NLRB v. Post Publishing Company

• Decision Date: 21 December 1962
• Docket Number: No. 13780.,13780.
• Citation: 311 F.2d 565
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The POST PUBLISHING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

311 F.2d 565 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The POST PUBLISHING COMPANY, Respondent.

No. 13780.

United States Court of Appeals Seventh Circuit.

December 21, 1962.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Attorney, N. L. R. B., Washington, D. C., Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Allison W. Brown, Jr., Attorney, N. L. R. B., MacDonald Gallion, Atty. Gen. of Alabama, John C. Tyson, III, Asst. Atty. Gen., for petitioner.

Victor M. Harding, Milwaukee, Wis., Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, Wis., for respondent.

Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.

HASTINGS, Chief Judge.

This case is before us on the petition of National Labor Relations Board for enforcement of its order issued against respondent, The Post Publishing Company, on March 15, 1962. The order in question was entered pursuant to Section 10 of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C.A. §§ 151-168, herein called the Act. The Board's decision and order are reported at 136 NLRB No. 23.

The Board found, in agreement with the Trial Examiner, that respondent violated § 8 (a) (2) and (1) of the Act¹ by offering and contributing financial and other assistance and support of the Appleton Post-Crescent Craftsmen's Union, herein called PCCU.

At the time of the dispute in question, PCCU was an independent union and since 1921 had been the lawfully recognized bargaining agent and representative of respondent's mechanical employees.

The charging party in this case is Appleton, Neenah & Menasha Typographical Union No. 612, International Typographical Union, AFL-CIO, herein called ITU. It was seeking to replace PCCU as the bargaining representative of respondent's mechanical employees. Thus, it appears at the outset that respondent found itself in the middle of a representation dispute between the two unions.

Respondent is a Wisconsin corporation engaged in the business of newspaper publication and printing in Appleton, Wisconsin. It employs about 175 persons, including approximately 70 employees in its composing room.

Prior to 1921, composing room employees were represented by ITU under a closed shop contract. In that year, such employees voluntarily left the ITU and formed PCCU as an independent labor organization. Since that time PCCU has negotiated and executed successive collective bargaining agreements with respondent.

There is no claim that respondent was the motivating force in the 1921 break with ITU. There is no claim by the Board that respondent has ever dominated or interfered with the internal affairs of PCCU. The trial examiner paid tribute to the character of the relationship between respondent and PCCU in the following language:

"The PCCU has been an active labor organization for about 38 years, during which it negotiated and signed yearly contracts with Respondent, and discussed and adjusted grievances with it, operated under a formal constitution and bylaws, elected officers periodically, and conducted private meetings with some adherence to parliamentary procedure. * * * 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 * * *. 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."

It is agreed that the employees broke away from ITU and formed PCCU because they thought ITU dues and other charges were too high. At the time of the hearing, ITU charged initiation fees of $75 and dues of $23 a month. By way of contrast, in the beginning PCCU assessed dues of not to exceed 50¢ per month and initiation fees of $2.50 to $5.00. About 1948, PCCU eliminated all dues because of a surplus in its treasury.

It was several years after PCCU had discontinued the collection of dues before respondent began what the Board found to be "financial support" of PCCU.

Respondent installed a cafeteria for employees on its premises in 1952. The mechanical employees requested respondent to permit them to operate it. Respondent agreed and appointed Amil Hofmann, a PCCU member as cafeteria director. Hofmann operated it until 1961 when he retired and was succeeded in that capacity by another employee. The trial examiner found that:

"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 cafeterial profits, and since that time those profits, amounting to about $600 per year, have been used by him mainly to defray the costs of refreshment 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."

Prior to 1959, respondent had an unsatisfactory experience with coffee vending machines for employees on its premises. During 1959, at their request, the mechanical employees were given permission to arrange for the installation of a coffee vending machine of the type they wanted. Such a machine was installed and PCCU was permitted to retain respondent's share of the profits therefrom for its union purposes. These payments have averaged about $10 per month.

Thus, it appears that PCCU has realized about $600 per year from cafeteria profits and $120 per year from the coffee vending machine profits, or total annual receipts of $720. It is undisputed that PCCU used these funds over the years to pay the expense of an annual Christmas party for mechanical employees and their wives, to purchase refreshments served at PCCU meetings, to buy occasional gifts for members who were ill, to pay for a standard $10 wedding present and to purchase flowers at the death of members. In 1961, PCCU paid its attorney $100 for legal services in preparation and filing necessary reports in compliance with the reporting provisions of the 1959 amendments to the Act.

As will subsequently appear, it was from the receipt of these funds by PCCU that the Board found "that respondent offered and contributed assistance to the PCCU, in violation of Section 8(a) (2) and (1) of the Act."

On April 4, 1961, ITU held an organizational meeting for employees in Appleton which was attended by some mechanical employees of respondent.

Two days later, at respondent's request, PCCU held a meeting of its members in the plant cafeteria after work. At this meeting, respondent's president Minahan told the employees that the management had learned there were grievances which had caused some employees to try to bring ITU into the plant. He expressed surprise since no grievances had been filed and inquired about any complaints they might have.

The trial examiner found that Minahan "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 ITU, but preferred to deal with PCCU because of 38 years of amicable...