,
Telephone 223-3353.