Newspaper and Mail Deliverers' Union (New York Post)

National Labor Relations Board - Board Decisions

Aug 21, 2014

361 N.L.R.B. 245 (N.L.R.B. 2014)

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 245
Newspaper and Mail Deliverers’ Union of New York
and Vicinity (NYP Holdings, Inc., d/b/a New
York Post) and Stefani Cotler and Terance
Bright and Marc Sussman and Reyson Pimentel
and Jesus Mejia and Cesar Ceballos and John
Smith and Patrick Forte and Shiwu Peng and
NYP Holdings, Inc., d/b/a New York Post

Newspaper and Mail Deliverers’ Union of New York
and Vicinity (City & Suburban Delivery Sys-
tems, Inc.) and Enrique Grados and Djevalin
Gojani and Christopher Fabiani and Richard
Atkins and Raimond Moran and John Cassaro
and Patrick Rizzotti and City & Suburban De-
livery Systems, Inc. and The New York Times
Company

Newspaper and Mail Deliverers’ Union of New York
and Vicinity (Various Employers) and Daniel
Altieri. Cases 02–CB–021740, , 02–CB–022366,
02–CB–021749, 02–CB–021762, 02–CB–021826,
02–CB–021827, 02–CB–021828, 02–CB–021829,
02–CB–021842, 02–CB–021845, 02–CB–021899,
02–CB–021905, 02–CB–021931, 02–CB–021941,
02–CB–021946, 02–CB–022015, 02–CB–022051,
and 02–CB–022701
August 21, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND SCHIFFER
On February 8, 2012, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent Union and the General Counsel each filed
exceptions and a supporting brief and an answering
brief, and the General Counsel also filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified below and to adopt the recommended Order
as modified and set forth in full below.1
1 We find merit in certain of the General Counsel’s exceptions to
the judge’s recommended conclusions of law, remedy, and Order and
shall amend and modify them accordingly. We shall also modify the
judge’s recommended Order to conform to the Board’s standard re-
medial language and to require the Respondent to compensate em-
ployees entitled to a make-whole remedy for any adverse income tax
consequences of receiving their backpay in one lump sum. We shall
issue a new notice to conform to the Order as modified, and in ac-
cordance with our decision in Durham School Services, 360 NLRB
694 (2014).
In his decision, the judge found that Newspaper and
Mail Deliverers’ Union of New York and Vicinity (the
NMDU, the Union, or the Respondent) violated the Act
by (a) maintaining various contract provisions and a
side letter to its contract with the New York Post (Post);
(b) taking certain actions that affected Post employees
and were related to the closing of City & Suburban De-
livery Systems (C&S), which also had a contract with
the NMDU and was a wholly owned subsidiary of the
New York Times (Times); (c) entering into and imple-
menting a side letter with the Times containing certain
provisions related to the C&S closing; and (d) entering
into and implementing an agreement providing the
manner of selecting former C&S employees for buyouts
and transfers to the Times. The judge found that,
through these agreements and their implementation, the
NMDU gave preferential treatment to employees who
were union members and/or worked for union-signatory
employers over employees who were not or did not. He
further found that the Union violated the Act by failing
to give the Post’s unit employees appropriate notice of
their rights under NLRB v. General Motors, 373 U.S.
734 (1963), and Communications Workers v. Beck, 487
U.S. 735 (1988), and by threatening to bar a former
C&S employee from employment due to an alleged
dues arrearage. We agree with the judge’s unfair labor
practice findings for the reasons he states, and as further
elaborated in this decision. Finally, the General Coun-
sel excepts to the judge’s failure to find that the Union
also violated the Act by failing to give C&S unit em-
ployees appropriate notice of their General Motors and
Beck rights. As explained below, we find merit in the
General Counsel’s exception.
I. THE PRIMARY ISSUE
The key issue is whether the Union violated Section
8(b)(1)(A) and (2) of the Act by entering into and en-
forcing agreements that gave preferences (in hiring,
transfers, and buyouts) to one group of employees over
another, based on the preferred group’s membership in
the Union and/or their employment with an employer
that had a collective-bargaining relationship with the
Union. The judge concluded, and we agree, that the
Union’s use of industry-wide priority numbers (dis-
cussed below), and the fact that almost all employees
became union members when they received these prior-
ity numbers, created a union-based preference that fa-
vored employees who had worked for union-signatory
employers and/or were union members over employees
There are no exceptions to the judge’s finding that the Respondent
Union did not violate Sec. 8(b)(1)(A) of the Act by requiring Group 3
and 4 extras (explained below) to pay an agency fee.
361 NLRB No. 26

