Newark Newsdealers Supply Co.

National Labor Relations Board - Board Decisions

Jun 28, 1951

94 N.L.R.B. 1667 (N.L.R.B. 1951)

NEWARK NEWSDEALERS SUPPLY COMPANY 1667
Upon the basis of the foregoing findings of fact and upon the entire record in the
case , the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Locals 898 and 920, AFL,
are each labor organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of A.
M. 'Coplen, Melven F. Huddleston , and J . J. Everett, thereby discouraging mem-
bership in a labor organization, Respondent has engaged in, and is engaging in,
.unfair labor practices within the meaning of Section 8 ( a) (3) and (1) of
the Act.
3. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of. the Act, Respondent has engaged in, and
unfair labor practices within the meaning of Section 8 (a) (3) and (1) 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.
[Recommended Order omitted from publication in this volume.]
NEWARK 'EWSDEALERS SUPPLY COMPANY and JOSEPH J. TORINO
NEWARK NEWSDEALERS SUPPLY COMPANY and FRANK BAYAK, WILLIAM
BOOKER , LESTER CRISPIN, WILLIAM F. DALTON , RICHARD DEMPSEY,
ANTHONY M . GIANETTI , EDWARD HALUSZKA, STEvEN HALUSZKA,
EDWARD F . HAMS, WILLIAM HEIMS , JAMES MCGOVERN , ROBERT F.
MILLER, PHILLIP MISTRETTA, DOMINICK MONTAONO, ARNOLD NASH,
FRANK F. NATALE, HERBERT A. SWEENEY, JAMES D. TASSINARO, WIL-
LIAM THOMPSON, FLOYD V. WESCOTT, and HENRY Y. WESCOTT.
Cases Nos. 2-CA-673 and 2-CA-697. June 28, 1951
Decision and Order
On December 28, 1950, Trial Examiner W. Gerard Ryan 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
Intermediate Report attached hereto. Thereafter, the Respondent
and the Union filed exceptions to the Intermediate Report; the Re-
spondent also filed a brief. The Board.' has reviewed the Trial
Examiner's rulings made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
'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 Houston and Reynolds].
94 NLRB No. 239.
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has considered the Intermediate Report, the exceptions and brief, and
the entire record in the case, and: hereby adopts the Trial Examiner's
findings, conclusions, and recommendations with the following addi-
tions and modifications : 2
1. We agree with the Trial Examiner's findings that the Respondent
violated Section 8 (a) (1) and (3) of the Act by according to its
employees who belonged to the Union more favorable treatment than
was accorded to nonunion employees. We further find this conduct
violative of Section 8 (a) (2) of the Act.
The Respondent contends that the payment of retroactive wages
to union employees only, and the granting of vacation benefits to
union employees only, was justified by its 1946 agreement with the
Union and the 1947 supplement to that agreement. We cannot agree.
In Rockaway News Supply Company, Inc.,3 we considered almost
identical contracts between the Union here involved and another em-
ployer. For the reasons set forth in that case, we find that the 1946
agreement and its 1947 supplement, although embodying some features
of both a closed-shop and a "members only" contract, do not comply
with the legal requirements. of either. Accordingly, neither agree-'
ment could justify the Respondent in discriminating against non-
union employees by granting retroactive wage payments and holiday
benefits to union employees only.
The Respondent also contends that its 1948 contract with the Union
justified it in paying its union employees higher holiday and overtime
pay than it paid its nonunion employees. Different treatment of em-
ployees because of membership or nonmembership in a labor organi-
zation, particularly with respect to rates of pay, is the clearest form
of discrimination under the Act. True, the 1947 amendments to the
Act permit discrimination to a limited extent: Although the closed
shop is entirely forbidden, the union shop is permitted in certain
circumstances. One requirement is that a majority of the eligible
voters vote to authorize it. That was not done in this case. Moreover,
in permitting the union shop, the Congress sought to protect the rights
of nonunion employees, such as the complainants in this case, by
providing in the very same subsection of the statute :
... no employer shall justify any discrimination against an
employee for nonmembership in a labor organization (A) if he
has reasonable grounds for believing that such membership was
not available to the employee on the same terms and conditions
generally applicable to other members, or (B) if he has reason-
able grounds for believing that membership was denied .. .
