Los Angeles Mailers Union No. 9, I.T.U.

National Labor Relations Board - Board Decisions

Feb 20, 1962

135 N.L.R.B. 1132 (N.L.R.B. 1962)

1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board , and in order to effectuate the policies of the National Labor Relations
Act, as amended , we hereby notify our employees that:
WE WILL make Thomas Isom whole for pay lost because of the discrimination
against him.
WE WILL offer to Vincent Ranieri immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority
or other rights and privileges and make him whole for any loss of pay suffered
as a result of the discrimination against him.
WE WILL NOT discourage membership in Local 222 , International Ladies'
Garment Workers ' Union , AFL-CIO, or any other labor organization, by dis-
criminating in respect to the hire , tenure, or other conditions of employment of
any employee.
WE WILL NOT interrogate our employees as to their membership in, or activi-
ties on behalf of, Local 222, International Ladies' Garment Workers ' Union,
AFL-CIO, or any other labor organization , in a manner constituting inter-
fert nce , restraint , or coercion in violation of Section 8(a)(1) of the Act.
WE WILL NOT threaten our employees with reprisals because of their union
activities or promise benefits if they will abandon the Union.
WE WILL NOT make or threaten to make more stringent rules and regula-
tions governing employee conduct because employees engage in union activities.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of the rights guaranteed them by the National Labor
Relations Act.
AMERICAN LACE MILLS, INC.,
Dated------------------- By---------------------------
Employer.
----------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Los Angeles Mailers Union No. 9, I.T.U. and Hillbro Newspaper
Printing Company, Division of Hearst Publishing Company,
Inc. Case No. 21-CC-386. February 20, 1962
DECISION AND ORDER
On January 17, 1961, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
and recommending that the complaint be dismissed in its entirety, as
set forth in the Intermediate Report attached hereto. Thereafter,
the General Counsel and the Respondent filed exceptions to the Inter-
mediate Report and briefs in support thereof. •
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in this case, and finds merit in the exceptions of the General Counsel.
We therefore adopt the findings, conclusions, and recommendations
135 NLRB No. 107.
LOS ANGELES MAILERS UNION NO . 9, I.T.U . 1133
of the Trial Examiner only insofar as they are consistent with this
Decision and Order.
The facts, regarding which there is no basic dispute, are set forth
fully in the Intermediate Report. Briefly, in December 1959, the
Respondent and Hillbro Newspaper Printing Company Division of
Hearst Publishing Company, Inc., hereinafter referred to as Hillbro,
entered into a collective-bargaining agreement. Section 8 of that
agreement provided as follows :
The Employer shall not require employees covered by this agree-
ment, and the union reserves the employees' right, to refuse to
process material received from, or destined for, job shops or
newspaper mailing rooms (other than the mailing room of the
Employers signatory to this contract), in which an authorized
strike by, or a lockout of, a subordinate union of the International
Typographical Union is in progress. The union will give the
Employer forty-eight (48) hours' notice that a strike or lockout
is in progress before the processing of materials may be stopped
in accordance with the foregoing provisions.
On or about September 1, 1960, Hillbro entered into a contract with,
Pacific Neo Gravure, Division of the Cuneo Press, Inc., hereinafter
referred to as Pacific. Under this contract, Pacific was to print and
deliver to Hillbro, which publishes the Los Angeles Examiner, a
weekly television booklet to be included as a supplement to the Sunday
edition of the Examiner. The Respondent, which represents Pacific's
mailroom employees, became involved in a labor dispute with Pacific
over the question v hether Pacific should assign certain work to mem-
bers of the Respondent. or to members of another union. On Septem-
ber 2, 1960, Mathiesen, the president and business manager of the
Respondent, told Hillbro's representative that the Examiner could be
"heading for trouble" because Pacific was assigning the disputed work
to members of another union. Mathiesen also said that, if Pacific per-
sisted in assigning the work to the members of another union, the
Respondent would consider itself "locked out" by Pacific and section 8
of Hillbro's contract with the Respondent would become operative, in
which case members of the Respondent could refuse to handle the
television supplement for Hillbro. On September 9, 1960, Hillbro
informed the Respondent that, in Hillbro's opinion, section 8 of their
contract was unlawful under Section 8(e) of the Act; that, if the'
Respondent took any action under section 8 of their contract, it would
violate Section 8(b) (4) of the Act; and that, if the Respondent' pre-
vented the Examiner -from distributing the television supplement,
Hillbro would sustain damage "running into hundreds of thousands
of dollars." On September 12, 1960, the Respondent gave Hillbro
formal notice under, section, 8 'of the contract that a strike or lockout
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was in progress at Pacific. In a • subsequent conversation with Hill,
bro's representative, Mathiesen indicated that the Respondent `had
been advised by its attorney that section 8 of the contract was lawful.
