News Syndicate Co., Inc.

National Labor Relations Board - Board Decisions

Aug 14, 1951

95 N.L.R.B. 1098 (N.L.R.B. 1951)

1098 DECISIONS : _- OF' , NATIONAL LABOR RELATIONS BOARD
-NEWS SYNDICATE Co., INC . and MILTON ASHKENASY
.NEWS SYNDICATE Co., INC . and BERNARD CANNER , WILLIAM GILSON,
ABRAHAM I. GORDON, GUSTAVE KARGER, JOHN E. KELLY, JOHN
MCMAHAN, BENJAMIN SCHECHNER , EDWIN J. THORNTON , FILMORE
G. WEBER, JAMES R. WINNERS , HENRY SADOWITZ AND NATHANIEL
D. TENENBAUM
NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY
and MILTON ASHKENASY -,
(NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY
and BERNARD CANNER, WILLIAM GILSON, ABRAHAM I . GORDON,
GUSTAVE KARGER, JOHN E . KELLY, JOHN MCMAIIAN, BENJAMIN
SCHECHNER , EDWIN J. THORNTON , FILMORE G. WEBER , JAMES R.
WINNERS , HENRY SADOWITZ AND NATHANIEL D. TENENBAUM.
Cases Nos. 9-CA-995, . P2-CA-1132 , 2-CB-330, and 2-CB-373.
August 14,1951
Decision and Order
On April 25, 1951, Trial Examiner David London issued his Inter-
nediate Report in the above-entitled proceeding, finding that the
:Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as` set forth in the copy of the
Intermediate Report attached hereto.' Thereafter the Respondent
`Company; the Respondent Union, and the General Counsel filed ex-
ceptions to the Intermediate Report. The Respondent Company and
-the General Counsel also filed supporting briefs.
The Board 2 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 briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the modifications noted below .3
The General Counsel contends that the "interim award" issued by
- ' the Adjustment Board is illegal. For the reasons expressed by Trial'
1 An "Errata" Issued by Trial Examiner London on May 2 , 1951, is deemed part of his
Intermediate Report.
$ Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Houston and Reynolds].
As the record shows that a copy of, the original charge against each Respondent was
served October 26 , 1949 , we.date the nfair labor practices herein from April 26, 1949,
rather than from April 24, 1949, as did the Trial Examiner. '
95 NLRB No. 143. -
NEWS SYNDICATE CO., INC. 1099
Examiner Schneider in the Hearst Consolidated Publications, Inc.,
case and adopted by the Board ,4 we find no merit in this contention.
The General Counsel also contends that the remedy should be ex-
tended to encompass , in addition to those named in the complaint (as
to whom the Trial Examiner found discrimination ), all other non-
union men who "shaped" the News during the period in question.
For the reasons expressed in the Hearst case , supra, and in Newspaper
and Mail Deliverers ' Union of New York and Vicinity ( the Herald-
Tribune case ) ,5 we reject this contention as without merit. In addi
tion , we shall limit the Trial Examiner 's finding of discrimination to
the employees as to whom the General Counsel established a case of
discrimination , and shall exclude those who were not shown by the
record to have been discriminatorily denied employment . Thus, our
finding and order shall not extend to James R. Winners and Edwin
J. Thornton.
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:
1. The Respondent, Newspaper and Mail Deliverers' Union of
New York and Vicinity, its officers, agents, successors, and assigns,
shall :
A. Cease and desist from :
(1) Causing or attempting to. cause the Respondent, News, Syn-
dicate Co., Inc., its officers, agents, successors, or assigns, to discrimi-
nate against employees or applicants for employment in violation of
Section 8 (a) (3) of the Act.
(2) Restraining or coercing employees of the Respondent News
Syndicate Co., Inc., its successors or assigns, or applicants for employ-
ment with the said Respondent, in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent that such rights. may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by Section 8 (a) (3)
of the Act.
B. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(1) Notify News Syndicate Co., Inc., that it has no objection to
the hiring and employment of Milton Ashkenasy, Herbert Friedman,
Aaron Harbus, Bernard Canner, William Gilson, Abraham I. Gordon,
Gustave Karger, John.E. Kelly, John-McMahan, Benjamin Schechner;
1 93 NLRB No. 42.
5 93 NLRB 419.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Filmore G. Weber, Henry Sadowitz, Nathaniel D. Tenenbaum, or any
other persons, without regard to their membership or nonmembership
in either the Respondent Union or any other labor organization, and
without prejudice to their seniority or -other rights, and privileges,
except to the extent authorized by Section 8 (a) (3) of the Act.
(2) Post at its business office and meeting-hall copies of the notice
attached hereto as Appendix A.6 Copies of said notice, to be fur-
nished by the Regional Director for the Second Region, shall, after
being duly signed by a representative of the Union, be posted by it
immediately upon receipt thereof and maintained by it for a period
of at least .60 (sixty) consecutive days thereafter in conspicuous
places, including all places where notices to members are, customarily
posted. Reasonable steps shall betaken by the Union to insure that
said notices are not altered, defaced, or covered by any other material.
(3) Mail to the Board's Regional Director for the Second Region
signed copies of said notice for posting, the Respondent Company
willing, at the latter's New York and Brooklyn plants, in places where
notices to delivery department employees are customarily posted.
(4) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
II. The Respondents, News Syndicate Co., Inc., New York, New
York, its officers, agents; successors, and assigns, shall:
A. Cease and desist from : .
(1) Encouraging membership in the Respondent, Newspaper and
Mail Deliverers' Union of New York and Vicinity, or in any other
labor organization of its employees, by giving preference for employ-
ment to members thereof, or by in any other manner discriminating
among its employees, or applicants for employment, in regard to their
hire or tenure of employment or any term or condition of their em-
ployment, except to the extent permitted by Section 8 (a) (3) of
the Act.
(2) Interrogating employees or applicants for employment con-
cerning their union membership.
(3) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the.rights guaranteed in
Section 7 of the Act.
B. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Upon application, offer employment, in available jobs in its
delivery department which they are qualified to perform, to Milton
6In 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 "Decree of the
United States Court of Appeals Enforcing."
NEWS. SYNDICATE CO., INC. 1101
Ashkenasy, Herbert Friedman, Aaron Harbus, Bernard Canner,
William Gilson, Abraham T. Gordon. Gustave Karger,.John E. Kelly,
John McMahan, Benjamin Schechner, Filmore G. Weber, Henry
Sadowitz, and Nathaniel D. Tenenbaum, without discrimination in
regard to their hire or tenure of employment, or any term or condition
-of employment because of their membership or nonmembership in the
Respondent, Newspaper and Mail Deliverers' Union of New York and
Vicinity, or in any other labor organization, and without prejudice
to their seniority or other rights and privileges.
(2) Notify the above-named complainants in writing that, upon
-their application, it will offer them employment in available jobs in
its delivery department on a nondiscriminatory basis.
(3) Upon request, make available to the 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 amounts of back pay due and the
:right of employment under the terms of this Order.
(4) Post at its plants at New York, New York, and Brooklyn, New
York, copies of the notice attached hereto as Appendix B.7 Copies of
such notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Company's representa-
-tive, be posted by the Company immediately upon receipt thereof and
maintained by -it for sixty (60) consecutive days thereafter in con-
-spicuous places, including all places where notices to delivery depart-
ment employees are customarily posted. Reasonable steps shall be
taken by the Company to insure that said notices are not'altered,
defaced, or covered by any other material.
. (5) Notify the Regional Director for the Second Region in writing,
-within ten (10) days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
III. The Respondents, Newspaper and Mail Deliverers' Union of
New York. and Vicinity, News Syndicate Co., Inc., and their officers,
agents, successors, and assigns, shall jointly and severally make whole
Milton Ashkenasy, Herbert Friedman, Aaron Harbus, Bernard
Canner,. William Gilson, Abraham I. Gordon, Gustave Karger, John
E. Kelly, John McMahan, Benjamin Schechner, Filmore G. Weber,
Henry Sadowitz, and Nathaniel D. Tenenbaum, for any loss of pay
they may have suffered as a result of the discrimination against them,
in the manner prescribed in the section entitled "The Remedy" in the
Intermediate Report.
4 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 "Decree of the
United States Court of Appeals Enforcing."
1102 DECISIONS 01 ' NATIONAL'.,LABOR' RELATIONS BOARD
-
Appendix-A '.