2 The consent motion of December 5, 1950, to reopen the record and incorporate therein
an additional stipulation of the parties concerning the scope of Respondent's operations
is hereby granted.
1 94 NLRB No. 156.
NEWARK NEWSDEALERS SUPPLY COMPANY 1669
for reasons other than the failure of the employee to tender
the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership ; .. .
Here we are convinced and find that the Respondent had reasonable
grounds for believing, at the time that it paid the increased benefits
only to union employees, that membership was denied the- com-
plainants for reasons other than their failure to tender dues or initia-
tion fees. In the circumstances we find that the 1948 contract could
not justify the Respondent in ' withholding from the complainants
higher pay for holidays and overtime work because of their nonmem-
bership in the Union.
2. We agree with the Trial Examiner's findings that the Respond-
ent, by signing its 1948 agreement with the Union containing un-
authorized union-shop provisions, violated Section 8 (a) (1), (2),
and (3) of the Act.4 In reaching this conclusion we are not unmind-
ful of the Respondent's-arguments that the General Counsel has failed
to prove either an improper motive or an actual coercive effect on
employees. This Board has consistently held that under the amended
Act, the mere execution of a union-shop contract which was not
authorized by a union-shop election constitutes a . violation 5 The
real test is whether the employer engaged in conduct which, it may
reasonably be said, tends to interfere with the free exercise of rights
guaranteed by the Act .6
The Respondent urges that the signing of the unauthorized union-
security contract could not have affected the complainants' desire to
join the Union,.as it was stipulated at the hearing that at all times
within the purview of the complaint all the complainants desired to
join the Union. We cannot perceive how this stipulation aids the
Respondent's case. The union-shop contract of 1948 replaced the 1946
agreement and the, 1947 supplement. All of these contracts provided
greater benefits for union members than nonmembers. Under all
three the complainants, as nonunion members, remained employees of
4 Gaynor News Company , Inc., 93 NLRB 299.- See also Julius Resnick, Inc ., 86 NLRB
38; Salant & Salant , Inc., 87 NLRB 215 ; Von's Grocery Company, 91 NLRB 504;
New York State Employers Association, Inc., and Red Star Express Lines, etc ., 93 NLRB
127; Rockaway News Supply Company , Inc., supra.
Cf. N. L. R. B. V. Reliable Newspaper Delivery, Inc., 187 F . 2d 547, vacating 88 NLRB
659, where the legality of the contract between the employer and the union was not in
issue, and no violation of Section 8 (a) (2) was alleged.
5__. Seethe preceding footnote . In the Resnick case a violation was found , notwithstanding
the fact that the unauthorized union -security clause in the contract was not enforced by
the parties . See, also , The Great Atlantic and Pacific Tea Company , 81 NLRB 1052, and
Jones & Laughlin Steel Corporation, et al., 83 NLRB 916 , enfd . 184 F. 2d 392 (C. A. D. C.),
where the Board found that labor organizations which had caused or attempted to cause
employers to execute contracts containing unauthorized union -security provisions violated
Section 8 ( b) (2) of the Act.
5 N. L. R. B. v . Link Belt Co., 311 U. S . 584, 588 ; N. L. R. B. v. Illinois Tool Works,
153 F. 2d 811 (C. A. 7) ; N. L. R. B. v. Perfect Circle Co ., 162 F. 2d 566 ( C. A. 7) ;
N. L. R. B. V. Ford, et al., 170 F. 2d 735 (C. A. 6).
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent only at the sufferance of the Union. In short, union
membership was made desirable to nonmembers by all three contracts.
Moreover, by including the unlawful union-security provisions in the
1948 contract the Respondent also interfered with the right of union
members to give up their union membership, as, under the terms of
the contract, the exercise of that right could result in reduction in
benefits or even discharge if the Union so desired?
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, Newark News-
dealers Supply Company, Newark, New Jersey, 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 or tenure of
employment or any term or condition of employment of any of its
employees.
(b) 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 condi-
tion of employment, unless such- agreement has been authorized as
provided by the National Labor Relations Act, as amended.