,The complaint alleges that, by the above-described conducti the
Respondent threatened, coerced, and restrained Hillbro, with an ob-
ject of requiring Hilibro to enter into an agreement prohibited by
Section 8(e), and thus violated Section 8(b) (4) (ii) (A) of the Act.',
The Trial Examiner assumed that the Respondent's above-described
conduct constituted threats, restraint, and coercion within the meaning
of subsection (ii) of Section 8(b) (4). He found that section 8 of
the contract between Hillbro and the Respondent was a hot cargo,
clause, prohibited by Section 8 (e) of the Act. However, relying on
the fact that Hillbro and the Respondent already had entered into a
contract containing a hot cargo clause, a clause which the Respondent
considered lawful and sought to enforce, the Trial. Examiner con-
cluded that the Respondent did not seek to require Hillbro 'to enter
into a new hot cargo agreement. Accordingly, he found that an object
of Respondent's conduct was not to force Hillbro "to enter into any
agreement" within the meaning of subsection (A) of Section 8 (b) (4) 2
The Respondent excepted to the Trial Examiner's finding that section
8 of the contract was unlawful under Section 8(e) of the Act, and
the General Counsel excepted to the Trial Examiner's recommendation
that the complaint be dismissed.
We agree with the Trial Examiner that section 8 in the contract
between the Respondent and Hillbro was unlawful under Section
8(e) of the Act.' We further find that, by stating that Hillbro was
"heading for trouble" because of the dispute at Pacific and by stating
that, if Pacific did not assign the disputed work to members of the-
Respondent section 8 of the contract between Hilibro and the Re-
spondent would become operative and the Respondent's members
could refuse to handle the television supplements for Hillbro, the
Respondent threatened, restrained, and coerced Hillbro, a person
I Section 8(b) (4) provides in relevant part: "It shall be an unfair labor practice for a
labor organization or its agents- . . (ii) to threaten, coerce, or restrain any per-
son . . where . . . an object thereof is: (A) forcing or requiring any employer . . . to
enter into any agreement which is prohibited by section 8(e)." Section 8(e) makes it
unlawful for a union and an employer "to enter into any contract or agreement, express
or implied,^whereby such employer ceases or refrains or agrees to cease or refrain from,
handling, using, selling, transporting or otherwise dealing in any of the products of any-
other employer, or to cease doing business with any other person, and any contract or
agreement entered into heretofore or hereafter containing such an agreement shall be to,
such extent unenforcible and void "
2 The Trial Examiner suggested that the Respondent's conduct may have been for any
object which would be unlawful under subsection (B) of Section 8(b)(4), namely,
"forcing or requiring any person . . . to cease doing business with any other person"
However, he made no such finding in view of the fact that the complaint did not allege
that the Respondent's conduct was for an object proscribed by subsection (B).
3Amalgai(sated Lithographers of America at at (Employing Lithographers of Greater,
Miami, Florida, and Miami Post Company), 130 NLRB 968; Amalgamated Lithographer*
of America et at . (The Employing Lithographers, a Division of Graphio Arta Employers.
As800iatson at al. ), 130 NLRB 985.
LOS ANGELES MAILERS UNION NO. 9, I.T.U. 1135
engaged in commerce, within the meaning of subsection (ii) of Sec-
tion 8(b) (4). However, unlike the Trial Examiner, we fuid that an
object of the Respondent's conduct was to require Hillbro to enter
into an agreement prohibited by Section 8(e), within the meaning of
subsection (A) of Section 8 (b) (4), for the reasons indicated below.
The language of Section 8(e) of the Act as well as its legislative
history indicates that Congress was intent upon absolutely banning all
forms of hot cargo consensual arrangements.' Thus, Section 8 (e)
makes hot cargo contracts entered into before or after the passage of
the Landrum-Griffin Act "unenforcible and void" and makes it un-
lawful for a labor organization and an employer "to enter into" an
agreement `-express or implied" whereby the employer actually
ceases to handle the products of another employer, or agrees not to
handle such products in the future. Also, in Section 8(b) (4) (A)
Congress made it an unfair labor practice for a 1-mion to pressure an
employer "to enter into any agreement which is prohibited by section
8(e)." Moreover, the legislative history indicates that Congress m -
tended "to close the Sand Door loophole" 5 by, inter alia, making it.
unlawful for a labor organization successfully to persuade an employer
"to live up to" a hot cargo agreement. We note particularly in
this connection the following statement by Senator (now President)
Kennedy and Representative Thompson in their joint analysis of the
Landrum-Griffin bill.6 After referring to the Supreme Court's hold-
ing in Sand Door, they said :
Unfortunately there are a good many cases in which the Team-
sters, without any inducement of employees, is often able to
persuade the secondary employer not to carry the goods and not
to require his employees to handle them. It is very hard for the
trucking firm either to resist the Teamsters' demand for a hot
cargo clause in collective bargaining, when the price of resistance
would undoubtedly be a strike for still higher wages, or to refuse
to live up to the contract when he has signed it, when the cost of
noncompliance would undoubtedly be the Teamsters' insistence
that the contract had been terminated by the violation, thus free-
ing the union to present new demands in collective bargaining
.. . [From] the standpoint of the primary employer it makes no
difference whether the goods will not be trucked by a common
carrier because the Teamsters' Union induces the common car-
4 See, e.g , Legislative History of the Labor-Management Reporting and Disclosure Act
of 1959, pp . 1581, 1708, 1717, 1829, 1857, Amalgamated Lithographers of Antes ica et at
(Employing Lithographers of Greater Miami, Florida , and Miami. Post Company ), supra,
130 NLRB 968
6 Mary Feifer, d/b/a American Feed Company , 133 NLRB 214; Local 11976, United
Brotherhood of Carpenters and Joiners of America, AFL, et at (Sand Door & Plywood'
Co.), 357 U S 93
6 Legislative History, supra, at p. 1708.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rier's employees to refuse to handle them or because the carrier
voluntarily lives up to the hot cargo contract because he dares
not challenge the Teamsters Union. The injury to the public is
the same .... [Emphasis supplied.]