NOTICE TO ALL MEMBERS OF NEWSPAPER AND MAIL DELIVERERS' UNION
OF NEW YORK AND VICINITY AND TO ALL EMPLOYEES OF NEWS SYNDI-
CATE Co., INC.
Pursuant to a Decision and Order 'of the National Labor .Relations
Board, and in order to effectuate the policies of the National Labor. Re-
lations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause NEWS SYNDICATE Co.,.
INC. (DAILY NEWS AND SUNDAY. NEWS), its officers, agents, suc-
cessors, or assigns, to discriminate against its employees or appli-
cants for employment in regard to their hire or tenure of employ-
ment or any term or condition of employment, in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees. of NEWS SYNDICATE.
Co., INC. (DAILY NEWS AND SUNDAY NEWS), its successors or as-
signs, or applicants for employment with the said company, in
the exercise of their right to self-organization, to form, join,.
or assist labor organizations, to bargain collectively through rep-
resentatives of their'own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activ-
ities, as guaranteed in Section 7 of the Act, except to the extent
that such right may be affected by an agreement, requiring mem-
bership in a labor organization as a condition of employment as
authorized by Section 8 (a) (3) of the Act.
WE WILL make whole Milton Ashkenasy, Herbert. Friedman,.
Aaron Harbus, Bernard Canner, William Gilson, Abraham I.
Gordon, Gustave Karger, John E., Kelly, John McMahan,-Benja-
min Schechner, Filmore G. Weber, Henry Sadowitz, and Na-
thaniel D. Tenenbaum, for any loss of pay suffered as a result of
the discrimination against them. .
We have no objection to the employment of the above-mentioned
individuals, without discrimination because of their nonmembership
in the union, and without prejudice to their seniority or other rights
and privileges, or to the employment of other individuals on a nondis-
criminatory basis. We have given NEWS SYNDICATE Co., INC., notice
to this effect.
NEWSPAPER AND MAIL DELIVERERS'
UNION OF NEW YORK AND VICINITY,
Employer...,
By -----------------------------------------
(Representative) (Title)
Dated-------------------
NEWS SYNDICATE. CO., INC. ] 103
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
Appendix B
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, as amended, 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 giving preference for
employment or in any other manner discriminating against our
employees or applicants for employment in regard to their hire
or tenure of employment or any term or condition of employment
in our delivery department, except to the extent permitted by
Section 8 (a) (3) of the Act.
WE WILL NOT. interrogate our employees or applicants for em-
ployment-concerning their union membership.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of rights guaranteed in
Section 7 of the Act.
WE WILL, upon, application, offer employment, in available
jobs in the delivery department which they are qualified to per-
form, to Milton Ashkenasy, Herbert Friedman, Aaron Harbus,
Bernard Canner, William Gilson, Abraham I. Gordon, Gustave
Karger, John E. Kelly, John McMahan, Benjamin Schechner,
Filmore G. Weber, Henry Sadowitz, and Nathaniel D. Tenen-
baum, without discrimination in regard to their hire or tenure of
employment or other term or condition of employment because of
their membership or nonmembership in NEWSPAPER AND MAIL
DELIVERERS' UNION OF NEW YORK AND. VICINITY, or in any other
labor organization, and without prejudice to their seniority or
other rights and privileges.
We WILL notify the above-named individuals in writing that,
upon their application, we will offer them such employment on a
nondiscriminatory basis.
WE WILL also make whole the above-mentioned individuals for
any loss of pay suffered as a result of the discrimination against
theln..
NEWS SYNDICATE CO., INC.,
Employer.
By ------------------- -----------
(Representative ) ( Title)
Dated --------------------
1104 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
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
STATEMENT OF THE CASE
Between October 24, 1949, and January 13 , 1950 , charges of unfair labor prac-
tices were filed by the individuals named in the caption against Newspaper and
.Mail Deliverers ' Union of New York and Vicinity , the Respondent Union, and
News Syndicate Co., Inc., the Respondent Company . Upon these charges, the
General Counsel of the National Labor Relations Board caused the cases to be
consolidated, and his complaint to be issued against the Respondent Union and
the Respondent Company on August 25 , 1950 , alleging violations by the Union
of Section 8 (b) (2) and 8 (b) (1) (A), and by the Respondent Company of
Section 8 (a) (3) and 8 (a) (1) of the National Labor Relations Act, 61 Stat. 136.
Copies of the complaint , the charges , the order of consolidation , and notice of
hearing of said complaint , were duly served upon both Respondents , and all the
complainants.
The consolidated complaint , as amended . at the hearing, alleged that since on
or about April 24, 1949 , the Respondent Union has caused , and/or attempted to
cause, Respondent Company to discriminate against its employees and prospective
employees in regard to hire, tenure . of employment, and other terms or conditions
of employment , by forcing and requiring , and/or attempting to force and require,
Respondent Company to give preference , in its delivery department , to members
of Respondent Union over nonmembers thereof . The complaint further alleged
that the Respondent Company since on or about April 24 , 1949 , gave preference,
and continues to give preference, to members of Respondent Union with regard
to hire , tenure , and terms or other conditions of employment in its delivery de-
partment over persons who were not and are not now members of the Respondent
Union for the reason that said persons were not members of said Union.' Both
Respondents filed answers to the complaint denying the commission of any unfair
labor practices.
Upon due notice, a hearing was held at New York, New York , on various dates
between October 31, 1950 , and January 23, 1951 , before the undersigned Trial
Examiner . The General Counsel , both Respondents , and some of the complain-
ants as indicated beneath the caption , were represented by counsel , and partici-
pated in the hearing . Full opportunity to be heard , to examine and cross -examine
witnesses and to introduce evidence bearing on the issues was afforded all parties.
Respondents ' motions to dismiss the complaint , made during the course of the
hearing, are disposed of in accordance with the findings that follow' At the
conclusions of the hearing , the parties were afforded opportunity to argue the
issues orally and to file.briefs . with the Trial Examiner . Oral argument was
presented by the General Counsel and the attorney for the Respondent Company.
A brief has been received from the General Counsel and has been duly considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following-
' Specifically named as the objects of alleged discrimination were Milton Ashkenasy,
Herbert Friedman , Aaron Harbus , Bernard Canner , William Gilson , Abraham I. Gordon.
Gustave Karger , John E . Kelly, John McMahan , Benjamin Schechner, Edwin J . Thornton,
Filmore G. Weber, James R. Winners, Henry Sadowitz, and Nathaniel D. Tenenbaum.
'-All of General Counsel 's Exhibits 14, 15, 28 , 29, and 31 , on which rulings were reserved
at the hearing, are received in evidence.
NEWS SYNDICATE CO., INC. - 1105
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANY
News Syndicate Co., Inc., is, and has been since 1919 , a corporation duly organ-
ized and existing by virtue of the'laws of the State of New York . At all times
herein relevant ,- it has maintained its principal office and place of business at
220 East 42nd Street, New York, New York , hereinafter called the New York
plant , and a place of business at 700 Pacific Street, Brooklyn , New York , and has
been continuously engaged at said plants in the printing , publication , sale, and
distribution of the newspapers known as Daily News and Sunday News. During
'the year ending December 31, 1949, Respondent Company caused to be purchased
and delivered to its New York plant, newsprint , ink, zinc, and other materials
valued in excess of $1,000,000 , of which approximately 90 percent was transported
to.said New York plant in interstate and foreign commerce from States of. the
United States other than the State of New York , and from foreign countries.
Respondent Company utilized, and continues to utilize , national and interna-
tional news services , features , and photographic services which make use of
interstate commerce and communication . During the same period , Respondent
Company published , and continues to publish , in its publications , advertising at
a rate in excess of $1,000 ,000 per annum , a substantial portion of which consists of
national advertising . Respondent . Company during said period published, sold,
and distributed daily in excess of 2,000 ,000 copies of the Daily News, approxi-
mately 16 percent of which was, and continues to be, sold and distributed outside
the State of New York and has published, sold , and distributed on Sundays in
excess of 4,000 ,000 copies of the Sunday News, approximately 50 percent of which
was, and continues to be , sold and distributed outside of the State of New York.
Sales of its publications were, and continue to be, at a rate in excess of $1,000,-
000 per annum. By reason of the foregoing facts, I find that News Syndicate Co.,
Inc., is engaged in interstate commerce.
