Gaynor News Co., Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1951

93 N.L.R.B. 299 (N.L.R.B. 1951)

GAYNOR NEWS COMPANY, INC.
CONOLUSIONS OF LAW
299
1. The operations of Childs Company constitute trade, traffic, and commerce
among the several States within the meaning of Section 2 (6) and (7) of the Act.
2. Chain Service Restaurant Employees Union, Local 42, affiliated with Hotel
and Restaurant Employees and Bartenders International Union, A. F. of L., is a
labor organization within the meaning of Section 2 (5) of the Act.
3. By continuing in force and eltect after April 30, 1948, and on October 6,
1948, extending a contract containing illegal union-security provisions, Re-
spondent Childs Company has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, and
discriminated in regard to the hire and tenure of employment of employees and
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
4 By continuing in force and effect after April 30, 1948, and on October 6,
1948, extending a contract containing illegal union-security provisions, Re-
spondent Local 42 has attempted to cause Childs Company to discriminate against
employees in violation of Section 8 (a) (3) of the Act and has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (b) (2) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent Local 42 has not engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act by continuing in force and effect
after April 30, 1948, and on October 6, 1948, extending its contract with Childs
Company containing illegal union-security provisions.
7. Respondent Childs Company has not engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act by its refusal to
reinstate Russell R. Potter to his former job.
8. Respondent Local 42 has not engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and (2) of the Act for requiring Respondent
Childs as alleged in the complaint to refuse to reinstate Russell R. Potter to his
former job.
[Recommended Order omitted from publication in this volume.]
GAYNOR NEWS COMPANY, INC. and SHELDON A. LONER and NEWSPAPER
& MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY, PARTY TO
THE CONTRACT . Case No. ?-CA-605. February 16, 1951
Decision and Order
On October 19, 1950, Trial Examiner Sydney S. Asher 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and supporting brief.
93 NLRB No. 36.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 1 has reviewed the Trial Examiner's rulings made at the
hearing and finds no prejudicial error was committed. The rulings.
are hereby affirmed.2 The Board has considered the Intermediate Re-
port, the exceptions and brief, and the entire record in the case 3 and_
hereby adopts the Trial Examiner's findings, conclusions, and recom-
mendations with the following additions and modifications 4
1. The Trial examiner found that neither the January 2, 1946, con-
tract nor the supplementary agreement dated August 22, 1946, between
the Respondent and the Union required the Respondent to make retro-
active wage payments to any of its employees, and he therefore re-
jected the Respondent's contention that it made such payments under
the compulsion of a legally binding agreement. He further found
that even assuming that the 1946 contract required these retroactive-
payments to union members, the Respondent was nevertheless not pre-
cluded from making equal payments to nonunion employees. Follow-
ing the issuance of the order transferring the case from the Trial
Examiner to the Board, the parties by stipulation 5 agreed to incor-
porate in the record as additional evidence a copy of a second supple-
mentary agreement entered into between the Respondent and the
Union on October 9, 1947, which further amended the January 2, 1946,
contract by providing, inter alia:
In the event that the parties enter into a new written contract
effective from the expiration of the existing contract which new
contract shall expire no earlier than three months after the effec-
tive term of any new written contract which the Union may enter
into with the Publishers' Association of New York City, then and
' Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three-member
panel [Chairman Herzog and Members Murdock and Styles.
2while we agree that the Trial Examiner pioperly rejected the Respondent's offer to
prove that Loner, the charging party, made the Board his tool in his attempt to obtain
membership in the Union . we do not adopt his categorical conclusion that " the motives
of the charging party . ' however evil or unlawful .' are immaterial " Although the under-
lying motives of the charging party cannot deprive the Board of its jurisdiction to proceed
after the filing of the charge his motives may be material on the question of the Board's
discretion to accord the charging party the protection of the Act if it feels that its processes
are being abused N L R, B. v. Indiana (C Michigan Electric Co , 318 U S 9 However,
even assuming Respondent were able to prove that Loner was motivated as contended,
we do not consider that it would be in the public interest to fail to remedy the Respondent's
unfair labor practices here found
' The Respondeni ' s request for oral argument is hereby denied, as the exceptions and
brief and the record, in our opinion , adequately present the issues and the positions of
the parties
* As we agree with the Trial Examiner 's construction of Section 17 of the October 25,
1948 , contract and as the record contains no other evidence that the contracting parties
had agreed in writing to defer application of the contract's illegal union-security provision,
we find it unnecessary to adopt the further reasoning of the Ti ial Examiner set forth in
footnote 37 of the Intermediate Report.
E The stipulation , dated November 29, 1950 , provides that the document attached thereto
is a copy of the supplementary agreement entered into by and between the Respondent
and the Union of October 9, 1947 , amending the January 2, 1946 , contract then in effect,
and that the same be made a pact of the record in this proceeding.
GAYNOR NEWS COMPANY, INC. 301
in such event, the wage rates provided in such new contract be-
tween the parties hereto shall be applicable retroactively for the
last three months of the present existing contract between the
parties hereto in lieu and instead of the wage rates provided in
the present existing contract between the parties hereto for the
said three months period.
While this new evidence indicates that the Respondent had contracted
to make retroactive wage payments to the employees covered by the
original contract, it does not affect the validity of the Trial Examin-
er's basic conclusion, with which we agree, that the contract affords
no defense to the allegation that the Respondent unlawfully engaged
in disparate treatment of employees on the basis of union membership
or lack of it, as there is nothing in the supplemental agreement of
October 9, 1947, which prohibits equal payments to nonunion em-
ployees.,
2. Unlike the Trial Examiner we are not persuaded that the Re-
spondent's past conduct as revealed by the record in this case is indica-
tive of a predilection to commit other unfair labor practices in the
future. We shall therefore not adopt his recommended broad cease
and desist order but shall order the Respondent to cease and desist only
from engaging in the unfair labor practices found and any like or
related conduct.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Gaynor News
Company, Inc., Mount Vernon, New York, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Newspaper and Mail Deliverers'
Union of New York and Vicinity, or any other labor organization of
its employees, by discriminating in regard to the hire and tenure of
employment, or any term or condition of einployinent of any of its
employees because of their nonmembership in such organization, or
by any like or related conduct interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to join
labor organizations, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purposes
of collective bargaining, or other mutual aid or protection, or to re-
frain from any or all of such activities, except to the extent that such
right 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.
11 Reliable Newspaper Delivery, Inc, 88 NLRB 659.
'302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Performing or giving effect to its contract of October 25, 1948,
with Newspaper and Mail Deliverers' Union of New York and Vi-
cinity, or to any modification, extension, supplement, or renewal
thereof, or to any other contract, agreement, or understanding entered
into with said organization relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, unless and until said organization shall have been certi-
fied by the National Labor Relations Board.
(c) Entering into, renewing, or enforcing any agreement with
Newspaper and Mail Deliverers' Union of New York and Vicinity, or
any other labor organization, which requires its employees to join, or
maintain their membership in, such labor organization as a condition
of employment, unless such agreement has been authorized as provided
by the National Labor Relations Act, as amended.