In the light of the manifest congressional intent, we do not believe
that the words "to enter into" as used in Section 8 (e) and 8 (b) (4)
(A) were intended to have the restrictive meaning of similar phrases
in, for example, contract or real property law.' In determining the
meaning of words used in a statute we must look "to the language of
the statute, read in the light of its purpose and its legislative his-
tory...." s To give the cited phrase the narrow meaning urged
by the Examiner would, to a considerable extent, defeat the congres-
sional intent to ban all forms of existing hot cargo arrangements.
For example, if an employer and a union agreed orally or in writing
to a hot cargo arrangement during the 6 months preceding the filing
of an unfair labor practice charge,' they would clearly violate Sec-
tion 8(e). On the other hand, under the holding of the Trial Ex-
aminer, if during the relevant 6-month period the contracting parties
only reaffirmed the continued validity of a hot cargo arrangement
executed more than 6 months previously, as when a union persuades
the employer to live up to such arrangement,"' there would be no
violation of Section 8(e). It would seem that, from the standpoint
of the public policy evidenced in the statute and the legislative
history, a reaffirmation of an old hot cargo clause or the execution of
a new hot cargo clause is equally bad. There is no legislative history
to which we have been referred which indicates that Congress in-
tended disparate treatment for substantially identical conduct.
It may be conceded, as the dissent avers, that the Respondent's
threats of trouble to compel Hillbro to adhere to its hot cargo agree-
ment and to cease doing business with Pacific was a violation of Sec-
tion 8(b) (4) (B), whereas the charge filed and the complaint
allegation based thereon is only that Respondent by such conduct
violated Section 8(b) (4) (A). But this is not a compelling reason,
as the dissent argues, to reject the interpretation we give to Section
8(b)_(4) (A). There are many examples of conduct which violate
more than one section of the statute."
Cf. American Feed Company, 133 NLRB 214.
s American Federation of Labor, et al. (Shipowners ' Assn of the Pacific Coast) v.
N L.R.B., 308 U.S 401, 408.
9 Section 10(b) of the Act provides: "That no complaint shall issue based upon any
11unfair labor practice occurring more than six months prior to the filing of the charge. . . .
10 Such conduct would not be unlawful under ,Section 8(b) (4) (B) because, by hypothesis,
there was no inducement of employees to strike and no threats, restraint , or coercion
against any person engaged in commerce . Under our view, however, the reaffirmation of
the existing hot cargo arrangement obtained by peaceful persuasion of the employer would
be a violation of Section 8(e).
11 See, e.g., Acousti Engineering of Alabama , Inc, 120 NLRB 212, 213; Northern Cali-
fornia Chapter , The Associated General Contractors of America, Inc., et at., 119 NLRB
1026, 1033, enfd 266 F. 2d 905, cert . denied 361 U.S. 834. -
LOS ANGELES MAILERS UNION NO. 9, I.T.U. 1137
The construction which the dissent urges in order to avoid the over-
lap of Section 8(b) (4) (A) and (B) would so narrow the meaning
of the words "to enter into" in Section 8(e) as to recreate one of the
loopholes which Congress patently intended to close. The demands
of mutual exclusiveness and symmetry in interpreting Section 8(b)
(4) do not require a construction which upsets the clear congressional
intent. Or, conversely, the broader interpretation which we here
give to the phrase to avoid such a loophole should not be rejected
simply because, in cases where there is restraint or coercion of an
employer, this creates an overlap between Section 8(b) (4) (A)
and (B).
We believe Congress sought by Section 8(e) to free the neutral
employer from the inhibitions of any prior contractual commitment
to boycott another employer. This freedom is important to the neu-
tral employer not just at the time of signing the contract and in the
6-month period following. It is important at the time of the labor
dispute in which the union seeks to apply the contract provision and
to induce the neutral employer to engage in the boycott. Only by
construing 8(e) as we do can it serve to maintain for the neutral em-
ployer, free from the restrictions of a prior contract, the "freedom of
choice at the time the question whether to boycott or not arises in a
concrete situation." 12
We hold, therefore, that the reaffirmation of an existing hot cargo
arrangement is included within the meaning of the statutory phrase
"to enter into" and is unlawful under Section 8(e), and that a union's
attempt by coercive means to obtain such reaffirmation from an em-
ployer is violative of Section 8 (b) (4) (ii) (A) .
We note that the construction of Section 8(e) which we are here
adopting is in accord with our recent decision in Automotive, Pe-
troleum & Allied Industries Employees Union, Local 618, etc.
(Greater St. Louis Automotive 7'rimmzers and Upholsterers Associa-
tion, Inc.)." In that case, the respondent union informed several
employer members of an association that, by doing business with
12 See Local 1976 , United Brotherhood of Carpenters and Joiners of America, AFL,
at at. v. NL .R.B. (Sand Door d Plywood Co ), 357 U.S 93, 105.
A frequently quoted passage from one of Mr Justice Holmes' earlier opinions may be
apt in this connection:
The Legislature has the power to decide what the policy of the law shall be, and
if it has intimated its will , however, indirectly, that will should be recognized and
obeyed The major premise of the conclusion expressed in a statute, the change of
policy that induces the enactment , may not be set out in terms , but it is not an
adequate discharge of duty'for courts to say, We see what you are driving at, but
you have not said it, and therefore, we shall go on as before. . . . Johnson v.