II. THE LABOR ORGANIZATION INVOLVED
Newspaper and Mail Deliverers ' Union of New York and Vicinity is a. labor
organization within the meaning of Section 2 (5) of the Act. .
III. THE UNFAIR LABOR PRACTICES
A. Background
As is apparent from the preceding statement of the case , this proceeding arose
out of the hiring practices indulged in by the Respondent Company, hereinafter
referred to as the,News, for manning its delivery department, and the activities
of the Union in connection therewith.
During all times relevant herein, and for many years prior thereto , the leading
newspapers of Metropolitan New York were associated as, and represented by,
the Publishers ' Association of New York for the purposes of collective bar-
gaining with the employees of said publishers . In addition to the News, the
Association included , among others , the New York Times, the Herald-Tribune,
the Journal -American, the Mirror, the World -Telegram , the Post, and , until
its merger with the World-Telegram in January 1950, the Sun'
a After the hearing In the instant proceeding closed, the Board rendered its decision in
Newspaper and Mail Deliverers' Union of New York and Vicinity, Hearst Consolidated
Publication Inc. et ale, 93 NLRB 237, and Newspaper Mail Deliverers' Union of New
York and Vicinity, Joseph Rizzo, et al., 93 NLRB 419. The Union in the instant proceeding,
was a Respondent in both cases. Both involved the illegality of hiring practices imposed,
1106 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
In 1948, and for a long time prior thereto, many of the employees in the
delivery departments.of 'the, various metropolitan papers were organized as
the Respondent Newspaper and Mail Deliverers' Union of New York and Vicinity,
an unaffiliated labor organization, hereinafter referred to as the Union.
The function of the delivery department in these publications is to handle
newspapers coming from the presses and to convey them afoot or by truck, to
various delivery points, from which they are either directly, or ultimately, dis-
tributed to readers. Partially because, the size of, and demand for, newspapers
is not constant and stable, the,manpower needs in the delivery departments of
'the publishers vary from time to time. A reservoir of labor to fill these peak
and temporary demands. is therefore necessary. At the same time, there is a.
minimal. expectancy of employment every day. This results in a number of
regular jobs, known as "regular situations," assigned permanently to certain
individuals on a 5-day week basis. In addition to regular situation holders,
there are two other categories of delivery department employees: regular sub-
stitutes and extras. Regular substitutes are employees who have completed
A "5 x 5"; that is, have worked in a particular shop 5 days a week for 5
consecutive weeks, thereby acquiring. certain promotional, hiring, and other
prerogatives. Those who are not regular situation holders, or regular sub-
stitutes, are known as extras.
Regular substitutes and extras constitute the extra labor force from which,
on a day-to-day basis, they are assigned to whatever jobs may be available.
They are hired from what is known, in the trade as a "shape-up." At appropriate
hiring periods during the evening, they present themselves at the plant and sign
the "shape," following which, the supervisors make selections from among them.
The News generally- had two shapes, one at about 7 p. in., another at about
11 p. in.; on week ends the number of shapes was increased to three.
For a number of years the Union has-bad collective bargaining contracts with
the metropolitan newspapers, including the News, on a multiple-employer basis;
the Publishers' Association acting as the bargaining agent of the contracting
publishers. The latest of those contracts was executed on October 25, 1948,
effective to October 24, 1950. It was preceded by a contract effective July. 17,
1945, which expired on July 16, 1948. Under the 1945 contract, and for some
years prior thereto, the Union agreed to furnish competent workmen at regular
rates in sufficient number as the publishers required. In the event the Union
failed to furnish such men promptly, the publishers were authorized to employ
such men as they were able to obtain, provided.that :
and sought to be Imposed, by the Union, which practices were similar, If not Identical, to
those Involved herein, the first at the Journal-American, the second at the Herald-Tribune.
Indeed, in the instant hearing, the parties stipulated into this record approximately 1,100
pages of testimony in the Journal-American and Herald-Tribune proceedings. This evi-
deuce deals, in substantial part, with the negotiations carried on by the Publishers' Asso-
ciation and the Union for the negotiation of a new contract to follow the expiry of a
closed-shop agreement between the parties on July 16, 1948, the further negotiations
between the same parties having for their purpose the interpretation of the subsequently
executed contract covering the period October 25, 1948, to October 24, 1950, and the con-
duct of the Union following the execution of said last mentioned contract. Trial Examiner
Charles Schneider heard -both the Journal-American and Herald-Tribune cases and made
extensive findings of fact iil both relating to the above subjects. Insofar as. these findings.
Pertain to the afore-mentioned subjects, they were adopted by the Board in the reported
cases just cited. Having given Independent consideration to this incorporated testimony
insofar as It Is competent and relevant to the instant proceeding, and being In agreement
with the excellent analysis thereof made by Trial Examiner Schneider and his findings
with reference thereto, I have taken the liberty of making extensive use of the language.
contained in his findings.
NEWS SYNDICATE CO., INC. 1107
if the men so employed are not members of the Union they shall be em-
ployed only so long as the Union does not furnish members of the Union
willing and qualified to take their places ; but any man so employed shall
,be allowed to complete his day's work. Nothing herein contained is to be
construed 'as conferring of power upon any Publisher to fill a regular situa-
tion with anyone not a member of the Union..
Seniority with the particular employer was, contractually, and in practice,
the basis for promotional and hiring priority.
Due to the Union's inability to supply adequate manpower, a. number of
nonunion men found it possible over a period of years to secure fairly regular
employment from the shapeup. The' provisions of the contracts, however, pre-
cluded them from acquiring any seniority, subjected them to displacement at
any time by union men, however recent the latter's appearance on the scene, and
denied them any right to hold a regular situation. Substantial distinctions
in employee tenure and status was therefore based purely on the fact of union
membership or nonmembership. No contention is made, however, that this
arrangement was in any respect illegal prior to July 17, 1948.
At the same time, union membership was difficult to acquire ; generally passing
only by descent and being largely entailed. For some years the membership
list has been frozen and substantially only. sons of members and employees in
newly organized shops are eligible to fill any vacancies.
The provisions of the 1945 contract were presumptively legal under the Wagner
Act of 1935; at least no contention is made here that they were illegal. Though
the Labor-Management Relations Act of 1947, effective August 22, 1947, curtailed
continuance of the requirement for hiring preference based on union membership,
Section 102 of the latter statute preserved, for the duration of the contract, the
legality of existing contractual arrangements valid under Section 8 (3) of 'the
Wagner Act. Presumably, the 1945 contract due to expire July 16, 1948,. was.
saved by this provision. In any event it is not contended here that preference
accorded to union members was in any way illegal prior to July 17, 1948. But
it is plain that any such preference accorded after the latter date, other than
that inherent in the legitimate application of a "union shop" clause, would be
in. violation of the statute; and here the facts do not disclose that such a clause
was the basis for, or is a defense to, any action taken by either Respondent .4
Briefly, the issue here is whether the Union caused, and the Company accorded,
illegal preference to union men after April 24, 1949, the critical period alleged
.in the complaint.
B. The 1948 contract
The 1945 contract expired on July 16, 1948. Negotiations between the Union
and the Association for a renewal began several months prior to that date.
However, except for an agreement reached between the negotiators sometime
in July which was rejected by the union membership, the negotiations were
unsuccessful until October 25, 1948, when a new 2-year contract was signed.
During the period between July 17 and October 25, 1948, the publishers, in-
'eluding the News, continued to maintain the old hiring practices, namely, absolute
preferment of union men, without change.
4 The 1948 contract, referred to hereinafter , . provided that employees should become
members of the Union 30 days after employment.. The execution of such a clause was
authorized by the employees as required ' by the Act. These facts, however , are not of
critical significance on the instant issue.
961974-52-vol. 95-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 4 of the new contract provided, in part, as follows :
SENIORITY
4-A. As of the effective date hereof, all employ ees, including foremen and
assistant foremen, holding regular situations with each newspaper signatory
hereto shall be arranged in. a seniority- and priority list in accordance with
their length of service with such newspaper.
In like manner, all regular substitutes connected with each particular
newspaper shall be listed in the order of their length of employment.
All other persons seeking employment with the paper shall be classified
as extras and shall be listed as such in order of original employment. No
man's name shall remain on the list of extras, however, if five weeks have
elapsed since the date of his last employment.
