The Post Publishing Co.

National Labor Relations Board - Board Decisions

Mar 15, 1962

136 N.L.R.B. 272 (N.L.R.B. 1962)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative action
of the type conventionally ordered in such cases , as provided in the Recommended
Order below, which I find necessary to remedy and to remove the effects of the unfair
labor practices and to effectuate the policies of the Act . Because of the broad scope
of Respondent's threats of reprisal and its demonstrated disposition to carry out its
threats, and for reasons which are stated in Consolidated Industries, Inc., 108 NLRB
60, 61, and cases there cited , I shall recommend a broad cease-and-desist order.
Gerald Gooding is being omitted from the usual backpay recommendation, the
General Counsel having disclaimed as to him.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. By interfering with , restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices proscribed by Section 8(a)(1).
2. By laying off Terry Fenton , Gerald Gooding, Jarvis Narron , Hontas Morris,
and David Glaze on May 16, Howard Casto and James Sadler on May 17, and
Richard Vetter and Larry Slack on May 18, Respondent engaged in discrimination to
discourage membership in the Union, and thereby engaged in unfair labor prac-
tices proscribed by Section &( a) (3) and ( 1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
The Post Publishing Company and Appleton , Neenah & Menasha
Typographical Union No. 612, International Typographical
Union, AFL-CIO and Appleton Post-Crescent Craftsman's
Union , Party to the Contract. Case No. 13-CA-4242. March 15,
1962
DECISION AND ORDER
On November 20, 1961, Trial Examiner Eugene F. Frey issued his
Intermediate Report 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 Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in other unfair labor practices and recommended dismissal of the com-
plaint as to them. Thereafter, the Respondent filed exceptions to
the Intermediate Report together with a supporting brief.'
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 [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions and
1 The Respondent's request for oral argument is hereby denied, as the record , including
the exceptions and brief , adequately presents the issues and the positions of the parties.
136 NLRB No. 23.
THE POST PUBLISHING COMPANY 273
brief, and the entire record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.
The Remedy
We agree with the Trial Examiner that an order requiring Respond-
ent to withdraw and withhold recognition from the PCCU until and
unless it is certified as the exclusive representative of the employees in
the Respondent's mechanical departments is necessary to remedy the
unfair labor practices found herein. The facts of the case demonstrate
that, for almost the entire period of the PCCU's existence, the Re-
spondent has been furnishing virtually all of the financial support
necessary to carry out its functions. The record further demonstrates
that at a meeting called by the Employer to discuss employee griev-
ances which the Respondent viewed as the reason behind the organi-
zational drive being made by the ITU, the Respondent unlawfully
offered to pay the expenses of an attorney to represent the employees
in bargaining negotiations. That offer was made in response to em-
ployee expressions of doubt as to the benefits of negotiating with the
Respondent under the old system. At the same meeting the Respond-
ent expressed its opposition to the ITU and its preference for dealing
with PCCU. Some time after this meeting, employees, who had signed
authorization cards on behalf of the ITU, submitted a formal petition
of withdrawal to the ITU.
In our opinion, the above-circumstances warrant a conclusion that
PCCU cannot maintain its exclusive representative status without the
Respondent's unlawful support and assistance. While it is true, as
Member Rodgers points out, that there has been no criticism or sus-
picion cast upon Respondent's relations to the PCCU until the issu-
ance of the instant complaint, this is not 'a ground for ignoring the
evidence adduced now before us. Accordingly, we shall provide a
remedy which will enable the employees freely to select or reject, as the
case may be, the PCCU as their exclusive representative.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c) of
National Labor Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, The Post Publish-
ing Company, of Appleton, Wisconsin, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Offering or contributing financial or material assistance and
support to the Appleton Post-Crescent Craftsman's Union, or any
other labor organization of its employees, or otherwise interfering
with the representation of its employees through a labor organization
of their own choice.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Recognizing said labor organization, or any successor thereto,
as the exclusive representative of its employees for purposes of collec-
tive bargaining, unless and until said organization has been certified
by the National Labor Relations Board as the exclusive bargaining
representative of such employees in an appropriate unit.
(c) Performing, enforcing, or giving any effect to any current con-
tract with said labor organization, or to any extension, renewal, modi-
fication, or supplement thereof, unless and until said labor organiza-
tion has been certified by the National Labor Relations Board as the
exclusive bargaining representative of its employees in an appropri-
ate unit : Provided, however, That nothing herein shall be construed
to require Respondent to vary any of the substantive terms of such
contract, or to prejudice the assertion by the employees of any rights
they may have thereunder.
(d) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, 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 the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Appleton Post-
Crescent Craftsman's Union, or any successor labor organization, as
the exclusive representative of its employees for purposes of collective
bargaining, unless and until said labor organization has been duly
certified by the National Labor Relations Board as such exclusive
representative in an appropriate unit.