246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
who had not worked for union-signatory employers
and/or were not union members. We agree with the
judge that such union-based preferences are unlawful
because they favor, in hiring and promotion, those who
are union members and/or are or have been employed
by union-signatory employers, and they caused em-
ployers to discriminate against employees based on un-
ion membership and/or union-wide rather than unit-
wide seniority.
A. Background
The judge has fully set out the facts, so we recite only
the key ones. For many years, the Union represented
the employees of publishers and wholesalers that, in
turn, were represented in collective bargaining by two
multiemployer associations—the Publishers’ Associa-
tion of New York City and the Suburban Wholesalers’
Association. The former bargained collectively on be-
half of its employer members with respect to their de-
livery department employees; the latter represented a
group of wholesale delivery companies. During this
period, the Union dealt with the publishers and whole-
salers in a multiemployer bargaining context, and the
employees it represented were included in multiem-
ployer bargaining units.
In about 1953, the Union and the employers with
whom it had contracts (union-signatory employers)
agreed to a hierarchical structure for hiring extra em-
ployees. Each union-signatory employer would have a
group of steady employees called “regular situation
holders” or “RSHs,” plus a roster of extra employees to
draw from to perform any remaining work that day.
After the RSHs received their assignments, the extras
would bid for the remaining work according to their
placement in one of four groups and their seniority
within that group. The groups were arranged in de-
scending order of priority. Group 1 consisted of former
RSHs in the “industry,” i.e., anyone who had been em-
ployed as an RSH by any employer within the Greater
New York Metropolitan area that had a collective-
bargaining agreement with the Union.2 After 1974,
Group 1 also included former Group 3 extras who had
been promoted to Group 1.3 When an individual gained
2 We agree with the judge that the term “industry,” as used by the
parties here, includes only employers that have contracts with the Un-
ion and utilize delivery employees within the Greater New York Met-
ropolitan area. While there are non-signatory employers within that
geographic area who use delivery employees, they are not part of the
“industry” as that term is used here.
3 This change resulted from the decision in Patterson v. NMDU et
al., 384 F.Supp. 585 (S.D.N.Y. 1974), affd. 514 F.2d 767 (2d Cir.
1975), in which the court approved a settlement of consolidated cases
that claimed racial and ethnic discrimination in hiring. Under the
court approved settlement, the restriction of Group 1 to former RSHs
access to Group 1 (or became an RSH), the Union as-
signed him an industry-wide priority number that de-
termined his seniority among the employees of all un-
ion-signatory employers (the lower the number, the
greater the seniority).
Group 2 consisted of individuals who were currently
employed by any union-signatory employer within the
Union’s jurisdiction as an RSH or Group 1 extra.
While union-signatory employers maintained their own
RSH, Group 1, and Group 3 and 4 lists, in which sen-
iority was determined by the length of time on that list
within the employer’s own workforce, the Union main-
tained the Group 2 list, in which seniority was deter-
mined by length of time as an RSH or Group 1 extra
working for any union-signatory employer.
Group 3 included individuals who regularly shaped
for and obtained regular work at a particular employer
over a period of time. Group 3 extras were not eligible
to become union members, but their wages and condi-
tions of employment were set by the contract that the
Union had with their employer. Group 3 extras were
required to pay agency fees to the Union.
Group 4 extras were true casual employees, and indi-
viduals on this list were given work as a last resort.
Like Group 3 extras, they could not become union
members, but their wages and conditions of employ-
ment were set by the union contract of the employer
with whom they sought work, and they were required to
pay the Union an agency fee as a condition of employ-
ment.
As noted above, when the Union and the union-
signatory employers first established the Group struc-
ture to assign extra work, it was in a setting of mul-
tiemployer bargaining and multiemployer bargaining
units. In such a context, the use of union-based seniori-
ty to establish employment preferences was not unlaw-
ful. The multiemployer bargaining unit being union-
wide, union and unit seniority were coextensive, so
there could be no discrimination based on union sen-
iority rather than unit seniority. Further, the establish-
ment and maintenance of the hierarchical roster of
Group extras advanced the legitimate interests of both
employers and the Union. Employers were assured a
steady source of extra workers, and the Union secured
was eliminated, and provision was made for the promotion of Group
3 extras to the bottom of the Group 1 list and for union membership
to be offered the former Group 3 extras at that time. Id. at 590. The
Union asserts that the Board should defer to that settlement, which
allowed the Union and the signatory employers to retain, with slight
modification, the Group extras system. We agree with the judge that
deferral would not be appropriate because the Board was not a party
to the settlement, and the racial and ethnic discrimination alleged
there is different from the type of discrimination alleged here.

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 247
employment for its members and a means to add to its
membership ranks as employees were promoted from
Group 3 to Group 1.
Over time, publishers withdrew from the Publishers’
Association and then bargained individually with the
Union, which represented those employers’ employees
in separate bargaining units. The Post did this in 1975.
Then, in 1984, the Publishers’ Association ceased to
function as the bargaining agent for its employer mem-
bers, and those employers, including the Times, then
negotiated contracts covering their own employees in
separate bargaining units. Also, before the events at is-
sue here, the Suburban Wholesalers’ Association had
ceased to exist. (In any event, as the judge observed,
C&S was never a member of any multiemployer asso-
ciation.) This altered landscape of individual employer
bargaining and separate bargaining units leads to the
major issues in this case.
B. The New York Post Cases
The Post employs a number of permanent RSHs, but
it supplements its workforce by hiring extras who shape
on a daily basis to perform the work left over after the
RSHs receive their assignments. Paragraph 4-A.4.(a)
and (b) of the Post-NMDU contract provides for the
four groups of extras described above. The contract al-
so contains a union-security clause requiring Post em-
ployees working as RSHs or Group 1 extras to become
union members no later than 30 days after they attain
such status and to retain union membership as a condi-
tion of employment.4 Group 3 and 4 extras, although
not eligible for membership, are required to pay an
agency fee as a condition of employment, and their
terms and conditions of employment are governed by
the contract.5
The Post-NMDU contract includes two provisions
that permit employees of other signatory employers to
transfer to the Post under certain circumstances. Sec-
4 The General Counsel asks us to find that all collective-bargaining
agreements of union-signatory employers not introduced at the hear-
ing contained similar union-security clauses, and thus that RSHs and
Group 1 extras employed by union-signatory employers worked un-
der union-security clauses at their respective employers. Because the
Union failed to produce the subpoenaed collective-bargaining agree-
ments, we so find by adverse inference. See ADF, Inc., 355 NLRB
81, 84–85 (2010), reaffirmed by and incorporated by reference in 355
NLRB 351 (2010).
5 The General Counsel excepts to the judge’s finding that, for pur-
poses of this case, the Group 4 provision of the Post contract (dis-
cussed below) is not relevant as there is no contention that anyone in
Group 4 was discriminated against. We agree with the judge that the
Union violated the Act by discriminating against nonmember unit
employees. Since nonmember unit employees are included in both
Group 3 and Group 4, we shall leave to compliance the determination
of whether specific individuals in Group 4 are entitled to a remedy.
tion 4-A.4.(j) provides that an RSH has the right to ap-
ply for a Group 1 listing with a signatory employer if
the RSH has held that position continuously for 5 years
prior to making application. And an October 2003 side
letter provides that, if one of several designated signato-
ry employers (including C&S) ceases operations, the
Post will add to its own Group 1 list a certain number of
that employer’s RSHs and Group 1 extras. By early
2008, there was a distinct possibility that C&S would
go out of business in the near future.
Also in 2008, the Post needed to fill vacancies on its
Group 1 list. In July 2008, Kenneth Chiarella, the
Post’s director of distribution, wrote the Union as fol-
lows:
We have a substantial number of openings on the One
List. The contract provides that the One List will be
maintained at ten percent for [sic] the RSH List. I
would request a meeting of the Adjustment Board to
elevate employees from the Three List to fill the vacan-
cies and bring the Company into compliance with the
contract. If the Union continues to refuse to meet to el-
evate employees because of a citywide freeze on issu-
ing new Union cards, please confirm that fact.
Union Business Agent Glenn LaChance responded the fol-
lowing day that there was an industry-wide “Freeze” on all
Group 1 lists, not just the Post’s, and that, due to the “eco-
nomic uncertainty throughout our industry, we, the Union,
see no need to fill these vacancies on the One List
throughout the industry at this time.”
C&S went out of business on January 4, 2009. As
permitted under Section 4-A.4.(j) of the contract and
pursuant to the October 2003 side letter, the Post agreed
to employ a number of people who had lost their jobs at
C&S. As described below, that January 2009 agree-
ment was made effective through certain “Orders” of
the Post/NMDU Adjustment Board in the months fol-
lowing the C&S closure.6
As amended at the hearing, the Post complaint alleg-
es that, by maintaining and applying Sections 4-A.4.(a)
and (b) and Section 4-A.4.(j) of the Post-NMDU con-
tract, and the October 2003 side letter, the NMDU vio-
lated Section 8(b)(1)(A) and (2) of the Act by causing
and attempting to cause the Post to discriminate against
certain unit employees by giving a hiring preference to
nonunit individuals (i.e., former C&S employees hired
by the Post) based on their membership in the NMDU
6 Sec. 15-E of the Post-NMDU contract created an “Adjustment
Board,” comprised of two employer representatives and two union
representatives, “which shall have exclusive jurisdiction over any is-
sue arising with regard to the provisions of Section 4-A of this
Agreement.” Majority decisions of the Adjustment Board were bind-
ing on the parties.