When the manpower needs of the office cannot be filled from regular em-
ployees, from available substitutes, or from extras entitled by former em-
ployment to perform the work the foreman shall select necessary men from
the following categories in order, providing such men are familiar with the
work of the available opening :
First : Former regular situation holders.
Second : Other persons who have worked in the delivery department.
Third : Persons with experience in other delivery departments in the
Metropolitan area.
Fourth : Persons concerning whose competency the foreman has no reason
to doubt, but this discretion by the foreman shall not be exercised as a
means of discriminating against any person because of his membership or
non-membership in the Union.
Following paragraphs of section 4 provided for the filling of regular situations
on the basis of seniority from among, first, regular situation holders, and second,
substitutes ; and for layoffs among regular situation holders in reverse order
of seniority standing.
Though this section does not explicitly state that substitutes and extras were
to be hired from the shape in the order of their standing on the seniority lists,
this was the contemplation of the section and the parties, and it was so construed.
C. The negotiations for the 1948 contract
During the early part of the negotiations, the union representatives took the
position that hiring priority among substitutes and extras should be on the
basis of seniority in the industry, rather than on a plant basis, and that the
publishers should notify the Union of any manpower needs. These provisions
were not, however, adopted. The Union likewise wished the contract worded
in. such fashion as to insure preference to union members wherever possible.
As to this, the Publishers' Association took the position that hiring practices
had to conform to the Taft-Hartley Act, but that the Association was willing to
accord the Union every permissible benefit under the Act.
The prior contract had consistently referred to "union members" in defining
its application. The substitution of the word "employees" for "union members"
in the 1948 contract, at the instance of the Association, caused concern to the
union representatives. As the negotiations progressed and the limitations im-
posed by the law became clearer, the position of the Union's negotiators with
respect to preferment of union men, at first strongly stated, moderated, with the
result that by mid-July 1948, the negotiating representatives came to agreement
on the terms of the contract. When the agreement was submited to the union
NEWS SYNDICATE CO., INC. - 1109
executive board and the membership, however, it was rejected. The evident
and substantial reason for the rejection was the shift in emphasis and rights-
inherent in the substitution of the word "employees" for the words "union
members" in the beneficial sections. of the contract. In sum, the objection was
to any substantial reduction of the exclusive preference previously accorded
union members. In addition, the Union insisted on the right to discipline fore-
men, a demand which the Association resisted. Further negotiating sessions
were begun late in July 1948, this time with the Union's executive council in
attendance, who brought in Professor Milton Handler for advice. Handler
assured the apparently suspicious executive council that there was no "shenani-
gan" and that the agreement was "a good contract and the best one they could
hope to get under the Taft-Hartley Act."' Nevertheless, negotiations continued
and it was not until October that the contract was finally ratified by the Union.
D. The publishers' attempts to establish seniority lists
As has been noted, section 4-A of the 1948 contract contemplated the estab-
lishment of hiring lists of extra men "in order of original employment" by the
particular publisher, with provision for dropping the name of anyone who had
not received employment during the past 5 weeks. It is thus seen that the 1948;
contract, as had the prior ones, despite the industry-wide bargaining pattern;,
incorporated a system of seniority by shop, and not industry, employment:.
Moreover, seniority and precedence on the lists was to be determined, according-
to the contract, by the date of "employment." The materiality of these factors;
will be apparent from later discussion.
On October 26, 1948, therefore, the Association and the Union met to discuss;
the compilation of the hiring lists. The categories of regular situation holders
and regular substitutes appeared to present no substantial problem. Difficul-
ties arose, however, regarding the composition of the extra list. Since the con-
tract provided that nonemployment over a 5-week period resulted in. elimination
from the list, the Association suggested, and there was apparent agreement at
the October 26 meeting, that the initial list should contain the names of all,
persons who had worked in the 5-week period preceding October 25, 1948, the
effective date of the contract.
On the fdllowing day, however, basic disagreement arose which ultimately
led to the issuance of the present complaint and the unsettlement, to the time of
the hearing, of hiring conditions in the delivery departments of all the major
New York newspapers. On that day, October 27, 1948, the Union notified the
Association that it disapproved the method of extra listing determined upon at
the October 26 meeting. The reason for this disapproval was that the con-
templated listing "would result in the inclusion on the extra list of a significant
number of nonunion men."
1. October 29, 1948-the refusal to work at the Herald-Tribune',
Within a day or two after the execution of the October 1948 contract, the
Herald-Tribune posted hiring lists in accordance with section 4-A of the con-
tract. On Wednesday, October 27, 1948, Leon Braunstein, a union business
agent, objected to the presence of a number of nonunion men on these lists-
Braunstein further said that nonunion' men could have no seniority rights-
antedating July 17, 1948. In addition, Braunstein asked that several recently
hired union members be given positions on the extra list higher than their
5 The quotations are from the testimony of William Mapel , vice chairman of the Pubs-
lishers' Association.
1110 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority entitled them. Braunstein further said that the Tribune was the
only paper which had proceeded to post lists, that the Tribune's work force
was "disturbed over the introduction of the lists," and that he "could not
be around the Tribune all night every night to calm the men down." Braunstein
concluded with the statement that "somebody was going to sue" the Tribune and
that the Tribune "to keep everything in the family . . . might as well avoid
being sued by union men."
Nothing more untoward occurred at the Herald-Tribune on that or the follow.
ing night. Friday and Saturday are the heavy nights at the Tribune, in prep-
aration for the Sunday edition. On Friday night, October 29, 1948, eight regular
week-end shapers, all union men, refused to go to work when called from the
shape line, thus delaying operations. The reason for the refusal was that non-
union men were higher on the hiring lists than they. Spokesman for the men
was Frank Cancillero, chapel chairman a The Herald-Tribune finally resolved
the dilemma by withdrawing the hiring lists. for "further study," and hiring
was then resumed on the old basis of union preference. During the discussion,
It was indicated that unless .the lists were withdrawn, the eight men would also
refuse to work on Saturday night.
No other newspaper attempted to follow the Tribune's example and post hiring
lists. On the following Monday, protracted negotiations began between the
Publishers' Association and the Union to solve the problem.'
2. The November 1,1948, meeting
A meeting was held on November 1, at which the union attorney, Samuel
Duker, suggested that a proper interpretation of the contract required the listing
on the original extra list, in the order of original employment, of all persons who
had ever worked in the delivery departments of the publishers ; and that all who
did not work in the 5-week period from October 25, 1948, should then be elimi-
nated. This suggestion became known as the "Duker formula" and the "Back
to Methuselah" theory. The Union's position on this suggestion was thus stated
by Vice-Chairman Mapel of the Publishers' Association in his testimony:
[The] point being, and not being concealed, that it would be a very simple
thing to have a list of employees made up or created to include a great many
men, a great many union men who perhaps had worked only one, or maybe
only a dozen times, or maybe a number of years, but many, many years ago,
it being the position of the Union that by taking advantage of the language
of the contract in that respect, and by listing men according to the date of
their original employment, obviously you would get a great mass of union
men at the top of the list and any nonunion men, who might have worked
and who might have crept into the so-called industry in the last few years
would be well down on the list, since the hiring would be done from the top
of the list to the bottom, then and I quote [the Union] : "The problem of the
nonunion man would be solved."
The compilation of such a list going back many years presented a formidable
problem.
The position of the Union at this November 1 meeting, as related by Mapel,
was that "we are going to take every step we can to. have union men go in
ahead of nonunion men."
n The equivalent of shop steward.
s The findings as to the events at the Herald -Tribune are based on the testimony of John
Bogart , labor relations executive at the Tribune.
NEWS SYNDICATE CO., INC. 1111
3. November 2, 1948
At another meeting on the following day, it was ascertained that the effect on
union men of the proposed new hiring order was greater than had at first been
supposed. Thus, it was now realized that outside card men who regularly
shaped for employment on certain nights were subject to "bumping" by nonunion
men of senior shop standing. This situation caused some concern to the Tribune,
for example, which was apprehensive that it might lose some regular Saturday
night-extra shapers. In addition it was also realized that some nonunion men
were sufficiently senior to compete for regular situations. It was the extra list,
however, which provided the major problem. The publishers suggested a system
of daily hiring lists based substantially on regularity of employment on each
particular day, but this got nowhere when it became apparent that such a system
would also include a significant number of nonunion men. At this point, Polle-
grino, union business agent, stated the Union's position to be that no nonunion
men could go to work before union men under the contract, for the reason that
nonunion men had no seniority antedating the expiration date of the prior con-
tract. To this the publishers demurred, concurrently suggesting that Professor
Paul P. Hays, impartial chairman under the contract, be called in informally. A
meeting, with Chairman Hays present, was arranged for November 15,1948.
