National Labor Relations Board v. Register Pub. Co.

• Decision Date: 10 April 1944
• Docket Number: No. 10364.,10364.
• Citation: 141 F.2d 156
• Parties: NATIONAL LABOR RELATIONS BOARD v. REGISTER PUB. CO., Limited.
• Court: U.S. Court of Appeals — Ninth Circuit

141 F.2d 156 (1944)

NATIONAL LABOR RELATIONS BOARD v. REGISTER PUB. CO., Limited.

No. 10364.

Circuit Court of Appeals, Ninth Circuit.

February 28, 1944.

Rehearing Denied April 10, 1944.

Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, and William J. Isaacson and William T. Whitsett, Attys., N. L. R. B., all of Washington, D. C., and Maurice J. Nicoson, Regional Atty., N. L. R. B., of Los Angeles, Cal., for petitioner.

O'Melveny & Myers, Homer I. Mitchell, John Whyte, and Willis Sargent, all of Los Angeles, Cal., for respondent.

Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.

MATHEWS, Circuit Judge.

Respondent, Register Publishing Company, Limited, a California corporation, was at all pertinent times engaged in the business of publishing a daily newspaper called the Santa Ana Register in Santa Ana, California. On April 30, 1941, and at all pertinent times prior thereto, a majority of respondent's employees¹ were members of Santa Ana International Typographical Union No. 579, a labor organization, hereafter called the union. For purposes of collective bargaining, the union was at all pertinent times the representative of all the employees. On March 27, 1942, the union filed with the National Labor Relations Board charges to the effect that on March 1, 1940, and at all times thereafter, respondent had engaged in the unfair labor practices hereafter mentioned. On April 23, 1942, the Board issued a complaint, stating the charges, and caused the complaint to be served on respondent. Respondent answered, a hearing was had, and on October 7, 1942, the Board stated its findings and conclusions.

The Board found that respondent had refused to bargain collectively with the union as the representative of its employees and had discharged and refused to reinstate 18 employees² who were members of the union, and that these acts tended to lead to labor disputes burdening and obstructing interstate commerce.

The Board concluded that by refusing to bargain collectively with the union as the representative of its employees, respondent had engaged in an unfair labor practice listed in § 8(5) of the National Labor Relations Act, 29 U.S.C.A. § 158 (5); that by discharging and refusing to reinstate 18 employees who were members of the union, respondent had discriminated against them in regard to hire and tenure of employment, had thereby discouraged membership in the union and had thereby engaged in an unfair labor practice listed in § 8(3) of the Act, 29 U.S.C.A. § 158(3); that by refusing to bargain collectively with the union as the representative of its employees and by discharging and refusing to reinstate 18 employees who were members of the union, respondent had interfered with, restrained and coerced its employees in the exercise of rights guaranteed in § 7 of the Act, 29 U.S.C.A. § 157, and had thereby engaged in an unfair labor practice listed in § 8(1) of the Act, 29 U.S.C.A. § 158(1); and that all the practices so engaged in were unfair labor practices affecting commerce within the meaning of §§ 2 and 10 of the Act, 29 U. S.C.A. §§ 152, 160.

Accordingly, on October 7, 1942, the Board issued and caused to be served on respondent an order requiring it to cease and desist from all these practices and to take certain affirmative action.³ On February 9, 1943, the Board petitioned this court for enforcement of the order. Answering the petition, respondent prays that the order be set aside on the ground that the findings are not supported by evidence.

First. Does the evidence support the finding that respondent refused to bargain collectively with the union as the representative of its employees?

The evidence shows that respondent bargained collectively with the union in 1937, 1939, 1940 and 1941; that the 1937 bargaining resulted in an agreement with respect to rates of pay, wages, hours and other conditions of employment of respondent's employees for a period of two years ending March 1, 1939; that the 1939 bargaining resulted in an agreement renewing and extending the 1937 agreement for a period of one year ending March 1, 1940; that the 1940 bargaining occurred in March, April and May, 1940; that the 1941 bargaining occurred in April, 1941; and that no agreement resulted from the 1940 bargaining or from the 1941 bargaining.