(b) Post in its plant and place of business in Appleton, Wisconsin,
copies of the notice attached hereto marked "Appendix." 2 Copies of
said notice, to be furnished by the Regional Director for the Thir-
teenth Region, shall, after being duly signed by Respondent's repre-
sentative, be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
THE POST PUBLISHING COMPANY 275
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent has violated the Act by conduct other than that found
to be violative herein, be, and it hereby is, dismissed.
MEMBER RODGERS, dissenting in part :
I agree with my colleagues' finding that the Respondent violated
Section 8(a) (2) and (1) as fully described and found by the Trial
Examiner in the Intermediate Report. I also agree with their dis-
missal of the 8(a) (3) allegations in the complaint. However, I do
not agree with my colleagues' conclusion that the Respondent's unlaw-
ful conduct warrants the drastic remedy ordered herein, namely, the
suspension of its bargaining and contract relationship with the Union.
The adoption of an order requiring the withholding of recognition
and suspending a contract relationship until the union is certified by
the Board is discretionary with the Board, and such remedy need not
be applied where it would not effectuate the policies of the Act. Con-
struction Specialties Company, 102 NLRB 1542, enfd. 208 F. 2d 170
(C.A. 10). Moreover, where the evidence shows that an employer's
unlawful assistance does not warrant an inference that the union's
ability to represent the employees is adversely affected, the Board
does not order the suspension of the bargaining or contract relation-
ship pending certification. Lykes Bros. Inc. of Georgia, 128 NLRB
606, 609-611; Geilich Tanning Company, 128 NLRB 501, 502; Kaiser
Steel Corporation, 125 NLRB 1039, 1042; Alaska Salmon Industry,
Inc., and its Member Employers, 122 NLRB 1552; Gibbs Corporation,
120 NLRB 1079, 1085; Construction Specialties Company, supra.
Indeed, recently, in M. Eskin cQ Son, 135 NLRB 666, the Board did
not order the drastic remedy where it found that the employer had
violated Section 8(2) and (1) by requiring clearance by an assisted
union as a condition of employment or reinstatement; and by requir-
ing, as a condition of reinstatement, that certain employees : (1) re-
voke all designations of any labor organization except those in favor
of the assisted union; (2) revoke withdrawals of checkoff authoriza-
tions, and reinstitute such authorizations in favor of the assisted union;
(3) request withdrawal of representation petitions filed by another
labor organization; (4) request withdrawal of unfair labor practice
charges filed against the assisted union; and (5) hold the assisted
union harmless and release it from any claims whatsoever.
In my view, as in the above-cited cases, the record evidence herein
does not warrant an inference that the Respondent's unlawful assist-
ance affected or otherwise limited the Union's ability to represent the
Respondent's employees. Thus, the record shows that the Union has
been representing Respondent's production employees continuously
641795-63-vol. 136----19
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for 38 years without, according to the Board's finding herein, "criti-
cism or even suspicion . . . cast upon its legitimacy or independent
character, or Respondent's relation to it, so far as this record discloses,
until the filing of the charge herein." In addition, all allegations that
members of the Union were given preferential treatment under the
terms of the collective-bargaining agreement have been found to be
without merit. Accordingly, in view of the foregoing, and on the
basis of the entire record, I find that the issuance of the Board's
customary cease and desist order would be sufficient to remedy the
unfair labor practices found herein, and that it is unnecessary to
resort to the more drastic remedy ordered by my colleagues.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 NOT offer or contribute financial or material assistance
and support to Appleton Post-Crescent Craftsman's Union, or
any other labor organization of our employees, or otherwise
interfere with the representation of our employees through a
labor organization of their own choice.
WE WILL withdraw and withhold all recognition from the
above-named organization, or any successor labor organization,
as the exclusive representative of our employees for purposes of
collective bargaining, unless and until said labor organization has
been duly certified by the National Labor Relations Board as
such exclusive representative in an appropriate unit.
WE WILL NOT perform, enforce, or give any effect to any cur-
rent contract with the above labor organization, or to any ex-
tension, renewal, modification, or supplement thereof, unless and
until said labor organization has been certified by the National
Labor Relations Board as the exclusive bargaining representative
of our employees in an appropriate unit. However, in our rela-
tions with our employees, we will not vary the wages, hours of
employment, rates of pay, seniority, or other substantive provi-
sions which have been established pursuant to said contract.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights
guaranteed by Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
THE POST PUBLISHING COMPANY 277
in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
THE POST PUBLISHING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (176 West Adams Street, Chicago 3, Illinois ; Telephone Num-
ber, Central 6-9660) if they have any questions concerning this notice
or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The issues on this case are whether Respondent , The Post Publishing Company,'
has since November 17, 1960 ( 1) given unlawful aid, assistance , and support of
various types to Appleton Post -Crescent Craftsman 's Union (herein called PCCU),
in violation of Section 8(a)(1) and ( 2) of the National Labor Relations Act, as
amended , 29 U.S .C. Sec . 151, et seq. (herein called the Act ), and (2 ) by enforce-
ment of a collective -bargaining agreement with the PCCU, has given preferential
treatment and benefits to members of that organization thereby further assisting it
and discriminating in favor of its members , in violation of Section 8(a) (2) and (3)
of the Act. The issues arise on a complaint issued July 14, 1961 , by the General
Counsel of the National Labor Relations Board , and an answer of Respondent which
denied the commission of any unfair labor practices.