4. November 15, 1948
At the meeting on this day, the suggestion was made, either by Chairman Hays,
or by Samuel Duker, union counsel, that industry-wide rather than plant
seniority might be a proper criterion for hiring priority, but apparently the
proposal was not seriously discussed. Further suggestions, designed to meet
union objections, were made with respect to the compilation of daily hiring lists,
but the Union declined to take a definite position without further exploration.
As Mapel quoted the Union, its representatives said, "we are not interested in
this thing as an academic matter. We want to know what will happen to our
men. We want to see these lists." As a result the• Herald-Tribune was desig-
nated to compile a trial list based on its records in order that the conferees might
have something concrete to visualize.
5. November 17, 1948
At a meeting on November 17 the Tribune presented the test list, on which the-
nonunion men were identified. The Union objected to the list because of the
presence of high ranking nonunion men and reiterated its position that they could
have no seniority antedating July 17, 1948. After study, the Union further an-
nounced that it could not commit itself until a similar test list was made up at
the Daily News, the largest employer of union men. The publishers objected to
any further delay, pointing out that unfair labor practice charges had been filed
by nonunion men against the Tribune. After some further discussion, Publishers'
Association Vice-Chairman Mapel said that he was going to lay the entire matter
before Charles Douds, the Board's Regional Director, and invited the union
representatives to join him in so doing. On November 19, 1948, union and
publisher representatives met with regional office officials.
6. January 1949; the Union changes its leadership; the entrance of the
Adjustment Board
In late November, or early December 1948, union officers were elected. The
incurpbents were largely swept out of office. The new officers, however, could
not act until January 1 , 1949 . As a result , no meetings were held in December.
1112 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD
.In the interim, the publishers, as Mapel put it, merely "rocked along." With the
induction of the new officers on January 1, 1949, the Union's position became more
militant. Among the new union officers were Joseph Simons , president, and
William Walsh and Harry Waltzer, business agents.
On January 14, 1949, the publishers, including Ivan Annenberg, circulation
director of the News, and the, new union officers met for the first time, with
Chairman Hays present. The Union announced that all the plans previously
proposed were unworkable, but when asked for suggestions, stated that it had
none to offer. At this meeting, however, it became evident that the Union had
determined to make a firm stand for the preferment of union men. Union
President Simons made the following statements, not necessarily consecutively,
to the publishers : "The Taft-Hartley Act, in my humble opinion, does not apply
whatsoever . . . Until the law is interpreted, nobody knows ; if you need extras
the Union will supply them ... I serve notice in the meantime, union men
are going to work before nonunion men ... you have got to pay somebody,
no you might as well pay union men . . . I am not interested in seniority. This
contract was made for members of this union ... If nonunion men have a
quarrel, let them go to the government ... you do the hiring. You do the
violating if there is any violating."
The contract provided machinery, known as the Adjustment Board, for the
determination of disputes not resolvable by negotiation. The board consisted
of two representatives of each party. If the dispute was not resolved there,
the impartial chairman was added. Decisions of the five-man board were
final and binding. At the January 14, 1949, meeting, publisher's Vice-Chairman.
Mapel invited the Union to join in submitting the dispute to the Adjustment
Board. Not receiving an affirmative answer , the publishers invoked the
adjustment machinery unilaterally.
Several Adjustment Board meetings were held in the latter part of Janu-
ary 1949, along with a conference with officials of the Board's Regional Office.
During these sessions , union representatives told the publishers several times,
in substance, that unless union men were hired, the papers were "not going to
be delivered." At the insistence of the Union, the publishers supplied the
Union with lists of regular situation holders, regular substitutes, and of all
extras who had worked in the 5-week period from mid-December 1948 to late
January 1949 ; with the nonunion men so designated. Nevertheless, when the
.parties met again in late February, the union representative indicated that
they had not studied the lists much, if at all. At this meeting the Union made
a number of proposals , including one to the effect that the publishers secure
all manpower through the Union. Meetings continued through the month of
March in an effort to arrive at a mutually satisfactory hiring procedure, without
success.
Finally, in mid-March, apparently convinced that there was no prospect of
bilateral solution, the publishers decided to set up hiring lists unilaterally,
listing-employees on the basis of seniority without regard to union affiliation, and
to put them into operation.
7. The May 1949 strikes
The compilation of these shop seniority lists was completed by May 11, 1949,
and on May 16, they were posted in the various newspapers. In several shops,
notably the News, the Journal-American, and the Herald-Tribune, they were
removed ; at the Herald-Tribune, admittedly by Business Agent Walsh.
On May 17, 1949, the publishers began to hire according to the lists. This
action evoked strikes and threats of strikes, by union officials at various papers.
NEWS SYNDICATE CO., INC. 1113
Business Agent Walsh made repeated threats of strikes at the Herald-Tribune
if that paper attempted to hire from the lists, saying that he would "close down
the plant," and on May 19 the Union there engaged in a slowdown. On the
same day the Union struck the Journal-American to compel the hiring of union
men before nonunion, without regard to their standing on the hiring lists.
This stoppage lasted some 12 minutes and was terminated when the Journal-
American capitulated and put to work six union members of junior seniority
whom Union President Simons demanded be hired.
At the request of the publishers, impartial Chairman Hays had been standing
by since the night of May Y8 to meet anticipated trouble. On May 19 the publish-
ers invoked the five-man Adjustment Board. After discussion of the situation,
a majority of that Board (Chairman Hays, Union President Simons, and
Business Agent Walzer) decided, in substance, to reinterpret section 4-A of the
contract . Chairman Hays announced the decision to the parties , saying that
the board would issue a new and temporary hiring formula on May 23, but added
that until it was prepared, the existing hiring lists would continue to be effective.
The announcement that the lists would remain in effect in the interim period
evoked a storm of protest from the union representatives , who declared that
the publishers' unilateral action in posting the lists had created "chaos" in the
industry . When Business Agent Walzer attempted to calm Business Agent
Walsh , the latter told Walzer that when the men "walked out" Walzer would
"have to be responsible for it." Union President Simons announced that he was
now-dissociating himself from the award . He admitted having ordered the
stoppage at the Journal-American that day and threatened another strike if
nonunion men were put to work there . Business Agent Walsh said, referring
to the strike at the Journal that "If I violate [the no-strike clause in the contract]
It won't be for any 8 [sic] minutes. It will be for all night." With reference
to the News , Walsh said : "I don ' t know how long I can hold out . It is coming.
The first night I get three drinks inside of me it is coming." Union Vice-President.
Walters declared that the decision nullified the contract , a position which Union
Attorney Duker observed was erroneous . Simons said that he would not be
responsible for what happened . that night and the conference terminated, as
Mapel put it, in a "chaotic state."
8. The May 23 award ; the abandonment of hiring lists
On May 23, 1949, the Adjustment Board , with thepublisher members dissenting,
banded down what became known as the "interim award." This award revoked
the outstanding hiring lists , and in effect changed the contract criteria for hiring
preference from length of plant service , substantially , to length of employment
in the industry.. As described by the parties, it substituted industry seniority
for plant seniority as the basis for hiring order . In addition, it gave the foremen
in'eachiplant final authority to determine qualifications for employment. Fore
men were members of the Union and covered by the bargaining contract.
The text of the majority award is as follows:
1. The lists now posted by the various publishers shall not be used as
the basis for hiring and are to be withdrawn immediately.
2. Effective immediately the foreman of each delivery room in hiring
extra men shall give preference to those applicants for employment who have
the most complete claim to, and are best qualified for the work, on the
basis of length of service, and regularity and continuity of employment in
the industry . In administering this clause the foremen shall use their best
efforts to observe the spirit and letter of this provision . Where a dispute
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arises the foreman's determination shall prevail, but any case in which the
foreman willingly and knowingly discriminates may be pressed as a grievance
and any applicant against whom such discrimination in hiring was exercised
shall be entitled to payment for work done. Perseverance in discriminatory
hiring after notice may also be made the basis for imposition of a penalty.