248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and/or their employment with an employer that has or
had a collective-bargaining relationship with the
NMDU. The complaint further alleges that the NMDU
violated Section 8(b)(1)(A) and (2) by refusing the
Post’s July 2008 request to elevate employees from the
Post’s Group 3 list to fill vacancies on the Group 1 list
because the NMDU wanted to preserve work opportu-
nities for nonunit members employed by other signato-
ry employers (i.e., employees of the soon-to-close
C&S). Finally, the complaint alleges that the NMDU
violated Section 8(b)(1)(A) by failing to give the Post’s
unit employees appropriate notice of their General Mo-
tors and Beck rights.
C. The C&S/New York Times Cases
The Times created C&S through the purchase of four
wholesale newspaper distributors whose employees the
NMDU had represented in separate bargaining units.
The hiring/seniority provisions of the C&S-NMDU
contract (i.e., the RSH, Group 1, Group 2, Group 3, and
Group 4 provisions) were virtually the same as in the
Post-NMDU agreement. The C&S contract, however,
also provided that RSHs’ seniority was determined by
their “made-steady date,” i.e., the date that an employee
became an RSH with C&S or with one of its four pre-
decessors.
Shortly before C&S went out of business, the Times
and the Union entered into a closing agreement in No-
vember 2008 (the Closing Agreement), by which the
Times agreed to hire 65 C&S RSHs and place them at
the bottom of the Times’ RSH seniority list, and to pay
a $100,000 buyout to each of 140 C&S RSHs who opt-
ed to leave the industry. The Closing Agreement pro-
vided that the C&S RSHs would choose between these
options (transfer to the Times or $100,000 buyout) in
order of seniority. Although the parties had previously
used C&S unit seniority to decide employee placement
issues, they agreed in a side letter to use union seniority
as reflected in industry-wide priority numbers.
After C&S closed, and consistent with the side letter,
the Union revised the C&S seniority list based on in-
dustry-wide priority numbers. On that basis, the former
C&S employees made their elections. The Times be-
gan to distribute $100,000 checks to certain former
C&S employees,7 and it hired other former C&S em-
ployees and placed them at the bottom of the Times’
seniority list. Within the ranks of the newly hired em-
ployees, seniority was determined based on industry-
wide priority numbers.
7 It did not award the last six buyouts because there was a dispute
regarding which former C&S employees were entitled to them, but it
set aside $600,000 for that purpose.
The C&S complaint alleges that, by requiring the use
of industry-wide priority numbers rather than unit sen-
iority in the closing agreement, the NMDU violated
Section 8(b)(1)(A) and (2) by causing and attempting to
cause C&S to discriminate against certain C&S unit
employees by giving an employment preference to oth-
er C&S unit employees based on their membership in
the NMDU and/or their prior employment with an
NMDU-signatory employer.8 The complaint also al-
leges that, by requiring former C&S employees to be
endtailed (placed at the bottom of the Times’ seniority
list) based on industry-wide priority numbers, the
NMDU violated Section 8(b)(1)(A) and (2). The com-
plaint further alleges that the NMDU violated Section
8(b)(1)(A) by failing to give the C&S unit employees
appropriate notice of their General Motors and Beck
rights, and by threatening to interfere with a former
C&S employee’s employment with any employer with
whom it has a collective-bargaining relationship if the
employee did not pay a purported arrearage in union
dues.
D. Discussion
We agree with the judge that “the basic rule of law”
applicable here is that discrimination in hiring and pro-
motion based solely on union considerations (i.e., union
membership and/or prior employment with union-
signatory employers) is unlawful. Such discrimination
violates the Act because it favors those who are union
members and/or are or have been employed by union-
signatory employers, and disfavors individuals who
have exercised their Section 7 right to refrain from un-
ion activity. Applying that basic rule here, we adopt the
judge’s findings that the NMDU violated Section
8(b)(1)(A) and (2) of the Act by causing and attempting
to cause the Post, C&S, and the Times to give employ-
ment preferences to NMDU-represented employees
based on union membership and/or industry-wide prior-
ity numbers.
This is the form of discrimination that the judge
found unlawful in the Post cases, based on (1) the daily
award of hiring preferences to Group 2 employees
(RSHs and Group 1 extras of other signatory employ-
ers), as required under Sections 4-A.4.(a) and (b) of the
Post-NMDU contract; and (2) the award of hiring pref-
8 The complaint also alleges, as an alternative theory, that, if the
Board finds the Union’s use of industry-wide priority numbers was
not unlawful, the Union violated its duty of fair representation to cer-
tain employees by refusing to correct their industry-wide priority
numbers to conform to their made steady dates because they were not
union members. Since we find that the seniority system based on the
use of industry-wide priority numbers is unlawful, we need not ad-
dress this alternative theory.