(d) Recognizing Newspaper and Mail Deliverers' Union of New
York and Vicinity, or any successor thereto, as the representative of
any of its employees for the purposes of dealing with the Respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until said
organization shall have been certified by the National Labor Relations
Board.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole Sheldon A. Loner and all other nonunion em-
ployees, who were similarly situated, for any loss of pay they may
have suffered by reason of the Respondent's discrimination against
them, in the manner set forth in the Intermediate Report in the sec-
tion entitled "The Remedy."
(b) Withdraw and withhold all recognition from Newspaper and
Mail Deliverers' Union of New York and Vicinity, or any successor
thereto, as the representative of any of the Respondent's employees for
the purpose of dealing with the Respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said organization shall
have been certified by the National Labor Relations Board.
(c) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary to analyze the amount of back
pay due under the terms of this order.
(d) Post at its plant at Mount Vernon, New York, copies of they
notice attached hereto, marked Appendix A.' Copies of said notice,.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words, "A Decision and Order " the words, "A.
Decree of the United States Court of Appeals Enforcing."
GAYNOR NEWS COMPANY, IN C. 303
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the said Regional Director, in writing, within ten (10)
days from the date of this Order, what steps the Respondent has
taken to comply herewith.
Appendix A
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, we hereby notify our employees that:
WE WILL NOT encourage membership in NEWSPAPER AND MAIL
DELIVERERS ' UNION OF NEW YORK AND VICINITY, or any other
labor organization of our employees, by discriminating in regard
to their hire and tenure of employment, or any term or condition
of employment of any of our employees because of their nonmem-
bership in such organization.
WE WILL NOT enter into, renew, or continue in force and effect
any agreement with NEWSPAPER AND MAIL DELIVERERS' UNION
OF NEW YORK AND VICINITY, or any other labor organization,
which requires our employees to join, or maintain their member-
ship in, such labor organization, as a condition of employment
or continued employment, unless such agreement has been au-
thorized as provided by the National Labor Relations Act, as
amended.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right
to self-organization, to join, assist, or form any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purposes
of collective bargaining, or other mutual aid or protection, or
to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the National Labor Rela-
tions Act, as amended.
WE WILL withdraw and withhold all recognition from NEWS-
PAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY,
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any successor thereto, as a representative of any of our em-
ployees for the purposes of dealing with us concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until the said labor or-
ganization shall have been certified by the National Labor Rela-
tions Board.
WE WILL cease performing or giving effect-to our contract of
October 25, 1948, with NEWSPAPER AND MAIL DELIVERERS' UNION
OF NEW YORK AND VICINITY, or to any modification,' extension,
supplement, or renewal thereof, or to any other contract, agree-
ment, or understanding entered into with said organization relat-
ing to grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless or until
said organization shall have been certified by the National Labor
Relations Board.
WE wiLL make whole Sheldon A. Loner, and all other non-
union employees who were similarly situated, for any loss of pay
they may have suffered as a result of our discrimination against
them.
All our employees are free to become, remain, or refrain from
becoming members of any labor organization, except to the extent
that this right may be affected by agreements in conformity with Sec-
tion 8 (a) (3) of the National Labor Relations Act, as amended.
GAYNOR NEWS COMPANY, INC.,
Employer.
By ----------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Messrs. Merton C. Bernstein and Jerome A. Reiner, for the General Counsel.
Bandler, Haas & Kass, by Messrs. Julius Kass and Richard L. Halpern, of New
York, N. Y., for the Respondent.
Mr. Samuel Duker, of New York, N. Y., for the Union.
STATEMENT OF THE CASE
Upon amended charges duly filed by Sheldon A. Loner, an individual, the
General Counsel of the National Labor Relations Board,' by the Regional
Director of the Second Region (New York, New York), issued a complaint dated
June 13, 1950, against Gaynor News Company, Inc., Mount Vernon, New York,
I The General Counsel and his representative at the hearing are referred to as the
General Counsel. The National Labor Relations Board is referred to as the Board.
GAYNOR NEWS COMPANY, INC. 305
herein called the Respondent, alleging that the Respondent had engaged in and
was engaging in unfair labor practices within the meaning of Section 8 (a) (1),
(2), and (3), and Section 2 (6) and (7) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act. Copies of the charge, the
amended charge, the complaint, and the notice of hearing were duly served upon
the Respondent and upon Newspaper & Mail Deliverers' Union of New York and
Vicinity, herein called the Union.
In substance, the complaint alleged that: (1) On October 25, 1948, the Respon-
dent instituted an increased wage rate and other benefits for its employees in
certain described categories; (2) in October or November 1948, the Respondent
paid each of its employees in the said categories who was a member of the Union
retroactive wages from July to October 1948, and has failed and refused to pay
similar retroactive wages to each of its employees in the said categories who was
not a member of the Union, including Sheldon A. Loner; (3) in October or
November 1948, the Respondent granted each of its employees in the said cate-
gories who was a member of the Union a vacation with ,pay or the equivalent
pay, and has failed and refused to grant a similar vacation with pay or the
equivalent pay to each of its employees in the said categories who was not a
member of the Union, including Sheldon A. Loner; (4) on October 25, 1948, the
Respondent and the Union entered into a collective bargaining agreement cover-
ing the Respondent's employees in the said categories which required member-
ship in the Union as a condition of continued employment; and (5) the said
agreement is invalid and in violation of the Act.
The Respondent duly filed its answer which, in effect, admitted certain facts
with respect to commerce, admitted that on or about October 25, 1948, it increased
wages and other benefits for its employees in certain categories, admitted that
in October or November 1948, it paid retroactive wages to each employee in tlib
said categories who was a member of the Union and has failed to make'similar
payments to each of its employees in the said categories who was not a member
of the Union, including Loner ; admitted that in October or November 1948, it
granted retroactive vacation benefits to each of its employees in the said cate-
gories who was a member of the Union and has failed to grant similar vacation
benefits to each of its employees in the said categories who was not a member of
the Union, including Loner ; admitted that it had executed a contract with the
Union, but denied the invalidity of the contract, and denied the commission of
any unfair labor practices. The Union likewise filed an answer in which it made
substantially similar admissions and denials, except with respect to certain facts
concerning commerce. With respect to certain commerce facts, the Union denied
knowledge or information sufficient to form a belief. As an athrmative defense,
the Union alleged, in effect, that the Union had filed with the Board's Regional
Director for the Second Region a petition for authority to bargain with respect
to union security, and that the said Regional Director arbitrarily, unreasonably,
and in derogation of law, had refused to entertain the said petition.
Pursuant to notice, a hearing was held on July 17, 18, and 19, 1950, at New
York, New York, before Sydney S. Asher, Jr., the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel, the Respon-
dent, and the Union were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
At the outset of the hearing, the Respondent moved to bar one of the attorneys
for the General Counsel from participation, on the ground that he was serving
without compensation and was therefore not an employee of the Board. The
943732-51-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion was denied' The Union moved to intervene. The motion was granted„
but the right of the Union to intervene was restricted to the question of the
legality of the contract between the Union and the Respondent. The Respon-
dent's motion to bar the Union from further participation in the hearing was
denied s The Union moved to amend its answer with respect to certain formal
statements therein. Without objection, the motion was granted.