3. The Publishers and the Union shall immediately undertake in joint
conferences to work out hiring lists which will regularize the principles set
forth in the foregoing paragraph.
It was recognized by all that this formula would result in priority for many
union members, but as Chairman Hays observed in an opinion accompanying the
award, that consequence was a "fortuitous result of the existence of a perfectly
legal closed shop," and not illegal.
Despite the preferred position accorded many union members under the in-
terim award, the Union continued to oppose any hiring of nonunion men before
union members. On June 1, 1949, when the foreman at the Herald-Tribune, pur-
suant to the authority granted him in the interim award, adjudged that certain
recently employed union members were subordinate ' in seniority to some non-
union shapers, Walsh called a strike and the union members walked out. The
Tribune then put the union members to work, under protest.
9. The point system ; its abandonment
In the meantime, the Adjustment Board proceeded to draft a final award to
replace the interim award ; a task finally completed and announced on June 30,
1949. This award spelled out a detailed and complicated procedure for the
maintenance of hiring lists. In essence, it continued the industry-wide seniority
concept of the interim award but provided for ranking on the extra list by a
system of numerical ratings, which became known as the point system. Under
this system, employees were awarded points of differing values for service in the
shop, in the industry, or substantially equivalent employment. Thus, for ex-
ample, service in the particular shop after April 1, 1949, was given three;_ times
the value of service prior to March 31, 1946; and service in a shop, twice the
value of service in other shops. In addition, the award lumped regular sub-
stitutes and extras on the extra employment list. The union members of the
Adjustment Board dissented from this award.
Following the issuance of the June 30 award, Chairman Hays resigned and
was succeeded by Chairman Feinberg. The latter proceeded to set up lists in
accordance with the award. These were finally completed and went into ,effect
on September 14, 1949, over protests by the Union that they contained errors. At
the News, insofar as the listed men were identified in the record herein as Union
or nonunion, the list showed, generally speaking, that nonunion men had higher
point ratings than union members. The Union then filed an action in the New.
York courts to set aside the award, in which action it ultimately succeeded.
The ground asserted for the court action was that the Adjustment Board has
exceeded its authority in lumping regular substitutes and extras on the same
hiring list. The lists remained in use only about 5 days. They were-set aside
because of union objections under the following circumstances.
On September 19, 1949, the publishers and the Union met to discuss the prob-
lems raised by the Union's court action and its protests against the use of the
point lists. The Union raised three objections : (1) That the lists improperly
placed regular substitutes and extras on the same hiring lists; (2) that there
were errors in computation ; and (3 ) that provision must be made for giving
employment to employees of The Interborough News Company, which had ceased
NEWS SYNDICATE CO., INC . 1115
business . Impartial Chairman Feinberg pointed out that there was provision
for ironing out individual inequity or error. 4
Union President Simons then threatened to strike the papers that night if the
lists .were used. AS Mapel testified, Simons and Business Agent Walsh made
the following statements, among others :
SimaNS. If the publishers do not get into line, wewill take the law into
our own hands. I am going to put union men on tonight.
* * * * * * *
Everything ain't going to be all right. We want our pound of flesh before
the non-union men. If it has. got to come to a fight, we will fight, we got a
good army!. There ain't going to be any union men turned away tonight,
and I am giving the orders.
* * * * * *
WALSa. That is all I want to hear Joe. You give the order tonight, I will
walk the men tonight.
Simons. You have my order. If a paper wants a man; the paper should
call the union : I am telling Walsh in front of all of you that union men go
to work tonight . . . you better be prepared tonight.
If you think you are going to work tonight, you got rocks in your head.
* * * * * * *
If the union is in wrong with the Taft-Hartley Act let Washington get
us on the ball !
* * * * * * *
I am putting you on notice that those bundles won't have feet on them
tonight, and that is that.
Chairman Feinberg said that any individual who claimed prejudice because
of his standing on the list would be interviewed and any injustice rectified.
He further warned the union officials that he would enforce the -contract's no-
strike clause to the hilt. Nevertheless Business Agent Walsh said, Mapel
testified, that he was "going to the shops tonight to see that no non-union men
went to work, if a union man did not have work," "No union man will go away
without a job."
Faced with a threat of shutdown, the publishers suggested that the Union file
a formal grievance and that the Adjustment Board set aside the point system
and return to the interim award pending further study by Chairman Feinberg.
This was done, and on the same evening, the Adjustment Board set aside the
June 30 award and reinstated the interim award.
E. Events at the News
The News posted the shop seniority list provided by section 4 (B) of the
October 25, 1948, contract on May 16, 1949. It was promptly removed, surrepti-
tiously., It was posted again, at least once, with the same result e
On May 11, 1949, the day the compilation of the lists was completed, William
Herman , foreman of the delivery department at the News, had a conversation
with Walsh in the delivery department of the New York plant, in the presence -of
8 As heretofore pointed out , similar lists received similar treatment at the Journal-
American and the Herald Tribune. Walsh admitted he had removed the list at the Herald
Tribune.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph Schiffman, city circulator of the News. During this conversation Walsh
told Herman that he wanted the union men to go to work regardless of whether
they worked at the News before or not, otherwise, he would "pull the shop."
Walsh further told Herman that if the latter didn't hire union men on that basis,
he would "subpoena" him before the Union and compel him to face charges before
that organization. Herman at that time was, and for 28 years had been, a member
of the Union, and was familiar with article 10, section 5 of the Union's consti-
tution and bylaws which provided as follows :
Foremen of all districts under the jurisdiction of this Union shall at all
times select members of this Union to fill vacancies who are and have been
recognized as steady or regular subs. When a vacancy occurs, other than
specified in this Section, it shall be the duty of the foreman to notify the
'Union headquarters of the extra man or men required. On failure to do
same and upon conviction of the first offense, the penalty shall be no less
than $50; second offense no less than $100; and third offense expulsion
from the Union.
Walsh also told Herman that he would not allow any nonunion men who shaped
since he took office in January 1949 to be put to work even if all union men had
been assigned and additional work was available.
On May 16, 1949, Walsh had a further conversation with Hirsch Kaplan, then
assistant foreman at the New York delivery department, and also a' member of
the Union. Walsh insisted that Kaplan call to work B. Gordon, Percy Janover,
and Powers, all union men, but none of whom had ever worked at the News
before. Kaplan declined to do so and instead called nonunion men to work who
had previously been employed at the News. At about 8: 20 p. in., the three union
men returned with Walsh and the latter made inquiry as to why the union men
had, not been called to work. Not receiving a satisfactory explanation, Walsh
asked Kaplan to surrender his union card, and informed the latter that he would
"pull the shop."
Without detailing the testimony, it is clear from the evidence that up to Novem-
ber 8, 1949, the order of hiring substitutes and extras was union men first, and
then if additional work was available, nonunion men. On November 8, however,
several nonunion men were called to work while several union members who had
shaped were left without employment. On November 9, some nonunion men
went to work ahead of several union members.
During the same evening, November 9, 1949, Walsh approached Max (Mike)
Paul, superintendent of delivery for the News both at the New York and Brook-
lyn plants, and demanded that Paul put union men to work ahead of nonunion
men, regardless of "what or who they were." At about the same time, Paul
heard Joseph Simons, president of the Union, tell the men who attended the
shape that night that "nonunion men are not going to work ahead of Union men."
During the same evening, Walsh informed Ivan Annenberg, director of circula-
tion for the News and chairman of the negotiation committee of the Publishers'
Association, that if nonunion men went to work ahead of union' men that "there
would be no work done . . . [and that] he would pull the shop." The con-
ference between Annenberg and Walsh lasted approximately an hour and a half,
but Walsh remained adamant and refused to recede from his demand that all
union men be put to work ahead of nonunion men, regardless of seniority. To
induce Annenberg to comply with his demand, Walsh advised him that he would
indemnify the News against any financial loss it might suffer as a result of such
action. Annenberg replied that under the interpretation, of the contract by
which he was guided, shop seniority would have to govern the selection of extras.