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 249
erences to former C&S RSHs after C&S closed, as re-
quired under Section 4-A.4.(j) of the contract and the
October 2003 side letter.9 In each context, when they
sought employment at the Post, RSHs and/or Group 1
extras were awarded a hiring preference based on their
union membership and/or their RSH or Group 1 status
at other union-signatory employers and in different bar-
gaining units. By virtue of this preference, they had
priority in hiring over the Post’s own Group 3 and 4 ex-
tras who had greater unit seniority, but were disfavored
because they were unrepresented and/or had less overall
NMDU seniority. In each case, the Union thereby
caused or attempted to cause the Post to discriminate
against its own employees by giving preference in hir-
ing based on union membership and/or union-wide ra-
ther than unit-wide seniority. Finally, we also agree
with the judge, for the reasons stated by him, that the
Union violated Section 8(b)(1)(A) and (2) by prevent-
ing the promotion of employees from Group 3 to Group
1 as of July 10, 2008.10
As the judge recognized, the analysis in the
C&S/Times cases is essentially the same. Although the
C&S RSHs were all in the same bargaining unit when
9 The General Counsel excepts to the judge’s failure (1) to refer to
these specific contract provisions and the October 2003 side letter in
finding that the Union unlawfully maintained certain contract provi-
sions; (2) to find, as alleged in the complaint, that the Union’s appli-
cation of Sec. 4-A.4 at all times since April 10, 2008, the com-
mencement of the 10(b) period, was also unlawful; and (3) to find
that the Union unlawfully applied the January 2009 agreement
through Adjustment Board orders of February 18 and August 5, 2009,
and January 28 and August 17, 2010, which gave preference in hiring
at the Post to former C&S employees over the Post’s own Group 3
and 4 employees. We find merit in these exceptions and shall amend
the judge’s conclusions of law and modify his recommended Order
accordingly. In this regard, we note that, at the hearing, the judge ac-
cepted the General Counsel’s motion to amend the complaint to al-
lege that the Adjustment Board orders of August 5, 2009, and January
28 and August 17, 2010, were unlawful. We also correct certain fac-
tual errors by the judge and find that, by the Adjustment Board order
of February 18, 2009, 75 former C&S employees, not (as the judge
found) 50 former C&S employees and 25 Group 3 employees of the
Post, were promoted to the Post’s Group 1 list, and that two Adjust-
ment Board orders issued on August 5, 2009, not one on August 5
and a second on August 7. Finally, for purposes of compliance, we
find merit in the General Counsel’s exception to the judge’s failure to
find that, by an Adjustment Board order of April 26, 2006, the Post’s
Group 1 list had to be maintained at 24 employees at that time.
10 The General Counsel excepts to the judge’s failure to find that
the “freeze” on promotions to Group 1 began in April 2008, based on
Chiarella’s testimony that, approximately 3 months prior to July 10,
certain union officials stated that the Union was not willing to con-
vene an Adjustment Board because of “uncertainty in the industry.”
Chiarella also testified, however, that he had only heard “rumors” of a
freeze at that time. Thus, Chiarella’s testimony does not establish
that prior to July 10, the Union announced or applied the “freeze” that
we find unlawful here. Thus, we find the General Counsel’s excep-
tion without merit.
C&S closed, the buyout and transfer preferences and
the treatment of former C&S RSHs were still based on
industry-wide priority numbers. Consequently, certain
C&S employees received a preference in buyouts,
transfers, and, once transferred, seniority within the
Times bargaining unit over other C&S employees based
on union membership and/or union-wide rather than
unit-wide seniority.11
In sum, individuals could only be promoted to RSH
or Group 1 status while working for a union-signatory
employer, and the union-signatory contracts contained a
union-security clause requiring RSHs and Group 1 ex-
tras to become union members. Therefore, the Union’s
maintenance and application of its industry-wide priori-
ty number system, operating in tandem with union-
security requirements, unlawfully favored individuals
who were union members and/or had greater length of
employment with union-signatory employers as RSHs
or Group 1 extras; and this arrangement disfavored in-
dividuals who were not union members and/or had not
worked for union-signatory employers. By maintaining
and applying these preferences for union members
while disfavoring nonmembers, the Respondent caused
the Post and the Times to discriminate against employ-
ees because of their prior lack of representation by a un-
ion.12
Finally, we agree with the judge that Teamsters Local
Union 896 (Anheuser-Busch), 296 NLRB 1025 (1989),
where the Board dismissed the Section 8(b)(1)(A) and
(2) allegations, is distinguishable.13 The employment
preferences granted in Anheuser-Busch appear in part to
have been skill based, and therefore the alleged dis-
crimination might have been justified by legitimate
11 Thus, certain C&S employees (i.e., those who had become RSHs
while working for other union-signatory employers in other bargain-
ing units and had therefore received their industry-wide priority num-
bers prior to employment with C&S) would have greater union-wide
seniority but less unit-wide seniority than employees who began
working for C&S before they did, but were promoted to RSH status
after them. In this regard, the General Counsel excepts to the judge’s
failure to find that employees Enrique Grados, Richard Atkins, and
Djevalin Gojani were promoted to RSH status on May 4, 1998. We
find merit in this exception as the record establishes that their recog-
nized made-steady date is May 4, 1998, the date they were elevated to
RSH status.
12 See, e.g., Whiting Milk Corp., 145 NLRB 1035, 1037, 1043
(1964), enf. denied 342 F.2d 8 (1st Cir. 1965).
13 The issue presented in Anheuser-Busch was whether the re-
spondent union violated the Act “by invoking a provision of the ap-
plicable collective-bargaining agreement giving permanent employ-
ees laid off by other employers who have contracts with the
[r]espondent a preferential seniority right to work for the [e]mployer
instead of temporary employees whose job seniority with the
[e]mployer would otherwise have entitled them to work.” Id. at 1025.