A hearing on the issues was held before Eugene F. Frey, the duly designated Trial
Examiner, on August 28 and 29, 1961 , in Appleton , Wisconsin , in which all parties
were represented and participated by counsel or other representatives , and were
afforded full opportunity to be heard , to examine and cross-examine witnesses, present
pertinent evidence , argue orally, and file briefs . At the close of General Counsel's
case-in-chief, I denied Respondent 's motion to dismiss the complaint on the merits;
similar motions at the close of the whole case were taken under consideration and
are now disposed of by the findings and conclusions in this report . The parties
waived oral argument , but filed written briefs which have been carefully considered
by me.
Upon the entire record in the case, and from my observation of the witnesses on
the stand , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Wisconsin corporation , with its principal office and place of
business at Appleton , Wisconsin , where it is engaged in the business of newspaper
publication and printing . In the course of its business during the calendar year
1960, Respondent had gross receipts in excess of $2,000 ,000, part of which was re-
ceived for advertising of nationally sold products. In the same period , it purchased
goods and materials valued in excess of $100 ,000, which were shipped to its Apple-
ton, Wisconsin , plant directly from points outside Wisconsin. Respondent admits,
and I find on the above facts , that it is engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Appleton, Neenah & Menasha Typographical Union No . 612, International Typo-
graphical Union, AFL-CIO (herein called the Union or ITU ), and the PCCU afore-
said are labor organizations within the meaning of Section 2 (5) of the Act.
1 The name of Respondent appears as corrected at the hearing.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The 1959 contract with PCCU
Prior to 1921, mechanical employees in the composing room of Respondent's
plant in Appleton were represented by the Union, which had a closed-shop contract
with Respondent. In that year, these employees apparently left the ITU and formed
the PCCU as an independent labor organization. From 1921 to the present time
PCCU has been their bargaining agent and has negotiated and executed successive
collective-bargaining contracts with Respondent. The most recent contract was
executed October 1, 1959, and was operative as modified by addendum effective
January 1, 1961, until September 30, 1961.
Paragraph numbered 3, entitled "Schedule of Working Hours," of the 1959 agree-
ment states, in part, "The maximum work-week for members of the Union covered
by this Agreement shall be forty (40) hours during six (6) weekdays. Hours for
employees under this agreement shall be limited to eight (8) hours daily and shall be
divided into two (2) shifts." Paragraph numbered 10(a) (1) of the contract provides:
10. ADDITIONAL COMPENSATION-
(a) In addition to the usual wages above enumerated for services rendered
by the members of the Party of the Second Part:
1. The Party of the First Part agrees to provide insurance on the life of each
member of this Union, payable to such beneficiary as therein named and further
agrees that it will upon employment of any new employees after employment
for a period of three (3) months provide a Policy of Insurance on the life of
the employe, payable to such beneficiary as such employe shall choose in the
sum of Five Hundred and no/100 Dollars ($500.00) and in addition, the addi-
tional sum of One Hundred and no/100 Dollars ($100.00) each year such
employe continues in the employment of the Party of the First Part, but not
exceeding the maximum amount of Fifteen Hundred and no/100 Dollars
($1500.00). [Emphasis supplied.]
General Counsel contends that Respondent violated Section 8(a)(1), (2), and (3)
of the Act by the execution and enforcement of these clauses, because they gave
preferential treatment to PCCU members as regards employment security and life
insurance benefits. It is well settled that execution of contracts containing clauses
which clearly provide preferences for employees on the basis of their membership
or nonmembership in a union is a violation of Section 8 (a) (1) and (3) of the Act -2
However, Respondent maintains that the quoted clauses do not violate the Act,
when they are considered in the context of other clauses, in the light of past PCCU
and ITU contracts, and the actual administration of these clauses in the 1959 and
earlier PCCU contracts. I think there is merit in Respondent's contention.
While the first quoted sentence of paragraph numbered 3 in terms fixes the maxi-
mum workweek of "members of the Union," the next sentence and its subparagraphs
fix daily hours and shifts for "employees under this agreement." Since both
sentences as well as the subparagraphs fixing length of shifts (which do not dis-
tinguish between "union members" and "employees") appear in one provision deal-
ing with schedules of work hours, it would be a strained construction that the parties
meant to fix overall 40-hour weeks for union members, but not for "other employees
under this agreement," and at the same time fix daily hour limits for the latter,
but not for the former. Considering only the first sentence, as General Counsel
does, it is at best unclear whether the parties meant to fix work hours and maxi-
mum workweeks of union members and other "employees under this agreement"
in separate ways. The same ambiguity is apparent in paragraph numbered 10(a) (1),
for while it at first requires Respondent to provide life insurance for "each mem-
ber of this Union," it then requires provision of similar insurance upon the life of
"any new employee," and uses only the general term "employee" three times there-
after in provisions for payment to beneficiaries and additional insurance coverage.