(c) Performing or giving effect to its 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, agreement, or understanding en-
tered into with said organization, or any successor thereto, relating
to grievances, labor disputes, wages, rates of pay, hours. of employ-
ment, or other conditions of employment, unless and until said organi-
zation shall have been certified by the National Labor Relations
Board as the collective bargaining representative of the affected
employees.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their right to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively 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 activi-
I We do not here rule on the legality of the Union 's conduct , as it was not placed in
issue by the complaint , nor was this question litigated at the hearing.
NEWARK NEWSDEALERS SUPPLY COMPANY . 1671
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Make whole Joseph J. Torino, Frank Bayak, William Booker,
Lester Crispin, William F. Dalton, Richard Dempsey, Anthony M.
Gianetti, Edward Haluszka, Steven Haluszka, Edward F. Heims,
William Heims, James McGovern, Robert F. Miller, Phillip Mistretta,
Dominick Montagno, Arnold Nash, Frank F. Natale, Herbert A.
Sweeney, James D. Tassinaro, William Thompson, Floyd V. Wes-
cott, and Henry Y. Wescott for any loss of pay they may have suf-
fered by reason of the Respondent's discrimination against them, in
the manner set forth in the section of the Intermediate Report en-
titled "The remedy." 8
(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 griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until said organization
shall have been certified as such representative 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
pay back due under the terms of this Order.
(d) Post at its place of business at Newark, New Jersey, copies
of the notice attached hereto, marked "Appendix A".9 Copies of said
notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Respondent's represent-
ative, be posted by the Respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material. ,
. 8 As-.it has not been established that the , Respondent employed any nonunion employees
other than the complainants , unlike the ' Trial Examiner , we shall limit our Order in this
respect to the complainants . However, we expressly reserve the right to modify the
back-pay provisions of our Order herein, if such action should be required by specific
circumstances not now apparent.
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."
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. (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 the hire and tenure of employment or any term or condition
of employment of any of our employees.
WE WILL NOT enter ' into, renew, or enforce 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 membership in such labor
organization as a condition of employment, unless such agree'-
ment has been authorized 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 form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
poses 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.
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the National Labor
Relations Act, as amended.
WE WILL withdraw and withhold all recognition from NEWS-
PAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY,
or any successor thereto, as the representative of any of our
employees for the purposes of dealing with us concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until the said labor
organization shall have been certified as such representative by
the National Labor Relations Board.
WE WILL cease performing or giving effect to our contract of
October 25, 1948, with NEWSPAPER AND MAIL DELIVERERS' UNION
NEWARK NEWSDEALERS SUPPLY COMPANY 1673
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, or
any successor thereto relating to gievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment, unless or until said organization shall have been certified
by the National Labor Relations Board as the collective bargain-
ing representative of the affected employees.
WE WILL make whole Joseph J. Torino, Frank Bayak, William
Booker, Lester Crispin, William F. Dalton, Richard Dempsey,
Anthony M. Gianetti, Edward Haluszka, Steven Haluszka, Ed-
ward F. Reims, William Heims, James McGovern, Robert F.
Miller, Phillip Mistretta, Dominick Montagno,. Arnold Nash,
Frank F. Natale, Herbert A. Sweeney, James D. Tassinaro, Wil-
liam Thompson, Floyd V. Wescott, and Henry Y. Wescott for
any loss of pay they may have suffered as a result of our dis-
crimination against them.
All our employees are free to become, remain, or refrain from becom-
ing or remaining, members of any labor organization, except to the
extent. that this right may be affected by agreements in conformity
with Section 8 (a) (3) of the National Labor Relations Act, as
amended.
NEWARK NEWSDEALERS SUPPLY COMPANY,
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 and Recommended Order
Jerome A. Reiner, Esq., for the General Counsel.
Bandler, Haas & Kass, Esgs., by Julius Kass, Esq., and Richard Halpern, Esq.,
of New York, N. Y., for the. Respondent.
Samuel Duker, Esq., and Mr. Louis Greenberg, of New York, N. Y., for the
Intervenor, Newspaper and Mail Deliverers' Union of New York and Vicinity.