250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
considerations.14 There is no evidence that the present
case involved skill based differences in treatment. Fur-
ther, the bumping preferences in Anheuser-Busch ap-
peared to be a contractual vestige of a multiemployer
bargaining relationship, and such a “vestige” does not
exist here.15 Lastly, the contractual provisions at issue
in Anheuser-Busch were ambiguous and there was no
evidence of actual discrimination; by comparison, the
contractual terms at issue here are unlawful on their
face, and there is no question that union-based discrim-
ination occurred.
For all these reasons, we adopt the judge’s findings
that the Respondent Union violated Section 8(b)(1)(A)
and (2) of the Act as alleged in the consolidated com-
plaints.16
14 See Anheuser-Busch, 296 NLRB at 1029 fn.12 and accompany-
ing text.
15 The Union excepts to the judge’s findings that both the Publish-
ers’ Association and the Wholesalers’ Association were defunct and
points out that they still administered certain pension and welfare
funds. Relying on this, the Respondent contends that the hir-
ing/seniority provisions of its contract with the Post constitute a “ves-
tige” of the multiemployer bargaining arrangement and therefore are
not unlawful. We find this exception without merit. As the judge
explained, there is “no basis for any claim that a seniority system
based on employment at other NMDU employers was a justifiable
vestige from a previous multi-employer contract.”
16 In reaching our conclusion, we acknowledge that, in Newspaper
& Mail Deliverers (City & Suburban Delivery), 332 NLRB 870, 870
fn. 2 (2000), the Board noted without comment the Union’s use of
industry-wide priority numbers to establish seniority for bargaining
unit employees. In that case, however, the issue was whether the re-
ferral system had been applied in a discriminatory manner, not
whether the system itself was discriminatory.
In its exceptions, the Respondent broadly contends, inter alia, that
the Board should “reverse” policy and accept contrary appellate court
decisions “where there is a specific holding in the circuit where the
case arose holding the action involved to be lawful.” In particular,
the Respondent asserts that the Board should find lawful the Re-
spondent’s system of hiring preferences based on NLRB v. New York
Typographical Union, 632 F.2d 171 (2d Cir. 1980), in which the
court reversed the Board’s finding, at 242 NLRB 378 (1979), that the
respondent union violated Sec. 8(b)(1)(A) and (2) by awarding a
preference in hiring to employees in “Category A.” We find this ex-
ception without merit. As to the Respondent’s broad contention,
there are many instances where the Board has resolved disputed is-
sues differently than one or more courts of appeals, and many courts
have disagreed with one another regarding relevant issues. Accord-
ingly, “the Board has a long-established policy of refusing to acqui-
esce in the adverse decisions of the appellate courts.” Provena St.
Joseph Medical Center, 350 NLRB 808, 814 (2007). As to the par-
ticular issues presented here, we do not believe a different outcome is
warranted by New York Typographical Union. There, when reversing
the Board, the Second Circuit relied especially on the fact that, even if
Category A was limited to union members, there was no rational basis
for inferring that the preference given to Category A employees
would have the effect of encouraging union membership because
Category A was a closed class. New York Typographical Union, 632
F.2d at 182. That is materially different from the situation here.
II. OTHER ISSUES
1. We agree with the judge, for the reasons stated by
him, that the Union violated Section 8(b)(1)(A) by fail-
ing to inform Post employees whom it sought to obli-
gate to pay dues or agency fees under a union-security
clause of their right under NLRB v. General Motors
Corp., 373 U.S. 734 (1963), to be and remain nonmem-
bers, and of the rights of nonmembers under Communi-
cations Workers v. Beck, 487 U.S. 735 (1988), to object
to paying for union activities not germane to the Un-
ion’s duties as bargaining agent, and to obtain a reduc-
tion in dues and fees for such activities.
The General Counsel excepts to the judge’s failure to
further find that the Union also violated Section
8(b)(1)(A) by failing to inform C&S employees of their
General Motors and Beck rights. We find merit in this
exception. Although the General Counsel subpoenaed
the Union to provide any notices it had furnished to the
C&S employees in this regard, the Union did not pro-
duce any notices. We therefore draw an adverse infer-
ence that the NMDU never informed C&S employees
of their General Motors and Beck rights. See ADF,
Inc., 355 NLRB at 84–85, reaffirmed by and incorpo-
rated by reference in 355 NLRB 351 (2010). Further,
former C&S employees Grados, Atkins, and Gojani,
nonmembers who paid an agency fee instead of dues,
testified without contradiction that the NMDU never
informed them of these rights.17
2. We also agree with the judge that the Union vio-
lated Section 8(b)(1)(A) by threatening to bar former
C&S employee Daniel Altieri from employment be-
cause of an alleged dues arrearage. Altieri was a union
member who lost his job when C&S closed in January
2009. The Union claims he was $1445 in arrears on his
union dues as of July 2010. In an August 10, 2010 let-
ter to him, the Union wrote:
In accordance with Article XIV, Section 5, you are ex-
pelled from the [NMDU] because you are six (6)
months or more in arrears in Union dues. As a result of
being an expelled member, you can lose all claims to
employment at your employer or at any employer that
17 We also grant the General Counsel’s request to modify the
judge’s recommended Order to direct the NMDU to reimburse, with
interest, any Post nonmember unit employees who file Beck objec-
tions with the Union for any dues and fees exacted from them for
nonrepresentational activities since May 24, 2008, and any C&S
nonmember unit employees who file Beck objections with the Union
for any dues and fees exacted from them for nonrepresentational ac-
tivities since September 24, 2008, in accordance with the Board’s de-
cision in Rochester Manufacturing Co., 323 NLRB 260 (1997).

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 251
is governed by a collective bargaining agreement be-
tween the NMDU and those employers.
The judge found that Altieri incurred the dues arrearage at
C&S. The Union argues that he incurred the arrearage
while working for an employer whose contract contained a
lawful union-security clause, and the General Counsel ar-
gues that the record does not show where, or even if, Altie-
ri was employed at the time he assertedly incurred this
dues arrearage, which the General Counsel terms “pur-
ported.” The record supports the General Counsel’s posi-
tion. Thus, the Union has not established that Altieri actu-
ally incurred this dues arrearage. Moreover, even if he
had, the letter threatens to preclude his employment at
“any employer” whose employees are covered by an
NMDU contract in a bargaining unit separate from the
C&S unit. The Board has long held such a threat unlaw-
ful. See, e.g., Iron Workers Local 118 (Pittsburgh Des
Moines Steel Co.), 257 NLRB 564, 566 (1981), enfd. 720
F.2d 1031 (9th Cir. 1983). We therefore find the Union’s
letter was unlawful.
3. The General Counsel excepts to certain errors in
and omissions from the judge’s recommended Order,
including his failure to include (a) a provision directing
the NMDU to make whole C&S employees who would
have qualified for a transfer to the Times but for the
NMDU’s decision to define seniority in the Closing
Agreement by industry-wide priority numbers, and (b) a
provision directing the NMDU to make whole any for-
mer C&S employees who were hired by the Times pur-
suant to the closing agreement and placed on the Times
seniority list in accordance with their industry-wide
priority numbers for any loss of wages and benefits
they may have suffered by reason of the NMDU’s deci-
sion to define seniority in the closing agreement by in-
dustry-wide priority numbers. We find merit in these
exceptions and shall modify the judge’s recommended
Order accordingly.18
AMENDED CONCLUSIONS OF LAW
A. The New York Post Cases
1. At all material times, NYP Holdings, Inc., d/b/a
New York Post (Post), a Delaware corporation having
an office and place of business at 900 East 132d Street,
Bronx, New York, has been an employer engaged in
18 We also find merit in the General Counsel’s exception to the
judge’s failure to order the NMDU to post the notice on its bulletin
board at the Post’s Bronx, New York facility, and on its bulletin
board at the Times’ New York, New York facility, and his failure to
order the NMDU to mail the notice to all former employees of C&S
who were employed by it from November 20, 2008, through January
4, 2009.

commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. At all material times, the NMDU has been a labor
organization within the meaning of Section 2(5) of the
Act.
3. The following employees of the Post, herein
called the Unit, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All Drivers, Route persons, Tail persons (helpers), Util-
ity Persons (floor persons, loaders, unloaders, miscella-
neous inside activities within the jurisdiction of the Un-
ion), Chauffeur--Utility (Utility person, breakdown, re-
covery), Trailer Drivers, Dispatchers, Relay Persons,
Hi-Lo Operator (when performing work otherwise
within the jurisdiction of the Union), Shrink Wrap Ma-
chine Operators, Palletizer Operators, Automobile op-
erators on routes, Delivery Office Clerks (Billing), Col-
lectors (except when the Publisher uses a billing system
operated by the Accounting Department), Persons in
charge of routing newspaper mail at the NYP facility.
4. At all material times, the NMDU has been the
designated exclusive collective-bargaining representa-
tive of the Unit, and the NMDU has been recognized as
such by the Post.
5. The Post’s recognition of the NMDU as the des-
ignated exclusive collective-bargaining representative
of the Unit has been embodied in successive collective-
bargaining agreements, the most recent of which was
entered into on October 29, 2003, and which was effec-
tive from October 29, 2003, to September 30, 2010.
6. On December 12, 2008, the NMDU and the Post
executed a memorandum of agreement, which modified
the collective-bargaining agreement by, among other
things, extending it to December 31, 2015.
7. At all material times, based on Section 9(a) of the
Act, the NMDU has been the exclusive collective-
bargaining representative of the Unit.
8. At all material times, the NMDU and the Post
have maintained the following provisions in the collec-
tive-bargaining agreement described above: Sections 4-
A.4.(a) and (b) and Section 4-A.4.(j). They have also,
at all material times, maintained the October 29, 2003
side letter to the collective-bargaining agreement de-
scribed above. Maintenance of these contractual provi-
sions and the side letter violate Section 8(b)(1)(A) and
(2) by discriminating against unit employees with re-
spect to hiring and promotion opportunities.
9. By engaging in the conduct described above in
paragraph 8, the NMDU has caused and attempted to
cause the Post to discriminate against certain unit em-
ployees in violation of Section 8(a)(3) of the Act by

252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
giving a hiring preference to nonunit individuals based
on their membership in the NMDU and/or their em-
ployment with an employer that has or had a collective-
bargaining relationship with the NMDU in violation of
Section 8(b)(1)(A) and (2) of the Act.
10. Since April 10, 2008, a date 6 months prior to
the filing of the charge in Case 02–CB–021740, the
NMDU has required the Post to assign work to non-
Unit employees on the Group 2 list.
11. By engaging in the conduct described above in
paragraph 10, the NMDU has caused and attempted to
cause the Post to discriminate against certain Unit em-
ployees in violation of Section 8(a)(3) of the Act by
giving a hiring preference to nonunit individuals based
on their membership in the NMDU and/or their em-
ployment with an employer that has or had a collective-
bargaining relationship with the NMDU in violation of
Section 8(b)(1)(A) and (2) of the Act.
12. The collective-bargaining agreement described
above in paragraphs 5 and 6 creates an Adjustment
Board, consisting of members designated by the
NMDU and the Post, which has the authority to add to,
delete from, or change the lists for the classifications of
extras described in Sections 4-A.4.(a) and (b) of the
collective-bargaining agreement.
13. Section 3-A.1 of the collective-bargaining
agreement described above requires that the Post’s
Group 1 list be maintained at 10 percent of the number
of regular situation holders, and an April 26, 2006 Ad-
justment Board Order provided that the Group 1 List
would be increased to 24 employees at that time.
14. (a) By letter dated July 9, 2008, the Post request-
ed that the NMDU convene a meeting of the Adjust-
ment Board to elevate employees from the Post’s Group
3 list to fill vacancies on the Group 1 list to bring the
Post into compliance with the parties’ collective-
bargaining agreement described above.
(b) By letter dated July 10, 2008, the NMDU refused
the Post’s request.
(c) The NMDU engaged in the conduct described
above in paragraph 14(b) because it wished to preserve
work opportunities for nonunit members employed by
employers that have or had a collective-bargaining rela-
tionship with the NMDU.
(d) By engaging in the conduct described above in
paragraph 14(b), the NMDU has caused and attempted
to cause the Post to discriminate against certain Unit
employees in violation of Section 8(a)(3) of the Act by
giving a hiring preference to nonunit individuals based
on their membership in the NMDU and/or their em-
ployment with an employer that has or had a collective-
bargaining relationship with the NMDU in violation of
Section 8(b)(1)(A) and (2) of the Act.
15. (a) On February 18, 2009, the NMDU, through
the Adjustment Board described above in paragraph 12,
published a revised Post Group 1 list made up exclu-
sively of nonunit individuals formerly employed by
City and Suburban Delivery Systems, Inc. (C&S), an
employer that had a collective-bargaining relationship
with the NMDU.
(b) On August 5, 2009, January 28 and August 17,
2010, the NMDU, through the Adjustment Board de-
scribed above in paragraph 12, published revised Post
Group 1 lists that contained the names of unit employ-
ees formerly listed on the Post’s Group 3 list, individu-
als formerly employed by C&S, and various non-unit
employees.
(c) By engaging in the conduct described above in
paragraphs 15(a) and (b), the NMDU has caused and
attempted to cause the Post to discriminate against cer-
tain unit employees in violation of Section 8(a)(3) of
the Act by giving a hiring preference to nonunit indi-
viduals based on their membership in the NMDU
and/or their employment with an employer that has or
had a collective-bargaining relationship with the
NMDU in violation of Section 8(b)(1)(A) and (2) of the
Act.
16. (a) Section 2-K.2 of the collective-bargaining
agreement described above in paragraphs 5 and 6 con-
tains the following conditions of employment, herein
called the union-security provision:

All persons now employed as regular situation
holders shall remain members of the Union, and all
persons hereafter employed as regular situation
holders shall acquire and maintain Union member-
ship status no later than thirty (30) days after they at-
tain regular situation holder status. All persons now
employed as regular situation holders, Group I ex-
tras, Group II extras, shall maintain membership in
good standing in the Union. Failure to do so, by rea-
son of dues delinquency shall, upon notification by
the Union to the Publisher, result in the suspension
of work privileges for said individuals.