Likewise, the 1961 addendum to the contract uses first "members of the above
Union" and then "an employee," in providing for a pay raise and an attendant
limitation on payment for illness. The use of both descriptive phrases in provisions
dealing with the same subject-matter warrants the inference that they were used
interchangeably and considered synonymous. The inference is strengthened by the
fact that (1) both were used in section 2, "Mediation," where the purpose of
mediation was stated to "facilitate any dispute that may arise between the em-
2 Jim, O'Donnell, Inc., 123 NLRB 1639, 1643: Seaboard Terminal and Refrigeration
Company, 114 NLRB 1391.
THE POST PUBLISHING COMPANY 279
ployer and the employees ," and the parties agreed that any "member of this
Union" with a grievance could submit it to a grievance committee which would
settle all matters "arising between the employer and the employees"; (2) other
clauses fixing basic and overtime rates made no mention of either "members of the
Union" or other "employees under this agreement," as separate groups, although it
classified employees according to occupation for rate purposes; (3) provisions deal-
ing with the vital matters of seniority, vacations with pay, and sick leave men-
tioned "employees" and "any employee" generally. The same interchangeability
of terms appears in earlier PCCU contracts going back as far as 1940 The reason
for the failure to distinguish between "members of the Union" and "employees"
becomes clear from the facts that (1) the last ITU contract was a closed-shop con-
tract, under which all mechanical employees were required to be members of that
Union, and (2) the early succeeding PCCU contracts had union-security clauses
which recognized that all mechanical employees in the old bargaining unit would
become members of the PCCU, hence their life insurance and pension benefit pro-
visions continued the old discriminatory "closed-shop" policy by providing that
such benefits would continue for each "member during his membership in said
Union," and otherwise used the phrase "member of the Union" almost entirely
throughout the contracts; but (3) the specific prerequisite of membership in the
Union as a condition of receipt of insurance benefits and pensions was dropped in
contracts from 1940 onward, and the interchangeability of the terms "member of the
Union," "employee," and "any employee" became a recurrent feature after that date.
While these facts indicate that the parties, in writing the contracts, accorded no
special significance to the phrase "members of the union," as contrasted with the
term "employees," the ambiguity of the 1959 contract in this respect entitles the trier
of the issue to ascertain the intent of the parties from their practical construction of
the contract as shown by their operations under it and prior contracts.3 The record
shows that in their operations under the PCCU contracts through 1959, the parties
have treated and considered "members of the union" and "employees" as synonymous.
When the PCCU was first formed, all mechanical employees in the unit then covered
by the ITU contract joined the PCCU and were accorded all benefits provided by the
PCCU contracts, and through the years all employees in said unit have received the
same benefits under the PCCU contracts, whether or not they have joined the
PCCU. At the time of the hearing, the bargaining unit contained between 60 and 70
employees, all of whom were members of the PCCU except one William Erickson,
but he nevertheless has received the same benefits as PCCU members under the 1959
contract. In March 1961, Respondent hired six or seven workers for a night shift,
who are receiving the same contract benefits as all other employees in the unit,
although it is not clear from the record whether they have joined the PCCU 4
I find on the above facts that in their practical interpretation and administration of
the 1959 contract, the parties have treated PCCU members and nonunion employees
in the production department alike as regards all benefits payable thereunder, including
insurance and other benefits. I conclude that General Counsel has failed to prove
by the requisite preponderance of substantial evidence that the 1959 contract in terms
gave any unlawful preferential treatment to union members, or that Respondent in
its administration of the contract accorded them such preference, in violation of the
Act. I grant Respondent's motion to dismiss paragraphs numbered VI(a) and (b) of
the complaint .5
B. Other alleged unlawful assistance to the PCCU
General Counsel claims Respondent has given unlawful assistance and support to
the PCCU by (1) allowing it to hold meetings on company property, and to print
meeting notices on company time and with use of company machinery; (2) permitting
the PCCU to engage in union activities on company time and property; (3) donating
the proceeds of coffee vending machines to the PCCU, and (4) allowing it to use the
profits from the company cafeteria for the benefit of its members.