The General Counsel moved to amend the complaint by adding allegations
that the contract of October 25, 1948, in addition to requiring membership in
the Union as a condition of continued employment, "otherwise provided for the
preferential treatment of Union members," and that the said contract is still
in full force and effect. The motion was granted. The Respondent moved to
dismiss so much of the complaint as alleged the execution of an illegal contract
on October 25, 1948, on the ground that the charge referring to the contract
was filed and served more than 6 months after the alleged date of the execution
of the contract. The motion was denied. This ruling will be discussed here-
after. The Respondent further moved to dismiss so much of the complaint
as referred to the contract of October 25, 1948, on the ground that there was
a fatal variance between the pleadings and the proof. Ruling of this motion
was reserved. It is hereby denied, for reasons discussed below.
The Union moved to dismiss the complaint on the ground that the contract
showed on its face that it was not illegal. Ruling on this motion was reserved.
It is hereby denied, for reasons discussed below.
The General Counsel moved to strike that part of the Union's answer which
alleged as an affirmative defense that the Union had filed a petition for authority
to bargain with respect to union security and that the Board's Regional Director
had arbitrarily refused to entertain the petition. Ruling was reserved on this
motion. It is hereby denied.4
During the course of the hearing, the Respondent orally moved that the Trial
Examiner disqualify himself because of exhibited bias and prejudice, on the
ground that the Trial Examiner had consistently made rulings which had no
basis in law. The motion was denied' The Respondent also moved to quash
a subpoena served upon it, requiring it to produce certain records. The motion
was denied.'
At the close of the General Counsel's case-in-chief, the Respondent made three
motions to dismiss the complaint. Ruling on these motions was reserved.
They are disposed of herein.
At the close of the hearing, the General Counsel moved to amend the com-
plaint as to all formal matters. In the absence of objection, the motion was
' The records of the Board , of which I have taken judicial notice, indicate that the
attorney in question was clothed with full authority to represent the General Counsel
in this case . The fact that he was serving without compensation is immaterial . Section
4 (a) of the Act provides : "The Board may . . . utilize such voluntary and un-
compensated services , as may from time to time be needed."
3 During the course of the hearing , the Respondent made four other similar motions
based, in part , upon the absence of the Union 's attorney from some of the sessions of the
hearing All such motions were denied 10,
4 As the Union introduced no evidence to support its affirmative defense , the denial of
the General Counsel ' s motion to strike the affirmative defense cannot substantially affect
the rights of any of the parties.
5 West Texas Utility Company , Inc, 85 NLRB 1396 ( footnote 2 therein ) enforced, 184
F. 2d 233 (C. A. D C ). The Respondent did not support its motion by any affidavits
"setting forth in detail the matters alleged to constitute grounds for disqualification," as
required by Rules and Regulations of the Board-Series 5 , as amended , Section 203 37.
6 The Respondent ' s motion to quash the subpoena was made orally , and more than 5
days after the service of the subpoena Rules and Regulations of the Board-Series 5, as
amended, Section 203 31 ( b), provides that such motions shall be made in writing within
5 days after service of the subpoena.
GAYNOR NEWS COMPANY, INC. 307
granted. The Respondent made three additional motions to dismiss the com-
plaint. Ruling on these motions was reserved. They are disposed of herein.
All parties were afforded an opportunity to present their contentions orally
upon the record. The General Counsel and the Respondent did so. All parties
were granted time after the close of the hearing to file briefs and/or proposed
findings of fact and conclusions of law. The Respondent has submitted a brief
which has been considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 7
The Respondent is a New York corporation, with its principal office and place
of business in Mount Veinon, New York. It is engaged in the business of the
purchase, sale, and wholesale distribution and delivery of newspapers, maga-
zines, and other periodicals to retail stands. During the year ending January,
1949, the Respondent, in the course and conduct of its business operations,
caused to be purchased, transferred, and delivered to its place of business in
Mount Vernon, New York, newspapers, magazines, and other periodicals valued
at in excess of $500,000, of which approximately 10 percent was transported to
its place of business in New York from points outside the State of New York.
Among publishers from whom the Respondent purchased newspapers, maga-
zines, and other periodicals were the Curtis Publishing Company, in Philadelphia,
Pennsylvania, and the Fawcett Publishing Company, in Greenwich, Connecti-
cut. Among the newspapers purchased by the Respondent were the New York
Times, the New York Herald-Tribune, the New York Daily News, and the New
York Mirror, all of which utilize the wire services of the United Press and the
Associated Press.
The periodicals purchased by the Respondent are delivered by the publishers
to the Respondent's plant. They are then bundled and delivered to dealers in
trucks driven by the Respondent's employees. Unsold copies are returned to
the Respondent's plant. During the year ending January 1949, the Respondent,
in the course and conduct of its business operations, sold and delivered news-
papers, magazines, and other periodicals valued at in excess of $1,000,000, of
which approximately 25 percent was transported from its place of business in
New York to points outside the State of New York.
The Respondent is a member of the Suburban Wholesalers Association; which
has members in the States of New York and New Jersey.
The Respondent admits, and I find, that it is engaged in commerce within
the meaning of the Act"
II. THE ORGANIZATION INVOLVED
Newspaper and Mail Deliverers' Union of New York and Vicinity is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue of Section 10 (b)
The original charge, which was served upon the Respondent on February 3,
1949, alleges in effect that, since July 20, 1947, and at all times thereafter, the
The facts contained in this section are derived from the Respondent's answer , stipula-
tions entered into between the General Counsel and the Respondent, and the uncontra-
dicted testimony of James B Gaynor, president of the Respondent.
74 Stansslaus Implement and Hardware Company, Limited, 91 NLRB 618.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-Respondent violated Section 8 (a) (1) and (3) of the Act by paying Sheldon A.
Loner lower wages than it paid to members of the Union and has refused to pay
Loner retroactive pay for the period from July 17 to October 31, 1948, and vaca-
tion benefits which it paid to members of the Union, because he was not a mem-
ber of the Union. The amended charge, served on the Respondent on June 13,
1950, alleges in effect that the Respondent since August 1, 1948, and at all times -
thereafter, violated Section 8 (a) (1), (2), and (3) of the Act by failing and
refusing to pay Loner retroactive pay for the period from July 17 to October 31,
1948, and vacation pay which it paid to members of the Union, because he was not
a member of the Union, and by executing, on October 25, 1948, an illegal contract
requiring membership in the Union. The complaint, as described above, alleges
in effect that the Respondent failed and refused to make retroactive wage pay-
ments and grant retroactive vacation benefits not only to Loner, but to all other
nonunion employees similarly situated.