- NEWS SYNDICATE CO., INC[ .1117
Annenberg had another conference with Walsh on November 10, 1949, at ap-
proximately 5 p. m. This conference likewise lasted approximately 11/2 to 2
hours, the substance of which was that Walsh again repeated his demand that
union men be put to work before nonunion men and the threat that if the News
refused, Walsh would shut down the shop. At about 7:30 p. m., Walsh ordered,
and succeeded in causing, a complete work stoppage lasting 1 hour and 28 min-
utes at the New York plant, involving 114 men, and approximately 35 minutes
at the Brooklyn plant, idling 68 men. During that stoppage, Walsh and Sam
Walters, the union vice president, informed Annenberg that the men would not
go back to work unless the News hired the 5 union men that had shaped that
night, and that no work would be done until these men were put to work. The
staff was ordered back to work only when Annenberg capitulated to Walsh's
demands and put the 5 union men to work, men for which the News had no need.
As a result of the work stoppage, the News, in pursuance of a remedy provided
by the October 28, 1948, contract, filed a grievance against the Union with the
Adjustment Board, asking both compensatory and punitive damages for viola-
tion of the no-strike clause of the contract. After a hearing, damages in the sum
of $1,500 were awarded the News.
Further complications and difficulties were added in January 1950, with the
demise of the New York Sun, at which approximately 300 union men were for-
merly employed. Walsh in a conversation on January 6, 1950, told Bogart of the
Herald Tribune that at a meeting of the "Sun chapel on January 5, 1950, the
Sun's displaced union delivery men were divided into groups and assigned to the
remaining papers. He further informed Bogart that no union members were
assigned to the Herald Tribune, but that in any event, that paper could not hire
nonunion men because no other paper could. Bogart inquired what would hap-
pen if nonunion men were hired, and Walsh replied that there would be a
"revolution." He mentioned the News award against the Union in the sum of
$1,500 and said that such a penalty meant nothing to the Union when compared to
"300 starving men." Walsh also said that there would be "murder" at the
Times if the latter insisted on hiring nonunion men, expressed confidence that
the News would meet his point of view and that neither the Taft-Hartley Act,
nor the "interim award," made any difference compared to the dilemma of the
Sun men.
Immediately after the close of the Sun, a large number of union men from
that paper shaped at the News, both in Brooklyn and New York. As a result of
this influx, all of such union shapers went to work. before the nonunion men
whose work was proportionally diminished during the next few weeks. Some
of them took vacations shortly thereafter because they were getting so little work..
On January 14, 1950, certain nonunion employees of the News instituted a
proceeding in a New York State Court against both Respondents, referred to in
the record as Ryan v. Simons, and secured a temporary restraining order direct-
ing the News to refrain from discharging the plaintiffs and ordering the Union
not to interfere with their employment. At the shape on the following evening,
January 15, some nonunion men were called for work before union members.
Walsh was present and, before the shape was completed, ordered the chapel
chairman to pull the shop. There was a work stoppage of 8 to 10 minutes, during
which Walsh and Kaplan, the foreman who had called the shape, retired to an
office. Upon their return to the shape area, all of the union men, some of whom
had been passed over when the shape was first called, were put to work, while
some nonunion men were left without employment.
While the gravamen of the offense charged by the complainants was that they
were completely deprived of employment at the News on a substantial number
1 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-of occasions because of their nonmembership in the Union, the evidence discloses
another practice indulged in by the News, under the same compulsion of the
Union heretofore described.
Most of the complainants, during the critical period herein, shaped both the
early and late edition of the News, except on those comparatively rare occasions
when they were employed on the early, shape. Frequently, however, nonunion
employees with greater seniority were compelled to shape both. early and late
editions in order to secure work on the late shape, while union members with
less seniority were employed on the early shift. This practice continued as late
as November 23, 1950. On.that evening, while the hearing in this proceeding
was in recess, union member Gordon, whose seniority, either shop or industry
wide, did not antedate August 26, 1948, was called to work on the first shape,
while at least four nonunion men with greater shop seniority, who likewise
shaped early, were not called until the last shape.
Conclusions
On the entire record I am convinced and find that during practically all of
1949 and 1950, to the date of hearing, the order of hiring substitutes and extras
in the delivery department of the News, at both the Brooklyn and New York
plants, was union men first, and then, if additional work was available, and
then only, nonunion men.' While there may have been isolated days when this
order was not followed, the overwhelming evidence. compels the finding just
announced.
It does not follow, however, as a matter of course, that by such conduct, the
News violated Section 8 (a) (3) of the Act. Conceivably, that order of hiring
may have been the fortuitous result of circumstances other than mere member-
ship in the Union. Especially is this a distinct possibility in the instant case,
where, for many years, the News operated under a valid closed- shop contract with
the Union. One of the necessary results of that long existing contract was to
bestow varying degrees of seniority upon union members." If the News there-
fore, after the expiry of the closed-shop contract, and the interposition of the
Taft-Hartley Act, gave preference to,employees because of such seniority, it
could not be guilty of unlawful discrimination. Indeed, such preference should
receive commendation as a step forward in the promotion of better industrial
relations between employer and. employees.
On the other hand, Congress, by enactment of the Taft-Hartley Act, has de-
clared that it is against public policy to condition employment upon union mem-
bership alone.31 Accordingly, by Section 8 (a) (3) of the Act, it was made un-
lawful for an employer to indulge in discrimination against his employees be-
cause of nonmembership in a labor organization. To further proscribe such
discrimination, Section 8 (b) (2) of the Act makes it unlawful for a union to
° Practically all of the complainants who took the witness stand so testified . As to the
charging parties who did not testify, it was stipulated that if they "were called upon to
'testify, they would testify as to their own work history and what they observed in essen-
tially the same fashion , [ on direct as well as cross-examination ], as the [ complainants]
already called."
10 Notwithstanding the prior closed-shop contracts , the News found it necessary to
employ additional nonunion help both before and. after the expiry of the last closed-shop
contract on July 16, 1948. It was in this manner that nonunion employees likewise
acquired varying degrees of seniority.
11 As heretofore indicated, we are not here concerned with the "Union-shop" conditions
which may validly be imposed by the proviso to Section 8 (a) (3) of the Act. The facts
do not disclose that such a clause was the basis for, or is a defense to any action taken
by either Respondent.
NEWS SYNDICATE CO., INC. 1119
cause, or attempt to cause, an employer to discriminate against employees be=
cause of such nonmembership.
Our problem, therefore, is to ascertain from all the facts in the case whether
the General Counsel has sustained the burden resting on him to establish by a
preponderance of the evidence (1) that the News, during the period alleged in the
complaint, gave preference in the employment.of substitutes and extras by reason
of membership in the Union, or withheld such employment because the appli-
cants were not members thereof, and (2) that the Union caused, or attempted to
cause, the News to discriminate against its employees because of their nonmem-
bership in the Union.
Consideration of the entire record compels the conclusion that the General
Counsel has sustained the twofold burden described above. Nothing more need
be added to the facts heretofore found to establish that the Union caused, and
attempted to cause, the News to discriminate against the complainants 12 and
other nonmembers of the Union. The strikes by the Union, called and threat-
ened, not only at the News but also at the Journal-American and the Heraldi
Tribune had no other objective or effect. And even before the critical stage was,.
reached, union officials made it crystal clear that they would leave no stone un-
turned to compel the News and the other members of the Publishers' Association
to discriminate against nonmembers of the Union. Thus, notwithstanding that
the Union had agreed, by its written contract, on October 25,1948, that preference
in employment'be awarded on the basis of shop seniority, it notified the Associ-
ation two days later that "it disapproved that method of listing because it would
result in the inclusion . . . of a significant number of nonunion men."
Its subsequent conduct establishes. clearly that it continued to oppose the
criteria established by the contract for the employment of men, not only at the
News, but at,the other metropolitan newspapers, and for the same reason:
And,, though the Union subsequently appeared to agree to a system granting
preference to employees based on industry-wide' experience, that method like-
wise came under its ban when it was discovered that some union members had
less of that type of experience than nonunion members. The only consistent
position ever taken by it, throughout the entire history of its relations .with the
News and the Publishers' Association subsequent to the expiry of the closed-
shop contract, was that union members, regardless of seniority of either type,
be given unconditional preference over nonmembers. Indeed, Walsh told Fore-
man Herman on May 11, 1949, that he would not allow any nonunion men who
shaped since he took office in January 1949 to be put to work at the News even
if all union men had been assigned and additional work was available.