All employees not in the category specified
above, who are covered by this collective bargaining
Agreement, shall be required to pay the provided for
agency fee. Failure of such employees to tender
such fees within thirty (30) days shall, upon notifica-
tion by the Union to the Publisher, result in the sus-
pension of work privileges for said individuals.

(b) The NMDU expends the monies collected pursu-
ant to the union-security provision on activities ger-
NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 253
mane to collective bargaining, contract administration,
and grievance adjustment, herein called representational
activities, and on activities not germane to collective
bargaining, contract administration, and grievance ad-
justment, herein called nonrepresentational activities.
(c) At all material times since on or about May 24,
2008, a date 6 months prior to the filing and service of
the amended charge in Case 02–CB–021762, certain
unit employees covered by the union-security provi-
sion, including all employees on the Post’s Group 3 and
4 lists, have not been members of the NMDU.
17. The NMDU has failed to inform unit employees,
including all nonmembers, of the following infor-
mation:

(a) that they have the right to be or remain a nonmem-
ber;
(b) that they have a right as a nonmember to object to
paying for nonrepresentational activities and to obtain a
reduction in fees for such nonrepresentational activi-
ties;
(c) that they have the right to be given sufficient infor-
mation to enable them to intelligently decide whether
to object;
(d) that they have the right as a nonmember to be ap-
prised of any internal union procedures for filing ob-
jections.

18. By failing to provide employees of the New
York Post notice of their right under NLRB v. General
Motors Corp., 373 U.S. 734 (1963), to be and remain
nonmembers, and of the rights of nonmembers under
Communications Workers v. Beck, 487 U.S. 735 (1988),
to object to paying for union activities not germane to
the Union’s duties as bargaining agent, and to obtain a
reduction in dues and fees for such activities, while
maintaining and enforcing a union-security clause, the
NMDU failed to meet the notice requirements set forth
in Paperworkers Local 1033 (Weyerhaeuser Paper),
320 NLRB 349 (1995), and thereby violated Section
8(b)(1)(A) of the Act.
19. The unfair labor practices of the NMDU de-
scribed above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
20. The NMDU has not engaged in any other unfair
labor practice alleged in the Post complaint.
B. The C&S/New York Times Cases
21. (a) City & Suburban Delivery Systems, Inc.
(C&S) was, and has been at all material times, a wholly
owned subsidiary of The New York Times Company,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
(b) At all material times, the New York Times Com-
pany (Times), a New York corporation with its princi-
pal place of business in New York, New York, has been
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
22. At all material times, the NMDU has been a la-
bor organization within the meaning of Section 2(5) of
the Act.
23. The following employees of C&S, herein called
the C&S unit, constituted a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:

All Drivers, Floormen, Foremen and Apprentices em-
ployed by City and Suburban at its facilities.