The Respondent takes the position that the complaint should be limited to the
alleged violation of Section 8 (a) (1) and (3) involved in its failure to pay
Loner retroactive pay for the period from July 17 to October 31, 1948, and the
failure to pay him retroactive vacation pay which it paid to members of the
Union. It would exclude from consideration all allegations that similar treat-
ment was accorded to nonmembers of the Union other than Loner, and any con-
sideration of the legality or illegality of the contract of October 25, 1948, on
the ground that these allegations were added to the original charge more than
,6 months after the alleged acts had taken place. This position is predicated
upon the proviso to Section 10 (b) of the amended Act, the pertinent part of
which reads as follows :
. . . No complaint shall issue based upon any unfair labor practice oc-
curring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom said
charge is made . . .
In Cathey Lumber Company,' a charge had been filed and served prior to the
enactment of the proviso to Section 10 (b), quoted above. After the proviso
took affect, the complaint was issued. It contained allegations of additional
unfair labor practices not set forth in the charge, which had occurred prior to
the effective date of the proviso and more than 6 months prior to the issuance of
the complaint. The respondent in that case and the General Counsel, pointing
to the provisions of Section 10 (b), there contended that the Board could not in-
clude in'tlie complaint any allegations of unfair labor practices which were not
included in the original charge and which occurred more than 6 months prior
to the issuance of the complaint. In rejecting this view, the Board stated:
As there is no requirement that the charge set forth each unfair labor
practice allegation to be litigated, the practice of enlarging upon the charge
to include in the complaint allegations of unfair labor practices uncovered
during the investigation likewise continues unchanged under the Amended
Act-but with this important exception made necessary by the purpose of the
limitation period imposed by the proviso : that the complaint shall not include
allegations of any unfair labor practices occurring more than 6 months prior
to the filing and service 'of the charge initiating the case. It follows that
we must reject the construction of the proviso to Section 10 (b) advocated
by the Respondent and the General Counsel to the extent that it would
also proscribe inclusion in the complaint of allegations of unfair labor prac-
tices not specifically mentioned in a charge, although the charge was filed
6 86 NLRB 157.
GAYNOR NEWS COMPANY, INC . 309
with the Board and served upon the party charged within 6 months after the
commission of the particular alleged unfair labor practices.
Upon the basis of the foregoing , we conclude that the proviso to Section
10 (b) merely es;tinguished liability for those unfair labor practices which
were committed more than 6 months prior to the filing and service of the
charge initiating the case, and that a complaint may lawfully enlarge upon
a charge if such additional unfair labor practices were committed no longer
than 6 months prior to the filing of such charge. [Emphasis added.]
The Respondent relies upon Joanna Cotton Mills Company v. N. L. R. B.' and
Superior Engraving Company v. N. L. R. B.10 as authorities repudiating the
Cathey doctrine . With great respect for the courts which decided those cases,
I am constrained to adopt the principle enunciated by the Board in the Cathey
case until the Supreme Court of the United States has had an opportunity to
pass upon the question."
The doctrine set forth in'the Cathey case, which has been consistently followed
by the Board,` is dispositive of the Respondent 's contentions herein. I therefore
find that the charges herein were timely filed and served with respect to any
unfair labor practices which occurred within the 6 months prior to February 3,
1949, whether or not said unfair labor practices were specifically mentioned in
the original charge. Accordingly , the Respondent 's motion to strike certain
allegations of the complaint has been denied.
B. Chronology of events
The essential facts are not disputed . The Respondent and the Union have had
collective bargaining agreements with respect to the employees of the Respond-
ent's delivery department since 1943 . On January 2, 1946, they executed a con-
tract in which it was stated that the Union was contracting "for and in behalf of
the Union and for and in behalf of the members thereof now employed and
hereafter to be employed by the employer ."" This agreement was made effective
from October 1, 1945, to October 16, 1947. It contained a closed-shop clause, pro-
vided for specified wages , and for paid vacations based on the number of days
worked during the previous year.
Despite the closed-shop provisions of this contract , the Respondent employed
in its delivery department employees known to be nonunion. '
On August 22, 1946 , the parties executed an agreement extending the term
of the previous contract to October 18, 1948. This extension agreement increased
wages and contained other amendments , not here material.
9176 F. 2d 749 (C. A. 4).
20 183 F . 2d 783 (C A 7).
11 Compare Bethlehem Steel Company , Shipbuilding Division, et al., 89 NLRB 341 ; and
J. H. Rutter-Rex Manufacturing Company, Inc, 90 NLRB 130.
12 See, for example , J. H. Rutter-Rex Manufacturing Company, Inc, 86 NLRB 470.
The Intermediate Report in Childs Company , Cases Nos. 2-CA-420 and 2-CB-130 (93
NLRB 281 ), cited by the Respondent , contains nothing inconsistent with the Cathey
principle . Moreover, this Intermediate Report is presently pending before the Board for
decision.
13 The contract described the categories covered as "chauffeurs, distributors , route men,
tiers, doormen , wrapper writers , relay men, and Canada men." The General Counsel and
the Respondent stated at the hearing that all the categories listed in the contract were
employed in the Respondent 's delivery department For convenience, these employees
will be collectively referred to herein as the delivery department employees.
James B. Gaynor , president of the Respondent , testified without contradiction that
chauffeurs and route men are the same as drivers , that he did not know what distributors
are, that tiers , wrapper writers , and loaders are the same as flootmen , and that the
Respondent employs no Canada men nor relay men.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 16, 1948, while the above-described contract, as extended, was in
force, the Union filed with the Board's Regional Director for the Second Region
a petition covering the Respondent's delivery department employees," seeking
authority to bargain with respect to union security.' At the Union's request,
the Regional Director approved the withdrawal of this petition on September
13, 1948.'8
Thereafter, on October 25, 1948, the Respondent and the Union entered into
a new collective bargaining contract in which the Respondent recognized the
Union as the exclusive bargaining representative of the Respondent's employees
in its delivery department 17 This contract is still in effect 18 It increased wages
beyond the previous rates, and provided for more liberal vacation benefits. It
further contained certain clauses which the General Counsel maintains violate
the Act. These clauses will be discussed below.
In November 1948, the Respondent made a retroactive wage payment to each
union member employed in the categories here involved, covering the period
from July 17 to October 25, 194818 No similar payments were made to nonunion
employees in these categories.
Sheldon A. Loner, a witness for the Respondent, testified, in effect, that he had
been employed in the Respondent's delivery department from June 1947 to
December 3, 1948. In November 1948, Loner learned from other employees who
were members of the Union that retroactive wage payments were being made to
union members. He then asked Murray Levine, the Respondent's night foreman,
"Do I get retroactive pay?" Levine replied that Loner was not entitled to
retroactive pay because he was not a member of the Union. Despite the fact
that Loner had worked during the period between July 17 and October 25, 1948,
be received no retroactive wage paynient.