STATEMENT OF THE CASE .
Upon amended charges in Case 2-CA-673 filed by Joseph J. Torino and in
Case 2-CA-697 filed by Hardy and Bladeck, Inc., on behalf of Frank Bayak,
William Booker, Lester Crispin, William F. Dalton, Richard Dempsey, Anthony
M. Gianetti, Edward Haluszka, Steven Haluszka, Edward F. Heims, William
Heims, James McGovern, Robert F. Miller, Phillip Mistretta, Dominick Mon-
tagno, Arnold Nash, Frank F. Natale, Herbert A. Sweeney, James D. Tassinaro,
William Thompson, Floyd V. Westcott, and Henry Y. Westcott, herein called
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Claimants,' the General Counsel of the National Labor Relations Board,
called herein respectively the General Counsel and the Board, through the Re-
gional Director for the Second Region, (New York, New York), issued a con-
solidated complaint dated June 26, 1950, against Newark Newsdealers Supply
Company, herein called the Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and
(7) of the Labor Management Relations Act, 1947, herein referred to as the
Act. Copies of the charges, the order consolidating the cases, the complaint,
and notice of hearing were duly served upon the Respondent.
With respect to the unfair labor practices the complaint, as amended at the
hearing, alleges in substance :
(1) That on or about October 25, 1948, the Respondent and the Union entered
into a collective bargaining agreement which required membership in the
Union as a condition of continued employment by the Respondent and which
otherwise provided for the preferential treatment of union members in violation
of the Act ; and that since that date the Respondent and the Union have con-
tinued the said collective bargaining agreement in full force and effect in vio-
lation of the Act.
(2) That by paying, awarding, and according union employees in the follow-
ing classifications : route men, recovery men, Canada men, distributors and
tiers, chauffeurs, relay men, carriers, delivery of advances, wrapper writing
and pasting of labels on wrappers (except the shipping and reorder slips), in-
sertion of newspapers, and putting of labels in racks, the following increases,
advantages, and benefits, but refusing and denying them to nonunion employees,
(including the Claimants), performing the same or similar work, viz: (a)
Retroactive wages for a period from about July 1948 to and including October
1948; (b) vacations with pay or its equivalent in money; and (c) higher rates
of pay for holiday and overtime work, the Respondent has violated Section 8
(a) (1), (2), and (3) of the Act.
In its answer, as amended at the hearing, the Respondent admits the allega-
tions of the complaint as to the payment to union employees in said categories
of retroactive wages, higher rates for holidays and overtime pay, and granting
vacations with pay, and that it failed to grant like benefits to nonunion em-
ployees doing similar work. The answer further admits entering into a col-
lective bargaining agreement with the Union but denies that such agreement
required membership in the Union as a condition for continued employment or
provided for the preferential treatment of union members or is in any way
invalid and further denies the commission of any unfair labor practice.
The answer by the Union, stated orally at the hearing, admitted all the alle-
gations of the complaint, except that it denied the allegations of the complaint
contained in paragraph 9 which alleged the aforesaid agreement to be invalid
and in violation of the Act.
Pursuant to notice, a hearing was held on July 31 and August 1, 1950, in New
York City before W. Gerard. Ryan, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. On the second day of the hearing, the
Union moved to intervene in this proceeding, and there being no objection, the
motion was granted. The General Counsel, the Respondent, and the Union par-
1 The original charge in Case 2-CA-673 was filed March 3, 1949, mailed on March 4,
and delivered on March 7 , 1949. The amended charge was filed June 16, 1950 , mailed
on June 16 , and delivered on June 19 , 1950. In Case 2-CA-697, the original charge was
filed March 16, 1949, mailed on March 17 , and delivered on March 18, 1949. The
amended charge was filed June 15, 1950 , mailed on June 16, and delivered on June 19, 1950.
NEWARK NEWSDEALERS SUPPLY COMPANY 1675
ticipated in the hearing and were afforded full opportunity. to be heard and to
introduce evidence bearing upon the issues. No witnesses were called to tes-
tify by any party and the evidence in the record consists entirely of stipulations
of fact and documentary evidence.