Since its inception, the PCCU has held both regular and special meetings, averag-
ing about eight a year, after working hours on company property. Prior to 1952, its
meetings were held in a library or conference room, also known as the "civic" room,
s Krambo Food Stores, Incorporated, 106 NLRB 870, 871
'These facts are based on uncontradicted testimony of Maurice E. Cartier and Sylvester
Kneepkens
5 Other cases cited by General Counsel on this issue are not applicable on the facts, be-
cause they involved contracts with clear discriminatory terms, where the Board held that
lack of enforcement of such contracts was no defense
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the second floor of Respondent 's plant. A new cafeteria was built in the plant in
1952, since which time the PCCU has used that area for all meetings, except annual
Christmas parties which are held outside the plant. Within the past year at least,
notices of PCCU meetings have been printed by PCCU officials during working hours
with the use of plant printing facilities, and posted on the employees' timeclock 6
As to the printing of notices , Respondent argues it had no knowledge of the use
of its facilities for this purpose. I consider this arguement without merit. While
there is no direct proof that company officials actually saw PCCU notices printed on
worktime , the record shows that this work was done openly during working hours
in a composing room about 30 by 50 feet in dimensions , in which two supervisors
had their desks within a few feet of the printing equipment where the notices were
set in type , and constantly circulated in the room daily to check the work and its
progress . These supervisors 7 were not called to deny knowledge of the printing of
the notices . Under the circumstances it is a reasonable inference , and I find, that
Respondents knowingly permitted the use of company time and equipment for print-
ing of the union notices . For the same reason, I also find that Respondent knew of
and permitted a PCCU official shortly before May 4, 1961, to use company time
and equipment to print a petition requesting the ITU to withdraw the names of those
who signed it as applicants for membership in that organization , and allowed PCCU
members to circulate copies and procure signatures of composing room employees
on them during working hours in that room.8
When the cafeteria was installed in 1952 , the mechanical employees asked Re-
spondent to let them run it . Respondent consented , and appointed a PCCU mem-
ber, Amil Hofmann , as cafeteria director.9 Hofmann operated it until March 1961,
when he retired as an employee . In this period , he bought the food, fixed and
changed food prices, handled its accounts , and kept the profits in a separate bank
account . Respondent exercised no control or supervision over his operation of the
cafeteria , and paid him nothing for it; his sole compensation for that work was
10 percent of the profits, which he received by arrangement with the PCCU. Shortly
after he became manager , Respondent told Hofmann the PCCU could take the cafe-
teria profits and since that time those profits, amounting to about $600 per year,
have been used by him mainly to defray the costs of refreshments served at PCCU
meetings and at its annual Christmas parties. In addition , cafeteria personnel have
used its food stocks to serve refreshments at some PCCU meetings . The PCCU
never charged its members or used its own funds for these items, or reimbursed the
cafeteria fund therefor . Since Hofmann 's retirement another employee has in like
manner continued to manage the cafeteria and disburse its funds for the benefit of
the PCCU.io
For many years past, Respondent has provided food vending machines on its
premises for the benefit of employees . For some years before 1959, Respondent
tried out several types of coffee vending machines which proved unsatisfactory.
During 1959, when the employees spoke about it , General Manager Cartier told
the mechanical employees to procure the type they wanted , so they negotiated a
concession with another distributor , Zaug's, Inc. Respondent approved and per-
mitted the installation of the coffee machine, and has since turned over all checks
representing its share of the profits from it to the PCCU treasurer who deposits them
in the PCCU savings bank account . Between January 30, 1959 , and June 16, 1961,
the only deposits in that account , totaling about $237, represent checks from the
distributor made out to Respondent but deposited to the credit of PCCU. For a time
during 1955 and 1956 , the PCCU had in like manner received the profits averaging
about $20 every 2 months from a prior coffee machine . Since Respondent ad-
mittedly controls the installation and continuance of such machines on its property,
and the proceeds from the concession have always been payable in the first instance
to it, and since these machines are used by all employees , it is obvious that Respond-
6 These facts are based on uncontradicted and credited testimony of various Board wit-
nesses, as corroborated in part by testimony of Victor I Minahan, president of Respondent,
and Cartier, Its general manager
7 Phil Bail, supervisor of composing room, and Ira Marsh, foreman of the "ad alley"
located in that room.
8 These facts are based on uncontradieted and credited testimony of Douglas Kranzusch,
Bernard H. Kemps, and Sylvester Kneepkens
'Hofmann was secretary of the PCCU for the first 10 years of his employment with
Respondent, and was a member of it until he retired
io These facts are based on uncontradicted and credited testimony of Hofmann. Joseph H
Pozolinski, Dudley Chaffee, and Kranzusch
THE POST PUBLISHING COMPANY 281
ent has in effect donated its profits from this source to the PCCU, as in the case of
the cafeteria profits.ii
Respondent claims its grant of the cafeteria for PCCU meetings was nondis-
criminatory because under company policy the same privilege would be given any
other union representing its employees, and that "mere acts of courtesy or generosity
on the part of management cannot be distorted into acts of domination or financial
support." As to its policy, Cartier testified that Respondent's library or "civic"
room is now open for meetings by outside organizations , but he does not say that
it was in the past or that the cafeteria can be or is in fact used by other organizations.