As noted above, the 1946 contract provided for vacations with pay, based
upon the number of days worked in the preceding calendar year. In 1948, paid
vacations were granted to employees of the delivery department who were mem-
bers of the Union, based on the number of days worked in 1947, and calculated
according to a schedule contained in the 1946 contract. As has also been seen,
the 1948 contract provided for.more liberal vacation benefits. Starting in Janu-
ary 1949, the Respondent made payments to employees in its delivery depart-
ment who were members of the Union, based on the number of days worked
in 1947, to compensate retroactively for the difference between the vacation
schedules of the 1946 and 1948 contracts. No similar payments were made to
delivery department employees who were not members of the Union. Loner
received no vacation in 1948, and was not given any payment in lieu of vacation,
14 The unit described in the petition included all the Respondent ' s drivers , route men,
and loaders , but excluded foremen, clerical employees , guards, and professional employees.
Hence, it was substantially the same as the unit covered in the contract . See footnote
13, supra.
15 Gaynor News Co., Case No. 2-UA-4273.
18 At the request of the General Counsel, I have taken judicial notice of the Board's
records in Case No. 2-UA 4273 J. S . Abercrombie Company, 83 NLRB 524, petition for
review denied, 180 F. 2d 578 (C. A. 5).
17 The unit described in the contract of October 25, 1948, is identical with that con-
tained in the 1946 contract.
18 The contract provided that it should remain in force for 90 days after "the expiration
date of the contract between the Union and the Publishers Association of New York."
The parties stipulated that the Publishers Association's contract is due to expire on
October 25, 1950.
18 This was computed as follows : The difference between the old daily rate and the new
daily rate was multiplied by the number of days worked by the employee in question be-
tween July 17 and October 25, 1948. A similar retroactive increase was computed for
overtime work on the basis of time and a half.
GAYNOR NEWS COMPANY, INC . 311
although he had worked a sufficient number of days in 1947 to have qualified
'had he been a union member."
In 1949, the Respondent granted vacations equally to its union and nonunion
employees.
C. Legality of the retroactive wage and vacation payments
In essence, the facts show that the Respondent, as charged in the complaint,
made retroactive wage payments and retroactive payments in lieu of vacation
to its delivery department employees who were members of the Union, but failed
and refused to make similar payments to nonunion delivery department em-
ployees who were otherwise eligible. The sole factor in determining whether
or not a particular employee received these payments was his membership or
nonmembership in the Union. Leon Asche, manager of the Respondent's book-
keeping department, testified as follows :
Trial Examiner ASHER. Mr. Asche, you have testified that certain pay-
ments were made to union men only. How did you know which men were
union and which men were not in order to determine whether to make pay-
ments to them or not?
WITNESS. I was told through Mr. Gaynor.
Trial Examiner ASHER. Did Mr. Gaynor supply you with a list?
The WITNESS. With a record, not with a list. We were supplied with
employees' record cards which are marked union if they are union.
Trial Examiner ASHER. Do you have such a record card for each employee
on the payroll?
The WITNESS. That's right.
Trial Examiner ASHER. And opposite each employee's name on these cards
is shown whether or not he is a union member?
The WITNESS. That is the only way I know of, who are members and who
are not.
Trial Examiner ASHER. You have seen those cards?
The WITNESS. Yes.
Trial Examiner ASHER. And you used those cards as a guide?
The WITNESS. Right.
Under strikingly similar facts, the Board has held that the granting of retro-
active wage payments to employees who were union members, while failing and
refusing to grant such payments to employees who were not union members,
constitutes a violation of Section 8 (a) (1) and (3) of the Act.u
The Respondent contends that the retroactive wage payments and vacation
benefits were paid under the compulsion of a legally binding contract, and there-
fore cannot be held violative of the Act. It argues : "The employer in this case
has been guilty only of the time-honored business practice of not spending
-money which he is not obliged to spend." In support of this contention, James
B. Gaynor, the Respondent's president, testified without contradiction that he
ordered retroactive wage payments and vacation benefits withheld from nonunion
-employees because he believed that the 1946 contract and its supplement required
such payments to be made to union members only. The short answer to this
argument is that neither the 1946 contract nor its supplement of August 22, 1946,
2° The facts contained in this paragraph are based primarily on the admissions in the
Respondent's and the Union's answers, and the testimony of Leon Asche, manager of the
Respondent's bookkeeping department.
21 Reliable Newspaper Delivery, Inc, 88 NLRB 659.
a
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required these retroactive payments to be made to any employees? Indeed, the
Respondent's counsel, referring to the retroactive vacation benefits, frankly
admitted that these payments were granted voluntarily, and not as the result of
any contractual obligation. The statement of the Respondent's counsel on this
point was as follows :
Because of the fact that it had been established as general practice in other
branches of the industry, and despite the fact that under the contract we
were not obligated to give our employees a third week of retroactive vaca-
tion, in the interests of good labor relations and to maintain peace with the
Union, and not to have a different standard apply throughout the industry,
we voluntarily gi anted those of our employees who were with us a third
week's vacation." [Emphasis supplied.]
It is therefore abundantly clear that the Respondent was not "acting in good
faith in accordance with the terms of its agreement," as alleged in the Respond-
ent's brief, at least insofar as the vacation benefits were concerned. But even
assuming, for the purpose of argument, that the 1946 contract required these
retroactive payments to union members, and assuming the validity of that con-
tract,23 the Respondent can derive no comfort therefrom, as it is clear that noth-
ing in the contract prohibited equal payments to nonunion employees.24 Thus,
even-handed treatment of the nonunion employees would not have amounted to
a contract violation. And the gist of the discrimination with which the Respond-
ent is charged is not the granting of retroactive payments to the union employees,
but rather the disparate treatment accorded the nonunion men.
The Respondent further contends that the closed-shop provisions of the 1946
contract were valid under the proviso to Section 8 (3) of the Wagner Act,25 that
the nonunion employees could therefore have been legally discharged during the
life of that contract, and that their wages could accordingly have differed from
those of the union employees. This contention lacks merit. The proviso to
Section 8 (3) of the Wagner Act, like its counterpart in Section 8 (a) (3) of
the amended Act, permitted the conditioning of employment, under certain cir-
cumstances, upon membership in a particular labor organization ; it did not per-
mit disparate wage treatment of employees on the basis of union affiliation?"
The Respondent's argument that "There is no difference between discrimination,
by means of an illegal discharge and discrimination by means of disparate pay-
ments of wage and vacation benefits" is therefore rejected.
The Respondent further maintains that no law requires it to pay equal pay
for equal work. This overlooks Section 8 (a) (1) of the Act, which prohibits in-
22 The Respondent's brief states : "In October, 1947, a rider was attached to the 1946
contract to the effect that the wage rate of the new contract to be drawn in October,
1948, would be retroactive to a certain date in 1948, that date being the date the Union
and the Publishers' Association signed their contract In conformance with the terms
of the January 2, 1946 contract, . . . this rider applied only to Union members like
all other provisions of that 1946 contract " The record, however, does not show the
execution of any October 1947 rider.
23 The Respondent takes the position that the 1946 contract, executed before the enact-
ment of the Labor Management Relations Act of 1947, is valid The General Counsel,
arguing orally before the Trial Examiner at the' hearing, pointed out that the January
1946 agreement and its supplement were "members only" contracts, and maintained that
they therefore provided for an inappropriate unit In view of my disposition of the
Respondent's defense based on the 1946 contract, I do not express any opinion as to the
contract's validity.