Decision was reserved on the Respondent's motions to dismiss the complaint
at the close of the General Counsel's case-in-chief and again at the end of the
hearing. The motions are herewith denied. The Union moved to dismiss the
complaint insofar as it alleges illegality of the union-shop provision • in the
contract. The motion is herewith denied.
The parties participated in oral argument at the conclusion of the evidence and
were afforded an opportunity to file briefs, proposed findings of fact, and con-
clusions of law. Only the Respondent has filed a brief.2
Upon the entire record in the case, I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Since 1918, Newark Newsdealers Supply Company has been a corporation or-
ganized and existing by virtue of the laws of the State of New Jersey, maintain-
ing its principal office and place of business in the city of Newark, where it now
is and has been. continuously engaged in the purchase, sale, distribution, and
delivery of newspapers, magazines, and periodicals. During the year ending
December 31, 1949, in the course and conduct of its business operations, it caused
to be purchased, transferred, and delivered to its place of business in Newark, New
Jersey, newspapers, magazines, and periodicals valued at an amount in excess of
$100,000 of which 50 percent was transported to said place of business in
Newark, New Jersey, in interstate commerce from States of the United States
other than the State of New Jersey. During the same period, it sold, delivered,
and distributed said newspapers, magazines, and periodicals to retail distributors
in locations within the State of New Jersey. The Respondent concedes and I
find that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Newspaper and Mail Deliverers' Union of New York and Vicinity is a labor
organization within the meaning of the Act, admitting to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Contractual relations between the Respondent and the Union
From August 1948 and continuing to the date of the hearing, the Respondent
employed 90 employees in the categories referred to below. For several years
prior to the present Act, the Respondent and the Union had collective bargaining
agreements.
The contract executed in January 1946 was effective from October 1, 1945, to
October 16, 1947, and specified in its preamble that it was between the Respondent
? The Respondent's brief contains certain inaccuracies : On' pages 1 and 21, it states
that the original charges were filed February 3 and 16, 1949. Further , the record shows
that rulings on the motions to dismiss were reserved at the hearing by the Trial Examiner,
yet the brief on pages 22 and 27 directs attention to the error contained in the denial
by the Trial Examiner to dismiss the complaint ; on page 35 , it charges the Trial Examiner
with dereliction of duty in not following one case and for relying on another case, when
as a fact this Trial Examiner had not then made any ruling on the motion.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Union "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
and. collectively designated as the `Employees '." By its terms the Employer
was to "employ only members of the Union" and the Union should at-all times
furnish such men -as were required by the Employer , but that when the Union
"fails to furnish such men promptly the Employer is authorized to meet his
needs" by employing such men as it was able to secure ; but if the men "so em-
ployed"were not union members they shall be employed so long as the Union
fails to furnish union members "willing and qualified to take their places." On
October 26, 1946, the parties stipulated in writing that the contract should be
extended to October 16, 1948. On October 9, 1947 , by a second supplementary
agreement , the rates of pay of those covered in the contract were raised for the
period starting October 17 , 1947 , and ending October 16 , 1948. It also provided :
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 ban three months after the effective term of any new written con-
tract which the Union may enter into with the Publishers ' Association of
New York City, then and in such event the wage rates provided in such new
contract between the parties hereto shall be applicable retroactively for the
past three months of the present existing contract. . . .
The Respondent and the Union entered into a new contract on October 25, 1948,
which recognized the Union "as the exclusive representative for collective bar-
gaining for all of its employees who perform all work in the delivery and handling
of newspapers , magazines , periodicals , publications and merchandise in the
operations performed by the following : route men , recovery men, Canada men,
distributors and tiers , chauffeurs, relay men , carriers , delivery of advances,
wrapper writing and pasting of labels on wrappers ( except the shipping and
re-order slips ), insertion of newspapers , putting of labels in racks."
The 1948 contract provided for pay raises , a vacation period of 3 weeks annu-
ally for older employees ( an increase of 1 week over the 1946 contract ), double
time for work on holidays , and a provision that when an employee 's work time
was changed he was entitled to 4 days' notice thereof. In the event of failure to
give 4 days' notice the employees was entitled to time and a half for the "time
involved in the change ." It includes the following :
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 folllowing the beginning of employment.