The complaint in this case charged that respondent had refused to bargain collectively with the union as the representative of its employees on and after March 1, 1940. It did not charge any prior refusal. Our present inquiry, therefore, is limited to what occurred in and after March, 1940. As to that, the evidence shows:

Although, by its terms, the 1937 agreement, as renewed and extended in 1939, expired on March 1, 1940, the parties continued to observe that agreement until April 30, 1941. Under that agreement, journeymen printers employed by respondent⁴ were paid $1 an hour for a workweek of 5 days of 7½ hours each, with time and a half for overtime,⁵ but were not paid for any time spent on vacation. Apprentices were paid less than journeymen,⁶ but respondent was permitted to employ only three apprentices and was not permitted to exercise full control over them, they being under the union's "jurisdiction."⁷ The agreement provided for a closed shop; that is to say, it required respondent to employ none but members or apprentices of the union.

In March, 1940, the union proposed to respondent that they make an agreement under which respondent's journeymen printers would be paid $1.15 an hour for a workweek of 5 days of 7½ hours each, with time and a half for overtime and one week's vacation annually with pay. Respondent rejected that proposal.

Thereafter, in March, 1940, respondent proposed to the union that they make an agreement under which some of respondent's journeymen printers⁸ would be paid $1 an hour and others⁹ 75 cents an hour for a workweek of 6 days — 5 days of 7 hours each and one day of 5 hours — with time and a half for overtime, but none would be paid for time spent on vacation, and respondent would have full control of its apprentices¹⁰ and could operate its plant as an open shop. The union rejected that proposal.

In April, 1940, the union proposed to respondent that one of the several questions about which they were in disagreement, namely, the question of wages, be submitted to arbitration. Respondent rejected that proposal.

Thereafter, in April, 1940, the union proposed to respondent that they make an agreement under which all journeymen printers employed by respondent would be paid $1.06 an hour for a workweek of 5 days of 7½ hours each, with time and a half for overtime and one week's vacation annually with pay. Respondent rejected that proposal.

In May, 1940, the union proposed to respondent that they make an agreement under which all journeymen printers employed by respondent would be paid, for a workweek of 5 days of 7½ hours each, $1.03 an hour until September 1, 1940, $1.04 an hour from September 1, 1940, to March 1, 1941, $1.05 an hour from March 1, 1941, to September 1, 1941, $1.06 an hour from September 1, 1941, to March 1, 1942, and $1.08 an hour from March 1, 1942, to March 1, 1943, with time and a half for overtime and vacation pay as follows: Two days in 1940, 3 days in 1941, 5 days in 1942 and 5 days in 1943. Respondent rejected that proposal.

On April 15, 1941, the union sent respondent a letter reading, in part, as follows: "The union has instructed its scale committee to offer you the following proposition as a fair and equitable basis for adjusting the differences that exist between it and the Santa Ana Register;¹¹ One dollar and seven cents ($1.07) until October 1, then one dollar and twelve cents ($1.12) per hour until March 31st, 1942."¹² That, obviously, was intended as a proposal that respondent and the union make an agreement under which all journeymen printers employed by respondent would be paid, for a workweek of 5 days of 7½ hours each, $1.07 an hour until October 1, 1941, and $1.12 an hour from October 1, 1941, to March 21, 1942, with time and a half for overtime. Respondent rejected that proposal.

On April 26, 1941, respondent sent the union a letter reading as follows: "In accordance with our recent negotiations, the board of directors of respondent have authorized me¹³ to place this proposition before you in writing. Namely, we are willing to allow our printers to work forty (40) hours a week,¹⁴ instead of 37½, at the same rate of pay they are now getting of $1 an hour. This will give them a weekly increase of $2.50, or approximately $130 a year. Also, we are to have complete control of the number and work of our apprentices, as we see fit for efficient operation of our plant."¹⁵ That, obviously, was intended as a proposal that respondent and the union make an agreement under which all journeymen printers employed by respondent would be paid $1 an hour for a workweek of 40 hours, with time and a half for overtime, and respondent could have as many apprentices as it wished and would have complete control of their work. The union rejected that proposal.

If the evidence showed only the foregoing facts, it would not support the finding that respondent refused to bargain collectively with the union as the representative of its employees; for, although required to bargain with the union, respondent was not required to accept any of the union's aforesaid proposals, nor was it prohibited from making either of its aforesaid proposals to the union.

But, in addition to the foregoing facts, the evidence shows that in April, 1940, in May, 1940, and in April, 1941, the union¹⁶ requested that any agreement which might result from the bargaining between respondent and the union be reduced to writing and signed by both parties. The evidence further shows that, to each of these requests, respondent¹⁷ replied that it would not sign any agreement with the union. By so...