21 Reliable Newspaper Delivery, Inc., supra (footnote 1 therein).
25 This proviso read : "Nothing in this Act . . . shall preclude an employer from
making an agreement with a labor organization . . . to require as a condition of employ-
ment membership therein."
26 Reliable Newspaper Delivery, Inc, supra (footnote 1 therein).
GAYNOR NEWS COMPANY, INC. 313
terference with the employees ' selection of bargaining agent , Section 8 ( a) (2),
which prohibits illegal assistance to a labor organization, and Section 8 (a) (3),
which prohibits discrimination to encourage or discourage membership in a labor
organization . If the unequal pay interfered with the employees ' freedom of choice
of bargaining representative , lent illegal support to the Union , or encouraged
membership in the Union , it was proscribed by the Act.
The Respondent offered to prove that Loner , the charging party herein, made
the Board his tool in his attempt to obtain membership in the Union . In addi-
tion, the Respondent points to the fact that the Union was not joined as a party
respondent . But the motives of the charging party, "however evil or unlawful,"
are immaterial27 Nor may I properly concern myself with speculations as to
why the Union was not joined as a respondent . The sole question before me
is the truth of the accusations of unfair labor practices contained in the com-
plaint.
As tending to establish that the granting of retroactive wage increases and
vacation benefits to union employees alone did not encourage membership in the
Union, the Respondent offered to show that the nonunion employees were "try-
ing every device known " to become members of the Union. It contended that, as
their selection of bargainin g agent had already been made , "encouragement of
and interference therewith was no longer possible ." In support of this contention,
the Respondent sought to produce evidence that Loner had obtained his job
with the Respondent through union intercession , and that before the retroactive
payments were made , he had applied for membership in the Union and that his
application was still pending. This proffered testimony was excluded, in ac-
cordance with the well -settled principle that the actual effect of the Respondent's
conduct upon its employees ' state of mind is immaterial 28 Accordingly , testimony
inquiring into Loner 's state of mind , or that of any other employee , is incompetent.
The Respondent also contends that the General Counsel is required to produce
proof of both the purpose and effect of the Respondent ' s conduct , and that he has
failed to adduce any proof of illegal purpose An identical contention was con-
sidered and rejected in the Reliable case2° For reasons -set forth in that case,
I find no merit in this contention.
Finally, the Respondent vigorously contends that the record is barren of any
evidence that the discriminatory treatment of nonunion employees encouraged
them to join the Union However, it was not incumbent upon the General Coun-
sel to prove that any nonunion employees were, in fact , encouraged . The test
of the Respondent 's violation of the Act turns on whether or not it has engaged
in conduct which , it may reasonably be said , tends to interfere with the free ex-
ercise of employee rights under the Act2° It is obvious that the discrimination
with respect to retroactive wages and vacation benefits had the natural and
probable effect not only of encouraging nonunion employees to join the Union, but
also of encouraging union employees to retain their union membership 31 I so find.
I find that , by granting retroactive wage payments in or about November 1948,
and by paying retroactive vacation benefits beginning in or about January 1949,
27 N. L. R. B. v. Fulton Bag it Cotton Mills, 180 F 2d 68 (C. A 10).
28 The Red Rock Company, et al, 84 NLRB 521, 525 ; and Forest Oil Corporation,
85 NLRB 85, 86.
29 Reliable Newspaper Delivery, Inc, supra (footnote 9 of the Intermediate Report).
3°N. L. R. B. v. Illinois Tool Works Company, 153 F. 2d 811, 814 (C. A. 7) , and
N L R B v Ford Brothers, 170 F. 2d 735 (C A. 6).
n The General Counsel also urges that the disparate treatment discouraged membership
in any potential or existing rival labor organization. However, the complaint alleges
only the encouragement of membership in the Union, and is silent as to discouragement.
Accordingly, I deem it unnecessary to decide whether or not the Respondent' s acts con-
stitutei3 discouragement of membership in any other labor organization.
314 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
to certain of its employees who were members of the Union, while failing and
refusing to make such payments to its nonunion employees who were similarly
situated, because they were not members of the Union, the Respondent has dis-
criminated in regard to the terms and conditions of employment of the said non-
union employees, thereby encouraging membership in the Union, in violation of
Section 8 (a) (3) of the Act, and thereby interfering with, restraining, and co-
ercing its employees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8 (a) (1) of the Act. I further find that, by the said
conduct, the Respondent has contributed illegal assistance and support to the
Union, in violation of Section 8 (a) (2) of the Act. Accordingly, the Respondent's
various motions to dismiss the complaint are hereby denied.
D. Legality of the contract of October 25, 1948
The General Counsel maintains that two clauses in the contract of October 25,
1948, between the Respondent and the Union, are illegal. One of the clauses
under attack by the General Counsel reads as follows :
2-b. The Employer agrees to employ only members of the Union thirty
days following the effective date of this agreement, it being understood
that any new employees employed after the effective date of this agreement
as a regular situation holder be required to become members of the Union
thirty days following the beginning of employment.
This contract, having been executed after the effective date of the Labor
Management Relations Act of 1947, is subject to the restrictions imposed by
amendments contained therein. In order to determine the legality or illegality
of the above-quoted clause, it is therefore necessary to examine the statutory
requirements of the Act, as amended, with respect to contracts providing for
union security. Section 9 (e) of the Act, as amended, provides for Board-
conducted elections and certifications of authority to bargain with respect to
union security. Section 8 (a) (3) of the Act, as amended, in-effect prohibits
discrimination with respect to the hire or tenure of employment to encourage
or discourage membership in any labor organization, and contains the follow-
ing proviso;
.. . nothing in this Act . .. shall preclude an employer from making an
agreement with a labor organization . .. to require as a condition of employ-
ment membership therein on or after the thirtieth day following the begin-
ning of such employment or the effective date of such agreement, whichever
is the later, .. . if, following the most recent election held as provided
in section 9 (e) the Board shall have certified that at least a majority of
the employees eligible to vote in such election have voted to authorize such
labor organization to make such an agreement . . . [Emphasis supplied.]
Thus, an election under Section 9 (e) and a resulting Board certificate are
ordinarily prerequisites to the execution of a valid union-security provision.