President Minahan testified the same plant meeting privilege has long been extended
to an ITU local representing employees in the Green Bay, Wisconsin, plant of
another newspaper publisher which is affiliated with Respondent through common-
stock ownership, and that the cafeteria,at Appleton would be open for use by any
other union that requested it. However, this self-serving expression of a "policy"
which has never been put to the test is not impressive in light of the fact that in
practice Respondent has only allowed the PCCU to meet in the cafeteria, as well as
giving that organization all the profits from the operation. Hence, the cases cited
by Respondent which find no violation of the Act where employers afford equal
treatment to all unions , are not controlling here.
If the grant of the cafeteria for meetings after workhours , and acquiescence in
occasional use of company time and equipment for preparing and posting union
notices and soliciting signatures for a petition were the only acts of "courtesy or
generosity" involved in the case, I would be inclined to agree with Respondent that
this type of "support" did not amount to a violation of the Act. The PCCU meet-
ings were comparatively infrequent, did not take place on company time, and
apparently did not interfere with normal use of the cafeteria by all employees.
Preparation and printing of a few meeting notices and one petition by skilled type-
setters and linotype operators could not have cost the Company much in worktime;
there is no proof that this printing or the solicitation of signatures to the petition on 1
day interfered appreciably with the employees' normal duties or production of Re-
spondent 's newspaper . These facts must be evaluated in light of the circumstances
that: (1) the PCCU has been an active labor organization for about 38 years,
during which it negotiated and signed yearly contracts with Respondent, and dis-
cussed and adjusted grievances with it , operated under a formal constitution and
bylaws, elected officers periodically, and conducted private meetings with some ad-
herence to parliamentary procedure. (2) In this long period no criticism or even
suspicion has been cast upon its legitimacy or independent character, or Respondent's
relation to it, so far as this record discloses , until the filing of the charge herein. It
is significant that Respondent is not charged with domination of the PCCU, and
General Counsel produced testimony of only one former PCCU officer (Kranzusch)
which tended to show that during one contract negotiation meeting in 1955 or 1956
Respondent's representatives cut short negotiations on PCCU wage proposals by
presenting a company offer on a "take-it-or-leave-it" basis, which the PCCU accepted
after private discussion, even though the offer was less than the employees wanted.
Other former and present PCCU officers who testified did not corroborate his testi-
mony. Such isolated testimony of one instance of lack of good-faith bargaining by
Respondent in 1 year cannot warrant a finding that its whole course of dealing with
the PCCU over 38 years has been contaminated by domination and control of that
organization. (3) According to Cartier's uncontradicted testimony, the parties have
enjoyed amicable relations over the years, with no strikes or work stoppages by the
employees, and amicable adjustment of all grievances between the parties themselves
without resort to outside arbitration.
These are potent factors which militate against a finding of coercive and unlawful
support or assistance . See Chicago Rawhide Manufacturing Company v. N.L.R.B.,
221 F. 2d 165, 170 (C.A. 7); Hotpoint Co., a division of General Electric Company,
a New York Corporation v. N.L.R.B., 289 F. 2d 683, 688, 689 (C.A. 7); H. H.
Erikson and Erik E. Erikson, co-partners, d/b/a Detroit Plastic Products Company,
114 NLRB 1014, 1023-1026.
11 These facts are based on credited testimony of Cartier, Pozolinski, and Chaffee. The
nature and extent of the donations and Respondent's control of them is also shown by the
lack of proof that Respondent charges the PCCU any rental or other carrying charges for
operation of the cafeteria, and the fact that at one time, when the vending machine dis-
tributor had commingled profits from the coffee and other vending machines in one check,
Cartier admits he told the distributor to separate the profits, and give those from the
coffee machine in a separate check to the PCCU
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However , Respondent 's financial assistance to the PCCU was of such a nature
and extent that, in my opinion , it amounted to unlawful assistance and support, for
the following reasons:
(1) While the PCCU in its early years derived some income from nominal dues
paid by members , 12 and has always charged initiation fees for new apprentices and
journeymen,13 dues were eliminated by the members in 1947 or 1948 because they
felt that the expenses of PCCU were not sufficient to warrant collection of dues, which
had become difficult. In the past 9 years only about $100 in initiation fees have been
collected. In contrast , in the same latter period Respondent gave the PCCU the full
use of $600 a year of cafeteria profits, or a total of $5,400, and proceeds of the coffee
vending machine which totaled about $120 a year in 1955 and 1956, and about $237
from January 1959 to June 1961. There is no proof of the exact receipts of PCCU
from the vending machine between 1956 and 1959 , but it is a reasonable inference
that they were comparable to those of 1955 and 1956. Thus, from January 1959
onward, PCCU has received roughly $700 a year from these sources as a result of
Respondent's benevolence, as against less than $15 a year from initiation fees. Over
the past 5 years, the main expenses of PCCU have been for the refreshments at its
meetings and annual Christmas parties, with occasional outlays for flowers or other
condolences at death of members, a standard $10 wedding present, and gifts for sick
members. In 1961 , it also paid a local attorney $ 100 for services in preparation and
filing of reports necessary to comply with the reporting provisions of the 1959 amend-
ments to the Act.14 It is clear from these facts that well over 95 percent of the money
used by the PCCU in its normal operations since 1959 has come from operations con-
trolled by Respondent . is Respondent has thus almost completely subsidized the
operations of the PCCU to such an extent that it has never run into debt, but has
always had a surplus fund . This subsidy has not been a matter of general or casual
benevolence of Respondent toward all employees, but has been consciously afforded
to the PCCU alone, for the record shows that the proceeds from the cafeteria and
coffee machine have come from use of those facilities by about 175 employees, but the
net income has been given to and used by the PCCU for the benefit only of its mem-
bers, who constitute about a third of the entire company payroll . 16 I find on these
facts and circumstances and conclude as a matter of law that Respondents grant of
these funds to the PCCU constituted substantial financial support and assistance to
that organization which was well calculated to influence employees to continue their
adherence to that organization , and thus interfered with , restrained , and coerced
employees in their statutory right of free choice of bargaining representative , in viola-
tion of Section 8(a) (2) and (1) of the Act. The Carpenter Steel Company, 76 NLRB
670, 682-684, 688-690; The Standard Transformer Company, 97 NLRB 669; Thomp-
son Rama Wooldridge, Inc. (Dage Television Division), 132 NLRB 993.