United States , 163 Fed 30, 32 (1st Cir. 1908)
's 134 NLRB 1363 ( Members Fanning and Brown dissenting ). See also District
No. 9, International Association of Machinists, AFL-CIO (Greater St. Louis Automotive
Trimmers and Upholsterers Association , Inc), 134 NLRB 1354 (Members Fanning and
Brown dissenting).
634449-62-vol. 135-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain other employers, they were violating a hot cargo clause in an
existing agreement between the union and the association. The
employers replied that they would comply with the hot cargo clause.
The Board concluded that, by acknowledging and reaffirming the
"current effectiveness and application" of the hot cargo clause in their
contract, the parties "entered into" a hot cargo agreement in violation
of Section 8 (e) of the Act.
In the present case, Hillbro and Respondent were involved in more
than a dispute over the application of section 8 of their collective-
bargaining contract-the hot cargo clause-to a given situation. The
fundamental disagreement between the parties was not merely as to
the application of section 8, but as to whether the section was legal
and therefore still effective under Section 8(e) of the Act: Hillbro
took the position that it had been rendered void by the Landrum-
Griffin Act; Respondent insisted that the disputed clause was still
lawful and binding upon the parties. Thus, Respondent sought to
have Hillbro reaffirm the continued effectiveness of, and to live up to,
clause 8 of the contract. As Respondent sought to accomplish this
objective by coercive means, we find that it thereby violated Section
8(b) (4) (ii) (A) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of Hillbro Newspaper Printing Company
Division of Hearst Publishing Company, Inc., as set forth in section I
of the Intermediate Report, 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.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action which the Board finds is necessary to
effectuate the policies of the Act.
Upon the basis of the foregoing and the entire record, the Board
makes the following :
CONCLUSIONS OF LAW
1. Hillbro Newspaper Printing Company Division of Hearst Pub-
lishing Company, Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Los Angeles Mailers Union No. 9, I.T.U., is a labor organization
within the meaning of Section 2(5) of the Act. '
LOS ANGELES MAILERS UNION NO. 9, I.T.U. 1139
3. By threatening, coercing, and restraining Hillbro Newspaper
Printing Company Division of Hearst Publishing Company, Inc.,
with an object of forcing or requiring the aforesaid employer to enter
into an agreement prohibited by Section 8(e), the Respondent has
engaged in unfair labor practices within the meaning of Section
8(b) (4) (ii) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this 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, Los Angeles
Mailers Union No. 9, I.T.U., its officers, agents, successors, and assigns,
shall :
1. Cease and desist from threatening, coercing , or restraining Hill-,
bro Newspaper Printing Company Division of Hearst Publishing
Company, Inc., where an object thereof is to force or require said
employer to enter into or enforce any agreement which is prohibited
by Section 8 (e) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Post in conspicuous places at the Respondent Union' s business
offices, meeting halls, and all places where notices to members are cus-
tomarily posted, copies of the notice attached hereto marked "Ap-
pendix." " Copies of said notice,,to be furnished by the Regional.
Director for the Twenty-first Region , shall, after being duly signed
by the authorized representative of the Respondent Union, be posted
by the Respondent Union immediately upon receipt thereof, and be,
maintained for a period of 60 consecutive days thereafter. Reason-
able steps shall be taken to insure that the notices are not altered, de-
faced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to'the Regional,
Director, Twenty-first Region, for posting by Hillbro Newspaper
Printing Company Division of Hearst Publishing Company, Inc.,
the Company willing, at all locations where notices to its employees,
are customarily posted.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Decision and Order,
what steps the Respondent has taken to comply herewith.
14 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBERS FANNING and BROWN, dissenting in part:
We agree with the majority that section 8 of the Hillbro-Respondent
contract was unlawful under Section 8(e). However, we cannot
agree with our colleagues that Respondent's conduct was for an ob-
ject proscribed by subsection (A) of Section 8(b) (4). We would
therefore affirm the Trial Examiner and dismiss the complaint.
The majority predicates its finding that Respondent violated Sec-
tion 8(b) (4) (ii) (A) on Respondent's attempts to enforce a then
existing hot cargo agreement with Hillbro. While such conduct may
have been for an object made unlawful by subsection (B) of Section
8(b) (4), it was not, in our view, for an object of requiring Hillbro
"to enter into any agreement" proscribed by Section 8 (e) and as these
terms appear in Section 8(b) (4) (A). Both 8(e) and 8(b) (4) (A)
speak only of "entering into" hot cargo agreements, Section 8(e)
making it unlawful to "enter into" such agreements and Section
8(b) (4) (A) forbidding unions to force or require employers to "en-
ter into" such agreements. "Entering into" an agreement is not the
same as "enforcing" an agreement, and if Congress had also intended
8(e) and 8(b) (4) (A) to cover "enforcement," we believe it would
have said so.' We might even have been persuaded otherwise, not-
withstanding the plain language of 8(e) and 8(b) (4) (A), if the
enforcement of hot cargo agreements were not made unlawful else-
where in the Act. It is clear, however, that where a union engages in
threats and coercion to enforce a hot cargo agreement, it is in effect
requiring an employer to cease doing business with another employer,
and this is conduct proscribed under subsection (B). We perceive no
justification for straining the plain language of subsection (A) to
cover conduct already covered by subsection (B).
Under appropriate circumstances we might be disposed to find a
violation of subsection (B) even where only subsection (A) is alleged.