2-c The parties hereto agree that when a definition or interpretation of
the thirty-day period has been handed down by law, then such definition or
interpretation shall thereafter govern insofar as this contract is concerned.
* * * * * * *
SECTION 17
Because of the enactment of the Labor -Management Relations Act, 1947,
this contract differs from its immediate predecessor and from contracts
between these patties over a_period of many years . Specifieally ,.this agree-
ment eliminates closed shop, alid references thereto because it no longer
is permissible under the federal law . This provision is appended hereto
as an appendix to; but not as a part of , this contract.
It is understood and agreed , however, for the duration of this contract,
that if any provision , as shown in the appendix hereto, and as modified-from
the preceding contract or excluded from this contract solely because of the
NEWARK NEWSDEALERS SUPPLY COMPANY 1677
restrictions of law, no longer is held to be inoperative, either by legislative
enactment or-by decision of the court of highest recourse, then such provision
automatically shall become a part of this contract, to the extent permitted,
and be in force and effect as though it had been originally made a part
hereof.
None of these provisions was retroactive. No union-shop election has been
held in compliance with the proviso in Section 8 (a) (3) and the terms of
Section 9 (e) of the Act.'
B. Disparity of treatment between union and nonunion employees
It was stipulated at the hearing, the evidence shows, and I find that union
employees in the above categories received the following benefits, payments, and
preferences which were not granted to nonunion employees doing similar work
during the year 1948 and thereafter :
(1) Retroactive wages paid in December 1948, covering the period from July
17 to October 23, 1948, inclusive. -
(2) In November 1948, and in 1949, vacations with pay or the, equivalent in
dollars.
(3) Since September 1948 higher rates of pay for holiday work and overtime
work.
C. Contentions
The General Counsel maintains that as a result of the contract provisions,
and by the disparate treatment of its employees, admittedly based on union
membership or lack of it, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8 (a) (1) thereof, has illegally assisted the Union
in violation of Section 8 (a) (2), and has discriminated against employees
with respect to terms or conditions of employment thereby encouraging member-
ship in the Union; in violation of Section 8 (a) (3).
The Respondent contends that the complaint, based on the 'amended charges,
is barred by Section 10 (b) of thU Act ; that with respect to the disparate treat-
ment of its employees which occurred prior to October 25, 1948, the Respondent
contends that its obligation to pay the benefits to its union employees was
established by -the terms of the January 1946 collective bargaining agreement
then in effect and which did not exist for nonunion employees ; that the nonunion
employees had no such contractual right to such payments, and since there is
no statute which requires equal pay for equal work, they have no basis for the
assertion of such legal right; that concerning the disparate treatment of its
employees since October 25, 1948, the Respondent maintains it amounts to
nothing more than a violation of the contract which speaks in terms of all
employees of the Respondent and if any employee did not receive that to which
he was entitled under the contract, his remedy lies, not with the Board, but
under the provisions of the contract for adjustment and arbitration. The Re-
spondent further contends that it has committed no unfair labor practice since
the record fails to establish that such preferential treatment accorded union
employees thereby encouraged membership in the Union and that the General
Counsel has failed completely to establish the Respondent's "evil" motive.
The Union argues, in support of its motion that the complaint should be
dismissed insofar as it alleges illegality of the union-shop provision, that because
of the two concluding paragraphs of section 17 of the contract' and the intent
3 On December 19, 1949, the Union filed a UA petition with the Board and withdrew
it on January 4, 1950.
4 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
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therein expressed, the union-security clause contained in 2-b never came into
operation and was never intended to come into operation until the Act wag
complied with and therefore the Respondent and the Union cannot be held to
have entered into such an illegal clause.
D. Conclusions
With respect to the Respondent 's motion that the complaint is barred by
Section 10 ( b) of the Act, I find that the original charges and the amended
charges are substantially the same. The original charges allege violations of
Section 8 ( a) (1) and ( 3) and the amended charges allege violations of Section
8 (a) (1), (2 ), and (3 ). The facts alleged in the original charges if proved
are sufficient to support a finding of assistance under Section 8 ( a) (2). In
my opinion , the cases relied upon by the Respondent are not controlling and I
therefore find that the statute of limitations does not apply in this case. See
Jaques Power Saw Company , 85 NLRB 440 ; Cathey Lumber Company, 86 NLRB
157; Lily-Tulip Cup Corporation , 88 NLRB 892; and Tennessee Knitting Mills,
Inc., 88 NLRB 1103.