While the evidence discloses that the News appeared to be desirous of estab-
lishingstandards of- employment that complied with the law,12 the conclusion
is inescapable that it failed to do so.- Apparently "faced with the possibility
of shut-down, [The News] capitulated and discriminated. Economic exigencies,
intimidation, or the compulsion of circumstances are, however, no defense to
unfair labor practices. N. L. R. B. v. Gluck Brewing Company, 144 F. 2d 847
(C. A. 8) ; N. L. R. B. v. Star Publishing Co., 97 F. 2d 465 (C. A. 9) ; N. L. R. B.
v. Hudson Motor Car Co., 128 F. 2d 528 (C. A. 6) Allis-Chalmers Co. v. N. L. R. B.,
162 F. 2d 435 (C. A. 7) ; Guy F. Atkinson Co., 90 NLRB 143; General American
Aerocoach Corp., 90 NLRB 239." Hearst Consolidated Publications, Inc., 93.
n None of whom were members of the Union.
12 However , in one respect at least , it lent its voluntary cooperation In making effective.
the discrimination charged In the complaint , by posting separate shape sheets for union
members, and another for nonunion members. By thus interrogating its employees con-
cerning union membership , the News violated Section 8 ( a) (1) of the Act.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 237. By hiring union members in preference to' the complainants and
other nonunion employees solely by reason of union membership, and by hiring
union members when it had no need for their services , the News has discrimi-
nated in the hire and tenure of its employees thereby encouraging membership
in the Union. By such conduct, the. News not only violated Section 8 (a) (3)
of the Act,- but thereby interfered, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act in violation of Section 8
(a) (1) thereof.1f
By threatening to strike, and by striking, the News, the Herald-Tribune, and
the Journal-American, and by threatening Foreman Herman for declining to
give unlawful preference to union members, the Union has caused, and attempted
to cause, the News to discriminate against employees in violation of Section 8
(a) (3) of the Act, thereby violating Section 8 (b) (2). By the same conduct,
the Union restrained and coerced employees in the exercise of the. rights guaran-
teed in Section 7 of the Act and thereby violated Section 8 (b) (1) (A)
thereof.16
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in Section III, above, occurring
in connection with the operations of the Respondent Company described in
Section I, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents have engaged in and are engaging
in unfair labor practices, it will be recommended that they cease and desist
therefrom and take affirmative action designed to effectuate the policies of the
Act.
Having found that the News has discriminated in regard to the hire and
tenure of employment of the complainants Milton Ashkenasy, Herbert Friedman,
Aaron Harbus, Bernard Canner, William Gilson, Abraham I. Gordon, Gustave,
Karger, John E. Kelly, John McMahan, Benjamin Schechner, Edwin J. Thornton,
Filmore G. Weber, James R. Winners, Henry Sadowitz, and Nathaniel D. Tenen-
baum, it will be recommended that the News, upon application, offer the com-
plainants employment in available jobs in its delivery departmegt, without regard
to their membership or nonmembership in the Union, or in any other labor organ-
ization, and without prejudice to their seniority or other rights and privileges.
Having further found that the Union has caused the News so to discriminate,
it will be ,recommended that the Union notify the News, in writing, that it has
no. objection to the nondiscriminatory employment of the complainants; and
further, that it requests the Company to offer the complainants employment
without discrimination because of their membership in the Union and without
prejudice to their seniority and other rights and privileges.
It is further recommended that the News notify the complainants in writing
that, upon their application, it will offer them employment in available jobs on
such nondiscriminatory basis, and that the Union notify the News in writing
that it has no objection to the employment by the News of the complainants, or
-other persons, without regard to their nonmembership in the Union.
14 Hearst Consolidated Publications , Inc., 93 NLRB 237; Newspaper and Mail De-
liverers ' Union of New York and Vicinity, 93 NLRB 419.
15 Ibid.
NEWS SYNDICATE CO., INC. 1121
Both Respondents being responsible for the discrimination suffered by the
complainants, it will be recommended that they jointly and severally make them
whole for any loss of pay incurred by reason of the .discrimination from April
24, 1949, to the date.of compliance with these recommendations.36 -Exact com-
putations shall be in accord with the Board's usual policies. F. W. Woolworth
Co., 90 NLRB 289; Crossett Lumber Co., 8 NLRB 440; Republio Steel Corporation
v. N. L. R. B., 311 U. S. 7. The Union, however, may terminate its liability for
further accrual of back pay by giving the the News the notice mentioned above.
If such notice is given, the Union shall not be liable for any back pay accruing`5
days after such notice is given'T The Company may also terminate its liability'
for further accrual of back pay by notifying the complainants that available work
will be offered them without discrimination and offering them employment on
such basis, as provided above.
It will also be recommended that the News make available to the Board, upon
request, payroll and other records to facilitate the checking of the amount of
back pay due and to determine the right of employment's It is further recom-
mended that the Board reserve the right to modify the back pay and reinstate-
ment provisions of the order to be entered herein, if made necessary by a change
of conditions in the future, or to make such supplements thereto as may here-
after become necessary in order to define or clarify their application to a specific
set of circumstances not now apparent.
On the basis of the foregoing finding of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS of LAW
1. News Syndicate Co., Inc., is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. Newspaper and Mail Deliverers' Union of New York and Vicinity is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By causing or attempting to cause the Respondent Company to discriminate
against employees Milton Ashkenasy, Herbert Friedman, Aaron Harbus, Bernard
Canner, William Gilson, Abraham I. Gordon, Gustave Karger, John E. Kelly,
John McMahan, Benjamin Schechner, Edwin J. Thornton, Filmore G. Weber,
James R. Winners, Sadowitz, and Nathaniel D. Tenenbaum, in violation of
Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act.
4 By restraining and coercing employees in the exercise of rights guaranteed
in Section 7'of the Act, the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Mil-
ton Ashkenasy, Herbert Friedman, Aaron Harbus, Bernard Canner, William
Gilson, Abraham I. Gordon, Gustave Karger, John E. Kelly, John McMahan,
Benjamin Schechner, Edwin J. Thornton, Filmore G. .Weber, James W. Winners,
Henry Sadowitz, and Nathaniel D. Tenenbaum, thereby encouraging member-
ship in the labor organization, the Respondent Company has engaged in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent Company has en-
18 The Respondents however shall not be liable for back pay for any day when, absent
discrimination, the complainants would not have been employed.
17 Pinkerton's National Detective Agency, Inc., 90 NLRB 205.
28 F. W. Woolworth Company, 90 NLRB 289.
1122 DECISIONS OF - NATIONAL LABOR RELATIONS BOARD
gaged in, and is engaging in, unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
7. The aforesaid'unfair labor practices are unfair labor practices effecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
GREEN BAY DROP FORGE COMPANY and UNITED AUTOMOBILE WORKERS
OF AMERICA, AFL,1 PETITIONER
GREEN BAY DROP FORGE COMPANY and INTERNATIONAL . BROTHERHOOD
OF BLACKSMITHS , DROP FORGERS AND HELPERS, AFL,2 PETTTIONER.
Cases Nos. 13-RC-1894 and 13-RC-1926. August 14,1951
Decision and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a consolidated hearing was held before
Ivan C. McLeod, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed ..3
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Herzog and Members Reynolds and
Murdock].
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
Herein referred to as the UAW-AFL.
x Herein referred to as the Blacksmiths.
' At the hearing , the Blacksmiths , referring to the imminent completion of its merger
with another international union, moved to amend its petition by adding "or its successor"
to its name therein. The Intervenor thereupon moved to dismiss the Blacksmiths ' petition
claiming that the Blacksmiths , because of such current merging, had lost its representative
capacity . The hearing officer granted the Blacksmiths' motion, and referred the Inter-
venor 's motion to the Board . We find no merit in the Intervenor 's motion.
However, we do not deem it necessary to amend the petition , as requested by the Black-
smiths, as to do so might cause confusion in the minds of the voters at the election be-
cause of the indefinite character of the added description . Pittsburgh Limestone Corpo-
ration , 77 NLRB 710. The hearing officer's ruling is therefore reversed . On the other
hand , if the merger of the Blacksmiths is consummated before the election and a new
name is agreed upon by the merging unions , then the Regional Director , upon proper re-
quest, is hereby authorized to substitute the new name on the ballot for that of the
Blacksmiths. ,
95 NLRB No. 140.