At the present hearing, however, when it appeared that Respondent
and Hillbro were parties to an existing agreement and that Respond-
ent was purportedly attempting to enforce the agreement, the Trial
Examiner expressly advised the parties that he was limited by the
pleadings and accordingly did not have before him a question of
Respondent's conduct under Section 8(b) (4) (B). Had the General
Counsel then sought to do so, he might have amended the complaint
to encompass a subsection (B) theory. But this was not done. More
than procedural nicety is therefore involved, in our opinion, where a
complaint advisedly omits an 8(b) (4) (B) allegation and also where,
as here, the record does not disclose that Respondent was on notice
that a (B) violation was at issue and that such issue was in fact fully
litigated.
25 See Mary Feifer, d/b/a American Feed Co., 133 NLRB 214.
LOS ANGELES MAILERS UNION NO. 9, I.T.U. 1141
APPENDIX
To ALL OUR MEMBERS AND TO ALL EMPLOYEES OF HILLBRO NEWS-
PAPER PRINTING COMPANY DIVISION OF HEARST PUBLISHING Co31-
PANY, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that:
WE WILL NOT threaten, coerce, or restrain Hillbro Newspaper
Printing Company Division of Hearst Publishing Company,
Inc., where an object thereof is to force or require the aforesaid
company to enter into or enforce any agreement which is pro-
hibited by Section 8(e) of the Act.
Los ANGELES MAILERS UNION No. 9, I.T.U.,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 So. Broadway, Los Angeles,
California, Telephone Number Richmond 9-4711, Extension 1031, if
they have any question concerning this notice or compliance with its
provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard at Los Angeles, California, on October 24 and 25, 1960.
The complaint alleges that on and after September 6, 1960, Los Angeles Mailers
Union No. 9, I.T.U., herein called Respondent, had engaged in unfair: labor, practices
within the meaning of Section 8(b)-(4),(ii)(A) of the Act by threatening , coercing,
and restraining iHillbro Newspaper Printing Company Division of Hearst Publishing
Company, Inc., herein called the Company, with an object of forcing or requiring
the Company to enter into a so-called hot cargo agreement prohibited by Section
8(e) of the Act.
All parties have submitted briefs. Upon the entire record of the case , and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Hearst Publishing Company, Inc., a Delaware corporation, has a Los Angeles
'Division consisting of the Los Angeles Examiner Division, the Los Angeles Herald-
Express Division, and Hillbro Newspaper Printing Company Division. All consti-
tute a single integrated enterprise engaged at Los Angeles, California, in the produc-
tion and publication of daily and Sunday newspapers known as the Los Angeles
Examiner and the Los Angeles Herald-Express, which are printed by the Hillbro
Division.
During the year 1959, the Los Angeles Division enjoyed a gross volume of business
in excess of $30 million and purchased newsprint valued in excess of $100,000 which
was shipped directly to Hillbro from points outside the State of California. In addi-
tion, the Los Angeles Division published numerous syndicated features which origi-
1142 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
nated outside the State of California. A substantial portion of the advertising
appearing in these newspapers also originated outside the State of California and
featured nationally sold products. I find that the operations of the Company affect
commerce.
II. THE LABOR ORGANIZATION INVOLVED
Los Angeles Mailers Union No. 9, I.T.U., is a labor organization admitting to
membership the employees of the Company.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issue; introduction
The only issue expressly alleged and litigated herein is whether Respondent
threatened, restrained, or coerced Hillbro with an objective of forcing Hillbro to
enter into a so-called hot cargo agreement within the meaning of Section
"8(b) (4) (ii) (A) of the Act. The conduct attacked by the General Counsel consists
of statements and communications from Respondent to Hillbro commencing on or
about September 6, 1960.
The complaint does not allege as an unfair labor practice that Respondent actually
entered into an agreement in violation of Section 8(e) of the Act. Similarly, no
allegation of unfair labor practices within the meaning of Section 8(b)(4)(ii)(B)
or Section 8(b) (4) (ii) (D) are alleged, although, as will appear, the conduct com-
plained of would seem to fall more closely within the purview of those sections of
the Act.
In December of 1959, Respondent and Hillbro entered into a contract effective
'September, 1, 1959, and expiring August 31, 1961, covering the mailroom employees
of Hillbro. 'While it would not affect the conclusions that follow herein, I do find that
the contract: was- executed more than 60 days after the amendments to the Act
enacted on' September 14, 1959. See Section 707 of the Act.
The contract contained the following clause:
STRUCK SHOPS
SEC. 8 The 'Employer shall not require employees covered by this agree-
ment, and the union reserves the employees' right, to refuse to process material
received from, or destined for, job shops or newspaper mailing rooms other
than the mailing room of the Employers signatory to this contract), in which
an authorized strike by, or a lockout of, a subordinate union of the International
Typographical Union is in progress The union will give the Employer forty-
eight (48),hours'-notice that a strike or lockout is in progress before the proc-
essing of materials may be stopped in accordance with the foregoing provisions.
While Respondent argues that this is not a hot cargo clause within the meaning
of Section 8(e) of the Act, I find otherwise. Section 8(e) defines such a clause
as' one wherein an employer agrees to refrain from handling the products of another
employer or to cease doing business with another person. Section 8 of this contract
provides that Hillbro will 'not require its employees to process goods from a shop
,str"bek by Respondent.