Pointing out that the record does not show that the Union had received any
such certificate from the Board prior to the execution of the contract, the
General Counsel maintains that section 2-b of the contract does not fall within
the proviso to Section 8 (a) (3) of the Act, as amended. Unquestionably, as
the General Counsel contends, the record fails to show that the Board certified
the Union's authority to bargain with respect to union security, prior to the
GAYNOR NEWS COMPANY, INC . 315
execution of the contract.' Section 2-b of the contract therefore clearly violated
the statutory requirements. The mere existence of such a provision acts as a
restraint upon those desiring to refrain from union activities within the mean-
ing of Section 7 of the Act 33 Moreover, by assenting to an unlawful union-
security clause, the Respondent lent its support to the Union in recruiting and
maintaining its membership. By entering into such a contract, and by keeping
it in full force and effect, the Respondent has therefore violated Section 8 (a)
(1) and (2) of the Act 84
The Respondent and the Union maintain, however, that section 17 of the
contract defers the application of the union-shop provision until after the Union
has been authorized by the Board to bargain with respect to union security, and
therefore saves the contract from illegality. I do not agree. Section 17 of the
contract, relied upon by the Union and the Respondent, reads in pertinent part
as follows:
To the best knowledge and belief of the parties this contract now contains
no provision which is contrary to federal or state law or regulation. Should,
however, any provision of this agreement, at any time during its life, be in
conflict with federal or state law or regulation then such provision shall con-
tinue in effect only to the extent permitted. In the event of any provision
of this agreement thus being held inoperative, the remaining provisions of
the agreement shall, nevertheless, remain in full force and effect.
It is true that the Board has held that a contract which contains a clause that
its union-security provisions should not become effective until after it has been
authorized by an election is clearly lawful.35 On the other hand, where the effect
of a saving clause, attached to an unauthorized union-security provision, is not
to defer the application of that provision, but merely to postpone the issue of
its legality for future determination by some proper tribunal, the contract in
which the clause appears is illegal.98 Section 17 of the instant contract falls
within the latter rule. In the absence of a specific clause expressly deferring
application of the union-shop provision, I believe that this clause can only be
construed to mean that unless and until a tribunal authorized to interpret and
administer the law determines that a particular discharge for nonmembership
33 It will be recalled that the Union's answer alleged that the Union had filed a petition
for authority to bargain with respect to union security and that the Regional Director
had arbitrarily refused to process this petition. The record fails to substantiate this
allegation. Indeed, the only such petition filed before the execution of the contract was
withdrawn at the Union's request. After the execution of the contract on January 11,
1949, the Union filed another petition with respect to union security (Case No. 2-UA-4890).
This petition, which covered employees of members of the Suburban Wholesalers Associa-
tion, Inc, including the Respondent, is still pending. On December 19, 1949, the Union
filed a third similar petition with respect to the Respondent's delivery department em-
ployees (Case No. 2-UA-5448). At the Respondent's request, this petition Was withdrawn
on January 4, 1950. Thus, no election for union security has been held, and no Board
certificate issued.
33 C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163.
34 Julius Resnick, Inc, 86 NLRB 38, and Salant & Salant, incorporated, 87 NLRB 215.
The Respondent's attorney described the relationship between the Respondent and the
Union as follows. "We fight like cats and dogs. We negotiate at arm's length. We are
'hostile to one another." Assuming without deciding, that the record indicated that
hostility existed between the Respondent and the Union, such fact is not inconsistent
with a finding that the Respondent, by entering into a contract containing illegal. union-
security provisions, contributed unlawful support and assistance to the Union.
35 Schaefer Body, Inc., 85 NLRB 195, and Wyckoff Steel Company, 86 NLRB 1318.
33 Lykens Hosiery Mills, Inc, 82 NLRB 981; Unique Art Manufacturing Go, 83 NLRB
1250; and Aluminum Ore Company, 85 NLRB 121 (footnote 7 therein).
316 DECISIONS OI NATIONAL LABOR RELATIONS BOARD
in the Union is unlawful, the union-security provisions of the contract are fully
effective 37 Accordingly, section 17 of the contract does not save the union-
security clause from illegality."
The second clause under attack by the General Counsel concerns the powers
of an adjustment board established by the parties for the settlement of grievances.
'This clause, section 18-k, reads as follows : '
18-k. A majority of the Adjustment Board shall have the power to make
all appropriate findings, decisions and awards in any and all matters sub-
mitted to it pursuant to the provisions thereof, and in any such matter to
take or to direct the taking of any action which it may deem necessary or
proper to make effective the provisions and intent hereof to safeguard the
rights of the several parties hereto which shall include the power to order
reinstatement of any member of the Union, found to have been improperly
discharged or discriminated against with or without back pay . . . [Em-
phasis supplied.]
The General Counsel contends that the above-quoted section of the contract
grants a preference to members of the Union. I cannot agree As I read sec-
tion 18-k, it cloaks the adjustment board with authority "to take or direct the
taking of any action which it may deem necessary or proper to make effective
the provisions and intent thereof . . . which shall include the power to order
reinstatement of any member of the Union found to have been improperly dis-
charged or discriminated against." Thus, the first part of the section confers
broad powers upon the adjustment board. The latter part, which refers spe-
cifically to union members, is only inclusive. Hence there is nothing in section
18-k which requires unequal treatment of nonunion members. Accordingly, I
find no merit in the contention of the General Counsel that section 18-k of the
contract contains an illegal preference in favor of union members.
I find that, by entering into an agreement with the Union on October 25, 1948,
which contained illegal union-security provisions in section 2-b thereof, and by
continuing the said contract in full force and effect, the Respondent has im-
posed a restraint upon those of its employees who desired to refrain from union
activities within the meaning of Section 7 of the Act, as amended, and has
thereby violated Section 8 (a) (1) of the Act I further find that, by the said
acts, the Respondent has lent its support to the Union in recruiting and main-
taining its membership and has coerced its employees to become and remain
members of the Union, thereby violating Section 8 (a) (2) of the Act 39 Accord-
37 Reading Hardware Corporation, 85 NLRB 610; and Evans Milling Company, 85 NLRB
391 The Respondent's brief states : "The parties further agreed that in conformance
with the provisions of the Taft-Hartley Act, it union shop election would be held as soon
as was practicable" The record does not support this statement. However, even if such
an arrangement had been made, it would not aid the Respondent In order to eradicate
the restraint imposed upon the employees by the unauthorized union-shop provision, the
deferring of its effectiveness until a Board certification has been secured must be in
writing, signed by both contracting parties, and called to the attention of the employees.
Evans Milling Company, sups a , Flint Lumber Company, 85 NLRB 943; Roosevelt Oil
and Refining Corporation, 85 NLRB 965, and Empire Zinc Division, The New Jersey Zinc
Company, 86 NLRB 685
33 The Respondent intimates that it was compelled to enter into this contract by virtue
of the Union's superior economic power. However, it has long been established law that
economic necessity is no defense for the commission of unfair labor practices. N. L R B v.
Star Publishing Co, 97 F. 2d 465, 470 (C A 9) ; N L R B. v. Gluck Brewing Company,
et al, 144 F. 2d 847, 853 (C A. 8), and cases cited therein, and H. M. Newman, 85 NLRB
725 (footnote 13 of the Intermediate Report)
3e While the complaint also alleged the execution and continuation of the contract as a
violation of Section 8 (a) (3) of the Act, I find it unnecessary to pass upon this issue.