In support of Respondent 's contention , Minahan testified to his understanding that
these funds were used by PCCU only for recreational and refreshment purposes, and
that if any other union represented the employees, Respondent would have no objec-
tion to that organization using the funds "providing the money was used purely for"
such purposes. If the funds had been devoted entirely to those purposes, this would
bring the case more closely within the decision of the Seventh Circuit Court of Appeals
in the Chicago Rawhide Manufacturing Company case, supra, where the court found
no violation of the Act in the employer's contribution of moneys to an employee
recreation committee for recreational purposes. However, since some of the moneys
here were used for other union purposes, such as gifts, condolences, and remem-
brances, and at least once for an apparent substantial fee to an attorney to handle
purely union business , 17 and the contribution of these funds stands out as the salient
12 Dues were never more than 50 cents a month per member
13 It is $2 50 for an apprentice, and $5 for a journeyman
14 This might be the $100 withdrawal of June 16 1901, from the PCCU savings account,
the only withdrawal listed for the year to that date
15 Admissions of Dlinahan and Cartier show that Respondent has at all times had con-
trol over the cafeteria and vending machine operations through its right to permit those
operations on its premises, which license it could obviously terminate at any time and its
deliberate arrangements for transfer of the proceeds therefrom directly to the PCCU
115 PCCU meetings were attended by an average of 30 to 40 members out of a total of
approximately 60 in the bargaining unit; no other employees attended, of course. The
Christmas parties of the PCCU were exclusive PCCU affairs, as its officers decided who
would be invited to them The last party, in 1960, was attended by about 50 PCCU mem-
bers, with wives, totaling about 100 people But apparently no other employees of Re-
spondent were invited or attended.
17 The payment to the attorney, whether it be the $100 withdrawal of June M. 1961,
from the bank account, or some other sum, occurred after April 1961, and clearly came
THE POST PUBLISHING COMPANY 283
feature in the case .( not merged in or overshadowed by any previous background or
present context of other employer conduct denoting domination of PCCU or other
hostility to employees ' rights ), and Minahan 's testimony indicates that these contribu-
tions have never been casual or outright , but are always conditional upon use of the
funds only for limited purposes , I must conclude that the rulings in Chicago Rawhide
Manufacturing Company and cases of like tenor are not controlling.
C. Minahan's speech of April 6, 1961
On April 4, 1961, the ITU held an organizational meeting for employees in Apple-
ton, which was attended by some mechanical employees of Respondent. On April 6,
1961, there was a meeting of PCCU members with Minahan and Cartier in the plant
cafeteria after workhours, which was convened at the request of Respondent. At the
outset of this meeting, Minahan told the employees that management had learned
there were grievances in the production department which had caused some employees
to try to bring the ITU into the plant. After expressing surprise at their dissatis-
faction, since no formal grievances had been filed with management for some time,
he said that he had asked for the meeting to hear about the grievances, and then
consider them. He told the men that the Company was not trying to interfere with
those who wanted to join the ITU, or any other organization, as they had a right to
join any union they desired, and the Company would bargain with any union they
chose. He said he did not care if they joined the ITU, but wished to express his
opinion about it. He stated Respondent's preference for continuing to deal with the
PCCU, because of 38 years of amicable relations with that organization. He then
expressed certain objections to the ITU, including its high dues, certain terms in their
contracts which were costly to employers, and that bargaining with the ITU would
probably compel Respondent to hire a lawyer and get more help in the plant, which
could have an effect on the company profit-sharing plan, in which the employees were
interested.