!' ^ This contention' I view as' a " seinantical quibble. An employer hires employees
to.carry on, its busine'ss' operations. In practical effect, there is no distinction be-
tween'an 'employer agreeing that he will not do business with another employer
and. on the other hand agreeing that he will not require his employees to handle
outside merchandise 'from another employer. He is actually agreeing with the
bargaining representative of his employees to stop doing business with the other
employer under given circumstances. See Gerald A. Brown v. Local No. 17, Amal-
gamated Lithographers of America, et at. (Employing Lithographers Div.), 180
F. Supp. 294. Respondent has also contended that Congress did not intend to elimi-
nate the rights of individual employees to refuse to work on goods. While this may
be so: it would seem that these employees who have designated a bargaining repre-
sentative which has ostensibly made a contract in their behalf are subject to both
the debits as well as the credits thereof. See Ford Motor Co. v. Huffman, 345
U.S. 330.
On or about September 1, 1960, Hillbro entered into a contract with Pacific Neo
Gravure, Division of the Cuneo Press, Inc., herein called Pacific, providing that
Pacific would print and deliver to Hillbro, the printer of the Los Angeles Examiner,
a weekly TV booklet td be included as a Sunday supplement commencing with the
issue of September 18, 1960. In order to fulfill this contract, Pacific acquired
certain additional machinery. Members of Respondent employed in the mailroom
would normally enjoy jurisdiction over the insertion of these booklets in the
LOS ANGELES MAILERS UNION NO. 9, I.T.U. 1143
newspaper, and Respondent is also the recognized representative of the mailroom
employees of Pacific.
Respondent promptly became involved in a dispute with Pacific over the assign-
ment by Pacific of certain duties involving the tieing of bundles to the Bookbinders
Union, contending that members of Respondent should perform this work. As
the General Counsel points out in his brief. "Thereafter Respondent attempted to
assert its rights under and invoke Section 8 of its collective bargaining agreement
with Hillbro." This conduct is relied upon by the General Counsel as evidence of
conduct "to enter into an agreement," on the theory that section 8 of the old agree-
ment was "unenforceable and void," as provided in Section 8(e) of the Act.
B. Sequence of events
Business Manager Griffiths of the Los Angeles Examiner testified that President
and Business Manager Mathiesen of Respondent informed him on September 2,
1960, that the Examiner could be heading for trouble in the distribution of the
weekly TV booklet because Pacific was assigning certain work to the Bookbinders
Union which rightly belonged to members of Respondent employed at Pacific.
Mathiesen further stated that if Pacific assigned this work to members of the
other union, Respondent would consider that it had been "locked out"; that section
8 of the contract with Hillbro would become operative; and that Respondent's
members at Hillbro could refuse to process or handle the TV supplement.
Mathiesen's testimony was in substantial agreement. He testified that he informed
Griffiths that if Respondent was unable to get together with officials of Pacific and
that if "someone else" did the tieing work at Pacific, Respondent would consider
it a breach of the contract with Pacific; that this would be a basis for a "lockout";
and that "we felt that we could invoke Section VIII" of the contract with Hillbro.
A meeting was held on September 6, 1960, between representatives of Hillbro and
Respondent. Present for the former were Fred Mannon, industrial relations counsel
for Hearst; Griffiths; and Production Manager Mervick of Hillbro. Respondent
was represented by Mathiesen, International Representatives Ross and Lomas, and
Chapel Chairman Millican. As Mannon testified, after other grievances were dis-
cussed, the union representatives stated that Respondent had a problem in that
Pacific was planning to assign some of the work properly performed by members of
Respondent to the Bookbinders Union; that if this were done it would constitute a
"lockout"; and, in such an event, Respondent would give Hillbro a 48-hour strike
or lockout notice as provided in section 8 of the contract. Mannon promptly
reported the details of this meeting to General Manager Becker of Hillbro who
solicited and obtained legal advice from Company Counsel Flint and MacKay.
On September 9, Mannon met with the union representatives and personally
handed to Mathiesen and Ross copies of a letter bearing that date from Becker to
Mathiesen, attached to which was a letter dated September 8 to Becker from Edward
L. Compton of Flint and MacKay. The September 9 letter stated as follows:
Attached is letter from Flint and MacKay, our legal counsel, regarding the
matter you raised at the meeting on September 6, 1960, with representatives of
Hillbro Newspaper Printing Company Division of Hearst Publishing Company,
Inc.
I direct your attention particularly to the last paragraph of Flint and Mac-
Kay's letter wherein the matter of damages sustained by us as a result of unfair
labor practices by the Mailers' Union is discussed.
As you know, we have announced to our subscribers and the general public
that the new TV book will be distributed weekly by the Los Angeles Examiner
beginning with its issue of Sunday, September 18, 1960.
If any wrongful act of the Mailers' Union prevents the Examiner from mak-
ing full and timely distribution of the new book, we will sustain permanent and
irreparable injury and substantial damages running into hundreds of thousands
of dollars. In such an event, we will have no alternative but to file suit against
the Mailers' Union for the full amount of such damages in the U.S. District
Court.
The September 8 letter which was enclosed consisted of three pages. It accurately
summarized the facts of the dispute, noted the claim by the Bookbinders Union of
the right to tie bundles previously stapled or stitched by members of the Bookbinders
Union at Pacific; and noted the lockout claim and invocation of section 8 of the
contract by Respondent. The letter goes on to explain that Section 8(e) of the Act
makes clauses such as section 8 unenforceable and void; expresses the opinion that
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's action would be a violation of Section 8(b) (4) of the Act; and further
states that damages might be recovered under Section 303 of the Act.