Similar arguments advanced by the Respondent in support of its contentions
were considered and rejected by the Board in a recent case'
There the Board held that disparate treatment of employees with respect
to retroactive wage payments on the basis of union membership or the lack
of it is a clear violation of Section 8 (a) (1) and ( 3). On the authority of
that decision , I find that the Respondent in according to its union employees
more favorable treatment , with respect to wages, overtime work, and work
done on holidays , than it accorded to its nonunion employees , basing such
disparate treatment on membership or lack of membership in the Union , consti-
tuted violations of Section 8 (a) (1) and ( 3) of the Act' I further find
that the Respondent by signing and enforcing the 1948 agreement containing
a union-security clause, thereby assisting the Union , has interfered with, re-
strained , and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act and in further violation of Section 8 (a) (2) 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 operation of the Respondent described in Section I, above,
this agreement, at any time during its life be in conflict with Federal or State law or
regulation then such provision shall continue in effect only to the extent permitted. In
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 mutually agreed that the spirit as well as the letter of this agreement is to. be
observed in full and that neither party will enter into any other agreement which in any
way renders impossible or inoperative any provision of this contract.
5 Reliable Newspaper Delivery, Inc., 88 NLRB 659.
See also Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678, 686 ; Republic Aviation
Corp. v. N. L. R. B., 324 U. S. 793, 805; Home Beneficial Life Ins. Co. v. N. L. it. B.,
159 F. 2d 280, 286; N. L. R. B. v. Donnelly Garment Co., 330 U. S. 219, 231; N. L. R. B. v.
Link-Belt Co., 311 U. S. 584, 588; N. L. R. B. v. Electric Vacuum Cleaner Co., Inc.,
315 U. S. 685, 694-695; N. L. R. B. v. G. W. Hume & California Processors & Growers, Inc.,
180 F. 2d 445, 447; N. L. R. B. v. Don Juan, Inc., 178 F. 2d 625, 627; Steele v. Louisville &
Nashville R. R. Co., 323 U. S. 192, 203; Wallace Corp. v. N. L. R. B., 323 U. S. 248, 255;
N. L. R. B. v. J. I. Case Co., 321 U. S. 332, 337.
, The union-security clause in the 1948 contract was illegal notwithstanding the saving
clause. See C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163; Schaefer
Body, Inc., 85 NLRB 195; Unique Art Manufacturing Co., 83 NLRB 1250; and Lykens
Hosiery Mills, Inc., 82 NLRB 981. The union-security provision was not conditioned
on ratification by a union-shop election in accordance with Sections 8 (a) (3) and 9 (e)
of the Act, and in fact there was no such ratification.
NEWARK NEWSDEALERS SUPPLY COMPANY 1679
have a close, initimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
The 1948 contract having been found to include a union-shop provision in
violation of Section 8 (a) (2) and ( 1) of the Act , I shall recommend that the
Respondent withdraw recognition from the Union and cease giving effect to
the 1948 contract with that organization , or to any modification , extension,
supplement , or renewal thereof unless and until the Union has been certified
by the Board. Nothing in this recommendation , shall be deemed to require the
Respondent to vary or abandon those wage, seniority , or substantive features
of its relations with its employees established in conformance with the terms
of said contract , or to prejudice the assertion by employees of any rights they
may have under such agreement.
I shall further recommend that the Respondent make the Claimants , Joseph
J. Torino, Frank Bayak, William Booker, Lester Crispin, William F. Dalton,
Richard Dempsey , Anthony M. Gianetti , Edward Haluszka , Steven Haluszka,
Edward F. Helms , William Heims, James McGovern , Robert F. Miller , Phillip
Mistretta , Dominick Montagno , Arnold Nash, Frank F. Natale, Herbert. A.