Employees then voiced their grievances, and some complained particularly that
they were at a disadvantage in negotiating with Respondent, because company officers,
with their superior knowledge and the advice of attorneys, were better able to bargain
and could draw up contracts in forms which would "mean nothing," while the em-
ployees had no time to run their union, were not versed in labor relations, and had
no lawyer to help them, and that they needed one to represent them in bargaining
with Respondent Minahan asked the men who expressed this complaint if "we have
ever gypped you?" to which they replied, "We don't know."
The course of the meeting to this point is not in dispute. The only conflict arises
over the next remarks of Minahan. According to Board witnesses Haase, Cleveland,
Reitz, and Kranzusch, Minahan then turned to Cartier and suggested the possibility
that Respondent might set aside some funds so that "they" could hire an attorney
to get legal advice in bargaining.18 Minahan flatly denied that he made any such
suggestion, testifying that he told the men that, if this was true, the PCCU should hire
an attorney or someone experienced in the field of labor relations to represent them,
and that Respondent would have no objection to meeting with such representative.
Cartier and employees Bernard H. Kemps and Sylvester Kneepkens supported
Minahan's denial of the statement attributed to him, but Cartier and Kneepkins
admitted that Minahan said he thought the PCCU "should have a fund for hiring an
attorney," and Kneepkens also testified that he and Kemps replied that the PCCU
already had a bank account which was available for that purpose. Kemps did not
corroborate Kneepkens on the last-quoted remark. Considering the fact that Re-
spondent has been almost completely and illegally subsidizing the PCCU for some
years past, Respondent's expressed aversion to dealing with the ITU, and its knowl-
edge that some employees saw the need for immediate representation by the ITU
or some outsider versed in labor relations, and had taken steps to obtain it, as well
as the fact that the four Board witnesses aforesaid were employees of Respondent
testifying against their own possible economic interest, I am inclined to believe that
Manahan seized upon the employees' mention of the need for an attorney to throw
out the suggestion that Respondent could help the PCCU with funds for this pur-
pose, in an attempt to forestall any move by the employees to change their bargain-
ing representative. I therefore credit the version of Minahan's remarks given by the
four Board witnesses. I find that Respondent thereby proferred further financial
from funds which had been built up since January 1959 , either from the coffee machine
or cafeteria
"The context of the remarks indicates that "they" meant the employees or the PCCU,
and several employees testified that they so understood it
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistance and support to the PCCU in violation of Section 8 (a) (1) and ( 2) of the
Act.
In the context of the substantial and unlawful financial assistance given by Re-
spondent to the PCCU, and its readiness to continue that form of support , as found
above , I must conclude and find that its contemporaneous contributions of material
support in the form of permission to use plant property , equipment , and company
time for various union activities , was part of its pattern of continued and substantial
support of the PCCU which was well calculated to coerce and restrain employees in
the exercise of their right freely to choose or change their bargaining representative.
Hence, I find that the material support aforesaid given by Respondent also violated
Section 8 (a) (2) and (1) of the Act.19
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection
with Respondent 's operations described in section I, above, have a close , intimate,
and substantial relationship to trade, traffic , and commerce among the several States,
and such of them as have been found to constitute unfair labor practices tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation of
Section 8 (a) (1) and ( 2) of the Act, I will recommend .that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
On the above findings of fact, and on the entire record herein , I make the
following:
CONCLUSIONS OF LAW
1. By offering and contributing financial and other assistance and support to
Appleton Post-Crescent Craftsman 's Union to the extent found above, thereby inter-
fering with , restraining , and coercing employees in the exercise of their rights guar-
anteed by Section 7 of the Act , Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of Sections 8(a) (2) and (1)
and 2(6) and (7) of the Act.
2. Respondent has ,not violated the Act as alleged in the complaint by its main-
tenance and enforcement of its agreement dated October 1, 1959 , with the Appleton
Post-Crescent Craftsman 's Union.
[Recommendations omitted from publication.]
to Respondent also relies on facts showing that in May 1961, the PCCU members, at a
private meeting after workhours in which there was a full discussion , voted not to dissolve
the PCCU, and shortly thereafter about 16 members who had previously signed ITU appli-
cations caused a formal petition of withdrawal of those applications , signed by all of them,
to be given to the ITU. Although the employees ' action at the meeting appears on its face
to have been free of management inspiration or control , the fact that the withdrawal peti-
tion was prepared , printed, circulated , and signed on company time with use of company
facilities , under circumstances indicating company acquiescence therein , in the light of
the substantial assistance to the PCCU otherwise found herein , raises grave doubt whether
these actions of the employees repudiating ITU and restating their adherence to PCCU
were wholly free of Respondent 's Influence . In any event , such employee action , coming
after the unlawful conduct of Respondent , affords no defense thereto. Holland Manu-
facturing Company, 129 NLRB 776, 785.
Hatch Chevrolet and Local 481, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers Union of
America. Case No. 21-CA-4443. March 15,1962
DECISION AND ORDER
On October 17, 1961, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding that
136 NLRB No. 26.