Whether predicated upon a violation of Section 8 (a) (1), or of Section 8 (a) (3), or
GAYNOR NEWS COMPANY, INC. 317
ingly, I hereby deny the motion of the Union and the motions of the Respondent
that the complaint be dismissed 90
E. Alleged additional interference, restraint, and coercion
It' will be recalled that in November 1948, Murray Levine, the Respondent's
night foreman, told Loner that Loner did not receive retroactive pay because he
was not a member of the Union. The General Counsel suggested that this con-
duct on the part of one of the Respondent's supervisors might possibly have con-
stituted an independent instance of interference, restraint, and coercion of the
rights of employees guaranteed by Section 7 of the Act. However, the complaint
does not mention this statement by Levine, nor does it allege any separate in-
stances of coercion other than those discussed above. Accordingly, I find it
unnecessary to decide whether or not Levine's statement constituted an addi-
tional violation of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I will recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the purposes and policies of the Act.
It has been found that the Respondent violated Section 8 (a) (1), (2), and
(3) of the Act by paying retroactive wages and vacation benefits to employees
of its delivery department who were members of the Union, while failing and
refusing to make similar retroactive payments to employees of its delivery
department who were not members of the Union. It will therefore be recom-
mended that the Respondent cease and desist from encouraging membership in
the Union or any other labor organization of its employees by discriminating
with respect to any term or condition of their employment. It will further be
recommended that the Respondent make whole Sheldon A. Loner, and all other
nonunion employees who were similarly situated,41 for any loss of pay they may
have suffered by reason of the Respondent's failure and refusal to pay them
retroactive wages for the period from about July 17 to about October 25, 1948,
in the same manner as paid by the Respondent to its union employees, and
also for any loss of pay they may have suffered by reason of the Respondent's
failure and refusal to pay them retroactive vacation benefits for the =calendar
year 1947, in the same manner as paid by the Respondent to its union employees.
both, the remedy hereinatter recommended is necessary in order to effectuate the policies
of the Act See footnote 2 in Smith Victory Corporation, 90 NLRB 2089 , Columbia Pic-
tures Corporation, eet at, 82 NLRB 568, 576.
40 The Respondent also moved to dismiss the complaint with respect to the contract on
the ground that there was a fatal variance between the allegation of the complaint and
the proof This motion was apparently based on the theory that section 17 of the con-
tract showed on its face that the contract was not illegal. In view of ray findings, above,
this motion is without merit and is hereby denied. v
41 Reliable Newspaper Delivery, Inc, supra; and Somerset Classics, Inc, et at, 90 NLRB
1676.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has further been found that the Respondent violated Section 8 ( a) (1) and
(2) of the Act by executing and continuing in full force and effect the illegal
union-security clause in its contract with the Union of October 25, 1948. The
effect of such violation was to coerce its employees into becoming and remaining
members of the Union , a vice which Section 8 (a) (3) and Section 9 (e) were
intended to avoid. Accordingly , I shall recommend that the Respondent cease
and desist from giving effect to the illegal union-security clause.42 I am also
persuaded that the effect of the coercive conduct would not be eradicated were
the Union to be permitted to continue to enjoy a representative status strength-
ened by virtue of the illegal contract and the discriminatory payments mentioned
above. Therefore , in order to effectuate the purposes and policies of the Act, I
shall recommend that the Respondent withdraw recognition from the Union and
cease giving effect to its contract of October 25, 1948, with that organization,
or to any modification , extension , supplement , or renewal thereof, unless and
until the Union has been certified by the Board. Nothing contained herein shall,
however, be deemed to require the Respondent to vary or abandon those wage,
hour, seniority , or other substantive features of its relations with its employees,
established in the performance of the said contract , or to prejudice the assertion
by the employees of any rights they may have under the said agreement.
In order to insure expeditious compliance with the recommended back-pay
order, I shall recommend that the Respondent , upon reasonable request, make
any pertinent records available to the Board and its agents.93
In my opinion , the execution and continuation in full force and effect of the
illegal union -security clause contained in the contract of October 25, 1948, was
a flagrant attempt by the Respondent to avoid its statutory obligations. Such
contract clauses clearly constitute violations of the letter and the spirit of the
Act, as amended . I therefore find that the unfair labor practices found are
persuasively related to other unfair labor practices proscribed , and that danger
of their commission in the future is to be anticipated from the course of the
Respondent 's conduct in the past " The preventative purposes of the Act will
be thwarted unless the order is coextensive with the threat . In order, therefore,
to make effective the interdependent guarantees of Section 7, to prevent a re-
currence of unfair labor practices , and thereby to minimize industrial strife
which burdens and obstructs commerce , and thus effectuates the policies of the
Act, I will recommend that the Respondent cease and desist from in any manner
infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , I make the following :
CONCLUSIONS OF LAW
1. Newspaper and Mail Deliverers ' Union 'of New York and Vicinity is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the terms and conditions of employment
of Sheldon A. Loner, and of other nonunion employees similarly situated , thereby
encouraging membership in Newspaper and Mail Deliverers ' Union of New York
42 The Respondent argues that "an order requiring Respondent to cease and desist from
giving effect to Section 2-b of the contract would create industrial disorder on a scale
previously unknown in the industry " In the last analysis , the Respondent ' s contention
is that it will be subjected to great hardship . Such an argument should be addressed
to the Congress rather than to the Board or the Trial Examiner . Compare N L. R. B. v.
.Star Publishing Co , 97 F. 2d 465 , 470 (C. A. 9).
43 F. W. Woolworth Company, 90 NLRB 289
44 N. L. R. B . v. Express Publishing Co , 312 U. S. 426.
MISSOURI BOILER AND SHEET IRON WORKS 319
and Vicinity , the Respondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8 ( a) (3) of the Act.
-3. By the said acts, thereby contributing illegal assistance and support to
Newspaper and Mail Deliverers ' Union of New York and Vicinity , the Respondent
has engaged in, and is engaging in, unfair labor practices within the meaning of
Section 8 ( a) (2) of the Act. -
4. By executing and continuing in full force and effect its contract of October
25, 1948, with Newspaper and Mail Deliverers ' Union of New York and Vicinity,
thereby contributing assistance and support to the said labor organization
through the illegal provisions of the said contract , the Respondent has engaged
in, and is engaging in, unfair labor practices within the meaning of Section 8
(a) (2) of the Act.
5. By the said acts, the Respondent has interfered with, restrained , and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has thereby engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]
MISSOURI BOILER AND SHEET IRON WORKS and J. E. RUssoM
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 474, AFL
and J. E. RUSSOM. Cases Nos. 10-CA-816 and 10-CB-58.
February 16,1951
Decision and Order
On October 13, 1950, Trial Examiner George A. Downing issued
his Intermediate Report finding, as is set forth more fully in the copy
of the Report attached hereto, that neither of the Respondents had
engaged in the unfair labor practices with which each was respec-
tively charged in the complaint, and recommending that the complaint
be dismissed in its entirety. Thereafter, the General Counsel filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications.
The General Counsel's exceptions go only to the Trial Examiner's
dismissal of the 8 (a) (3) and (1) allegations of the complaint. It
I 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 [ Chairman Herzog and
Members Reynolds and Murdock].
93 NLRB No. 21.