Sweeney, James D. Tassinaro , William Thompson , Floyd V. Westcott , Henry Y.
Westcott, and all other employees similarly situated , whole for any loss in pay
they or any of them may have suffered by reason of the Respondent 's discrim-
inatory treatment because of their nonmembership in the Union ; and that the
Respondent , upon request, make available to the Board its payroll and other
records to facilitate the computation of back pay.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case , I make the following :
CONcLVSIONS or LAW
1. Newspaper and Mail Deliverers' Union of New York City and Vicinity is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By granting back pay, overtime, and double time, and other preferences
to union employees but not to nonunion employees, the Newark Newsdealers
Supply Company has discriminated in regard to the hire and tenure of employ-
ment of Joseph J. Torino, Frank Bayak, William Booker, Lester Crispin, Wil-
liam F. Dalton, Richard Dempsey, Anthony M. Gianetti, Edward Haluszka,
Steven Haluszka, Edward F. Heims, William Helms, James McGovern, Robert
F. Miller, Phillip Mistretta, Dominick Montagno, Arnold Nash, Frank F. Natale,
Herbert A. Sweeney, James D. Tassinaro, William Thompson, Floyd V. West-
cott, Henry Y. Westcott, as well as other nonunion employees similarly situated,
within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise
of their rights as guaranteed in Section 7 of the Act, Newark Newsdealers
Supply Company has engaged in unfair labor practices within the meaning
of Section 8 (a) (1) of the'Act.
4. By executing and giving effect to an illegal union-shop contract Newark
Newsdealers Supply Company has assisted the Newspaper and Mail Deliverers'
Union of New York and Vicinity and has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (2) of the Act.
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. 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.]
THE BALTIMORE TRANSFER COMPANY OF BALTIMORE CITY, INC. and
WILLIAM D. CUNNINGHAM
LOCAL No. 639, DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
UNION, AFL and WILLIAM D. CUNNINGHAM. Cases Nos. 5-CA -240
and 5-CB--45. June 28, 1951
Decision and Order
On January 15, 1951, Trial Examiner William F. Scharnikow is-
sued his Intermediate Report in the above-entitled proceedings, find-
ing that the Respondents had engaged in certain unfair labor prac-
tices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter only the Respondent
Union filed exceptions to the Intermediate Report and a supporting
brief.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
cases, and hereby adopts the findings, conclusions,2 and recommen-
1 The Trial Examiner found, and we agree, that the discharge of the complainant violated
proviso (B) of Section 8 (a) (3) and also Section 8 (b) (2), despite the fact that the
evidence does not show a "tender" in the strict legal sense by the dischargee of his dues
arrearages on his later visits to the union hall. As the Board stated in Union Starch tb
Refining Company, 87 NLRB 779, 784, "proviso (B) requires a tender of dues." However,
by that observation the Board was indicating the basic distinction between proviso B
and proviso A and was pointing out that in proviso A the question of whether the employee
has offered to pay dues and fees is not relevant whereas in proviso B it is. The statement
made was not intended to establish any requirement that proviso B is applicable only where
there has been the kind of "tender" that would satisfy a strict legal definition of that term.
In the present case the dischargee, shortly after he had been fined, proffered his dues
book and money at the Union's payment window for the dues current at that time. The
payment was refused and Cunningham was referred to the Union's executive board which
ratified the refusal to accept his payment of the dues. Cunningham visited the union
hall twice a year in the four following years and told the man at the window each time
that he was willing to pay his dues and reinstatement fee, but each time he was informed
that he would have to see the executive board as he had been fined. On these occasions
he was not permitted to see the executive board. Under these circumstances we find
that the complainant had clearly indicated his immediate willingness to pay his dues and
arrearages and was not obliged to continue to make the useless gesture of actually handing
the money to the Union' s cashier each tine in order to fulfill the obligation of "tender"
required by proviso ( B) of Section 8 (a) (3) and Section 8 (b) (2).
2 Paragraph 2 of the Trial Examiner 's "Conelusionl of Law" contains a typographical
error which we hereby correct by deleting the words "because of," and substituting in
lieu thereof the words , "on some ground other than."
94 NLRB No. 220.