After reading these communications at the meeting , International Representative
Lomas stated that Respondent had not threatened Hillbro and that the attorneys
for the latter "didn 't know what they were talking about."
On September 12, Mathiesen came to Becker's office and handed him a letter
bearing that date addressed to Hillbro and signed by Mathiesen . It stated as follows:
"Pursuant to Paragraph 8, of that certain Agreement between us dated September 1,
1959, this will advise you that a strike or lock -out is in progress at Pacific Neo-
Gravure."
According to Becker , and I so find, Becker pointed out the serious effect of a
stoppage, inasmuch as the subscribers of the Los Angeles Examiner had been
notified that the TV supplement would be distributed with the September 18 issue.
Mathiesen replied that Becker "could straighten this all out" if he would make
Pacific "have the Mailers tie the books ." Becker replied that he had no authority
over that shop. The discussion turned to the alleged illegality of section 8 of the
Hillbro contact and Mathiesen stated that Respondent 's counsel , one Van Arkel,
had advised them that section VIII "was okay because it had been tested in several
states in the East." Mathiesen admitted telling Becker when he delivered the letter
that he believed Respondent could invoke section 8 . He further testified that he
said he did not know whether it would be invoked , but that it was Respondent's
prerogative under the agreement.
Another meeting was held on September 15, primarily to explore the use of
cartons for transporting the TV supplements . Mathiesen , Ross, and Respondent's
counsel, Reinhardt, attended , as did Becker, Mannon , and Mervick . According to
the testimony of Marmon and Becker , Becker inquired whether the placing of the
TV booklets in cartons , instead of tieing them , would solve the problem . Inter-
national Representative Ross replied that it would . ' During the conversation,
Mathiesen said that Becker could solve the problem by informing Pacific that they
"had to use the Mailers to tie these bundles." Becker replied that he did not operate
in that manner.
C. Conclusions
I am assuming for the purpose of this discussion that Respondent's conduct in
seeking to invoke section 8 of the Hillbro contract falls within the purview of
"threaten, coerce or restrain" as utilized in Section 8(b) (4) (ii) of the Act.
As noted, the issue here is not whether Respondent engaged in conduct violative
of Section 81(b) (4) of the Act, as counsel for the Company contended in his
September 8 letter , but only whether a violation of Section 8(b) (4) (A) is spelled
out. That the facts herein maybe indicative of a possible violation of Section
8(b)(4)(B) of Section 8(b)(4)(D) is not before me, even though Respondent, in
its brief, concedes that the "implication" of a violation of the latter section is present
in certain testimony in the record.
Nor is it germane or fitting, for that matter, to question here why the Charging
Party was not so counseled by the office of the General Counsel in the filing of
the charge, for this is a matter totally outside my consideration.
Turning to the issue, I am unable to conclude that Respondent was attempting to
force Hillbro to enter into an agreement. The simple fact is that Respondent already
had a contract with Hillbro and contended , consistent with its counsel, considered
judgment, that section 8 was legal . While it may well be that Respondent 's general
counsel was in legal error in his evaluation of the picture, that issue is not before
me. True, it is entirely conceivable that Respondent privately believed or believes
that section 8 was not lawful , but for strategic reasons adopted a contrary position.
However, on this record, I see no evidence to support such an inference.
Counsel for the Company has contended that the clause was invalid , and probably
correctly so, but it does not follow that Respondent 's contrary claim is to be equated
with a demand for a new clause. And it may well be asked, if the old clause was
unlawful and void, how an identical clause would be of any additional help to
Respondent.
As for the evidence that there was discussion by Hillbro of attempting to persuade
Pacific to deliver the TV supplements in cartons , thus avoiding the dispute, this
involves only the delivery of the TV supplements and in no way is indicative of a
desire to enter into a contract, as alleged in the complaint.
There is no literal evidence whatsoever that Respondent sought to have Hillbro
enter into a new hot cargo agreement or that Hillbro so understood Respondent's
i If cartons were used , it would then be unnecessary to tie the bundles . This method
had not been previously utilized by the parties.
LOS ANGELES MAILERS UNION NO. 9, I.T.U. 1145
action . For as stated, Respondent had an agreement , albeit a hot cargo agreement,
which it considered to be valid and sought compliance therewith. And even if
Respondent's action were construed as an attempt to cause Hillbro to cease doing
business with Pacific, this would be within the purview of Section 8(b)(4)(ii)(B),
a contention expressly disavowed by the General Counsel herein.
Admittedly, Section 8(b)(4)(ii)(A) is intended to preclude union activities to
obtain a hot cargo clause and in the absence thereof, there would be no practical
way to prevent a union from striking to compel an employer to agree to a clause
expressly forbidden by Section 8(e) of the Act. The Company has cited several
cases in support of the General Counsel's position herein. Gerald A. Brown v.
Local No. 17, Amalgamated Lithographers of America, et al., 180 F. Supp. 294;
Pilgrim Furniture Company, Inc., 123 NLRB 910; and American Feed Co., 129
NLRB 321. See also Local 1545, United Brotherhood of Carpenters, etc. v. Merle
D. Vincent, Jr., Reg. Dir., et al., 286 F. 2d 127 (C.A. 2). These cases do not help
the position of the General Counsel because they stand only for the proposition that
a contract with an unlawful hot cargo clause will not be recognized by the Board
for contract-bar purposes?
But I fail to see how this helps the General Counsel toward the necessary con-
clusion that Respondent was seeking a new contract. He contends that inasmuch
as the old section 8 was void, Respondent accordingly sought a new clause. But
Respondent expressly did not do this. It adopted its general counsel's advice that
section 8 was lawful and duly invoked it. And, on September 9, International
Representative Lomas expressly rejected, erroneously or not, the contrary view of
the Company.
As noted, there is not an iota of evidence that this claim was not made in good
faith, in which event the issue might well be viewed otherwise. I cannot, there-
fore, accept the claim of the Company that had •Hillbro yielded to Respondent's
pressure, they would then have reestablished and reaffirmed section 8 of the contract
as a new contract.
The Company has cited the Intermediate Report in Automotive, Petroleum &
Allied Industries Employees Union, Local 618, etc. (Greater St. Louis Automotive
Trimmers and Upholsterers Association, Inc.) [134 NLRB 1363], now pending
before the Board. The complaint there alleged and Trial Examiner Robert Mullin
held that subsequent to the effective date of the 1959 amendments, the union and
the ,employers involved therein reaffirmed and gave effect to certain unlawful sub-
contracting provisions contained in a contract executed prior to the effective date
of the amendments to the Act and more than 6 months prior to the filing of the
charge. Of course, in that case, the allegation was one of entering into an unlawful
contract, within the meaning of Section 8(e). While I believe that the cited case
is, in part at least , distinguishable, in any event, to the extent that the cases may not
be distinguishable, I must respectfully disagree with the holding therein.
Note is taken of a recent decision dated October 25, 1960, in John F. LeBus v.
International Union of Operating Engineers, Hoisting and Portable Local Union
406 (Baltimore Contractors, Inc.), 188 F. Supp. 392 (D.C., E. La.). In that case
which involved a different but related issue, the court noted in footnote 5 that:
The NLRB also charges a violation of clause (4)(A) of Section 8(b)
which prohibits coercive measures, the object of which is "forcing or requiring
any employer or self-employed person to join any labor or employer organiza-
tion or to enter into any agreement which is prohibited by sub-section (e) of
this section. But since it is assumed that the Union already has a contract
containing a subcontractor clause it would not need to obtain another such
agreement . . ." [Emphasis supplied.]
In view of all the foregoing considerations, I find that the evidence does not sup-
port the position of the General Counsel herein and accordingly recommend that
the complaint be dismissed .3
2 Although the Board divided in the Pilgrim decision and the court of appeals also split
in adopting the Board's view, the disagreement was predicated only upon whether the
entire contract fell, as the majority held, or whether only the hot cargo clause was in-
applicable and the remainder of the contract would be recognized for contract-bar purposes.
8 Respondent has also claimed that Hillbro and Pacific are allies and therefore that
no secondary action could result I see no merit to this claim. Hillbro and Pacific are
distinct entities and are not integrated So far as the record discloses , they are two
entirely independent concerns, with no evidence of ownership or control of one by the
other. One of them happens to be the principal customer of the other. This falls far
short of establishing that they are business allies within the meaning of N.L R B. v.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. The operations of the Company affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Los Angeles Mailers Union No. 9, I.T.U., is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent , Los Angeles Mailers Union No. 9, I .T.U., has not engaged in un-
fair labor practices within the meaning of Section 8(b) (4) (ii ) (A) of the Act.
[Recommendations omitted from publication.]
Business Machine and Office. Appliance Mechanics Conference Board, Local 459, etc.
(Royal Typewriter Co ), 228 F 2d 553 (C A. 2), cert. denied 351 U S 962.
Storkline Corporation and Local Union 3031 , United Brother-
hood of Carpenters and Joiners of America , AFL-CIO, Peti-
tioner. Case No. 15-RC-2327. February 20, 1962
DECISION, ORDER, AND DIRECTION OF,
SECOND ELECTION
Pursuant to -a Board Decision and Direction of Election issued on
May 5, 1961,1 an election by secret ballot was conducted in the above-
entitled proceeding on May 12, 1961, under the direction and super-
vision of the Regional Director for the Fifteenth Region, among the
employees in the appropriate unit. At the conclusion of the balloting,
the parties were furnished with a tally of ballots which showed that
of approximately 1,174 eligible voters, 1,106 cast valid ballots, of
which 531 were for the Petitioner, 33 were for the Intervenor, Inter-
national Union of Electrical, Radio and Machine Workers of
America, AFL-CIO, and 542 were against the participating labor'
organizations; 35 cast challenged ballots; and 3 cast void ballots.
The challenges were sufficient in number to affect the results. There-
after, the Petitioner filed timely objections to conduct affecting the
election.
The Regional Director conducted an investigation and on Au-
gust 14, 1961, issued his report on challenged ballots and objections, in
which he recommended that the Petitioner's objections Nos. II, III,
and IV(k) and (1) be sustained, and inasmuch as resolution of the
challenges could not result in a victory for either of the participating
labor organizations, that the election be set aside, and a new elec-
tion held. He recommended that the remaining objections be over-'
ruled.2 The Employer filed timely exceptions to the report and a
supporting brief.
I Not published In NLRB volumes
2In view of our disposition herein of the objections , we need not, and do not , consider
the Regional Director's findings and further recommendations relating to the challenges.
135 NLRB No. 118.