24. (a) At all material times, the NMDU has been the
designated exclusive collective-bargaining representa-
tive of the C&S unit, and the NMDU has been recog-
nized as such by C&S.
(b) C&S’s recognition of the NMDU as the designat-
ed exclusive collective-bargaining representative of the
C&S unit has been embodied in successive collective-
bargaining agreements, the most recent of which is ef-
fective until March 30, 2020.
25. At all material times, based on Section 9(a) of
the Act, the NMDU has been the exclusive collective-
bargaining representative of the C&S unit.
26. The following employees of the Times, herein
called the Times unit, constitute a unit appropriate for
the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
Route men; Recovery men; Canada men; Loaders;
Dispatchers; Checkers; Mail, relay, plate, and mat
chauffeurs when delivery is made by truck; Tiers, car-
riers and floor men; Automobile operators on routes
and relay mail and newspaper delivery; Men writing
wrappers, handling, bagging and tying, by hand or by
machine, all papers for New York City delivery; Men
in charge of routing of mail at newspaper plants and at
railroad, airway, heliport, bus and ferry terminals; Men
in charge of bundle conveyor outlets; Men tying rolls;
Men in charge of “EI” and subway gangs; Collectors,
except in the case of any Publisher using a billing sys-
tem operated through the auditing department. Wrap-
per writing machines installed in the plant of the New
York Times will be manned by a member of the bar-
gaining unit provided such wrapper writing is currently
performed by a member of the bargaining unit.
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27. (a) At all material times, the NMDU has been the
designated exclusive collective-bargaining representa-
tive of the Times unit, and the NMDU has been recog-
nized as such by the Times.
(b) The Times’ recognition of the NMDU as the des-
ignated exclusive collective-bargaining representative
of the Times unit has been embodied in successive col-
lective-bargaining agreements, the most recent of which
is effective until March 30, 2020.
28. At all material times, based on Section 9(a) of
the Act, the NMDU has been the exclusive collective-
bargaining representative of the Times unit.
29. (a) On November 20, 2008, the NMDU and the
Times signed an agreement concerning the closure of
the facilities operated by C&S.
(b) Under the closing agreement described above in
paragraph 29(a), the Times agreed to transfer 65 active
C&S regular situation holders to its delivery department
in order of their seniority and to offer buyouts in the
gross amount of $100,000 each to 140 active C&S
regular situation holders in order of their seniority.
30. (a) On November 20, 2008, representatives of
the NMDU and the Times signed a side letter to the
closing agreement described above in paragraph 29(a),
which confirmed their understanding that the term “sen-
iority” as used in the closing agreement refers to “in-
dustry-wide priority.”
(b) The NMDU issues industry-wide priority num-
bers to regular situation holders and to certain, but not
all, employees classified as extras in units covered by
its various collective-bargaining agreements with signa-
tory employers.
31. (a) Starting in mid-November 2008, the NMDU
and C&S published various lists ranking C&S unit em-
ployees at the various C&S facilities in accordance with
their industry-wide priority numbers issued by the
NMDU for the purpose of establishing seniority for de-
termining eligibility for the transfer and buyout options
offered in the closing agreement described above in
paragraph 29(a).
(b) By using industry-wide priority numbers to com-
pile the various lists described above in paragraph
31(a), the NMDU bestowed an employment preference
on certain C&S unit employees based on their prior
employment with employers, other than C&S or its
predecessor(s), that have or had collective-bargaining
relationships with the NMDU.
32. The NMDU and C&S selected C&S unit em-
ployees for positions with the Times and the buyouts
offered in the closing agreement described above in
paragraph 29(a) in accordance with the C&S unit em-
ployees’ industry-wide priority numbers, as described
above in paragraphs 30(a) and 31(a).
33. By engaging in the conduct described above in
paragraphs 30(a) and 32, the NMDU has caused and at-
tempted to cause C&S to discriminate against C&S unit
employees by giving an employment preference to
C&S unit employees based on their membership in the
NMDU and/or their prior employment with an employ-
er that has or had a collective-bargaining relationship
with the NMDU.
34. (a) On about January 4, 2009, selected former
C&S employees were added to the existing Times unit.
(b) On about January 4, 2009, selected former C&S
unit employees were endtailed to the seniority list at the
Times in accordance with their industry-wide priority
numbers, as described above in paragraphs 30(a) and
31(a).
35. By engaging in the conduct described above in
paragraph 34, the NMDU has caused and attempted to
cause the Times to discriminate against certain former
C&S unit employees by giving an employment prefer-
ence to certain former C&S unit employees based on
their membership in the NMDU and/or their prior em-
ployment with an employer that has or had a collective-
bargaining relationship with the NMDU.
36. (a) A side letter dated June 8, 1999, incorporated
into the collective-bargaining agreement described
above in paragraph 24(b), contains the following condi-
tions of employment, herein called the union-security
provision:
It shall be a condition of employment that all employ-
ees of the Wholesaler, covered by the terms and condi-
tions set forth in the Agreement, who are members of
the Union, shall remain members in good standing. A
member of the Union remains a member in good stand-
ing by the payment of the periodic dues and initiation
fee of the Union. All employees of the Wholesaler
covered by the terms and conditions of the Agreement,
but not Union members, must remain in good standing
with the Union. A non-member of the Union remains
in good standing by the payment of the prevailing
agency fee of the Union. Failure of an employee, cov-
ered by the Agreement, to remain in good standing
with the Union shall subject said employee to the sus-
pension of work privileges with the Wholesaler. The
Union shall provide an employee who is delinquent in
the payment of his/her dues and initiation fee, or agen-
cy fee (whichever is applicable) with reasonable writ-
ten notice of his/her delinquency to the Union (includ-
ing a statement of the precise amount due and the
months for which said dues or agency fees are owed),
the method used to compute the amount due and an ex-
NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 255
planation to the employee that the failure to pay said
delinquency within thirty (30) days shall, upon written
notification by the Union to the Wholesaler, result in
the suspension of work privileges for said employee
with the Wholesaler.
(b) The NMDU expends the monies collected pursu-
ant to the union-security provision on activities ger-
mane to collective bargaining, contract administration,
and grievance adjustment, herein called representational
activities, and on activities not germane to collective
bargaining, contract administration, and grievance ad-
justment, herein called nonrepresentational activities.
(c) At all material times since about September 24,
2008, a date 6 months prior to the filing of the amended
charge in Case 02–CB–021931, various unit employees
covered by the union-security provision have not been
members of the NMDU.
37. The NMDU has failed to inform C&S unit em-
ployees, including all nonmembers, of the following in-
formation:
(a) that they have the right to be or remain a nonmem-
ber;
(b) that they have a right as a nonmember to object to
paying for nonrepresentational activities and to obtain a
reduction in fees for such nonrepresentational activi-
ties;
(c) that they have the right to be given sufficient infor-
mation to enable them to intelligently decide whether to
object;
(d) that they have the right as a nonmember to be ap-
prised of any internal union procedures for filing objec-
tions.
38. By failing to provide employees of C&S notice
of their right under NLRB v. General Motors Corp., 373
U.S. 734 (1963), to be and remain nonmembers, and of
the rights of nonmembers under Communications
Workers v. Beck, 487 U.S. 735 (1988), to object to pay-
ing for union activities not germane to the Union’s du-
ties as bargaining agent, and to obtain a reduction in
dues and fees for such activities, while maintaining and
enforcing a union-security clause, the NMDU failed to
meet the notice requirements set forth in Paperworkers
Local 1033 (Weyerhaeuser Paper), 320 NLRB 349
(1995).
39. By letter dated August 6, 2010, the NMDU, by
Steven Goldstein, threatened to interfere with Daniel
Altieri’s employment with any employer with whom
the NMDU has a collective-bargaining relationship if
Altieri, an employee formerly employed by C&S, did
not pay a purported arrearage in union dues.
40. By the conduct described above in paragraphs 38
and 39, the NMDU has been restraining and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act in violation of Section 8(b)(1)(A)
of the Act.
41. By the conduct described above in paragraphs
30(a), 32, and 34, the NMDU has been attempting to
cause and causing an employer to discriminate against
its employees in violation of Section 8(a)(3) of the Act
in violation of Section 8(b)(1)(A) and (2) of the Act.
42. The unfair labor practices of the NMDU de-
scribed above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
43. The NMDU has not engaged in any other unfair
labor practice alleged in the C&S/Times complaint.
AMENDED REMEDY
Having found that the Union violated Section
8(b)(1)(A) and (2) of the Act, we shall order it to cease
and desist and to take certain affirmative action neces-
sary to effectuate the policies of the Act. Specifically,
we shall order the Union to cease and desist from giv-
ing effect to or enforcing any collective-bargaining
agreements or any other agreements that it has or had
with the New York Post, City and Suburban Delivery
Systems, Inc., or the New York Times which in any
way give preferences in hiring and promotion to one
group of employees over another group of employees
based either on their status as union members or on the
length of time that they have been employed as Regular
Situation Holders and/or Group 1 employees by union-
signatory employers other than the employers by whom
they are employed. Thus, we shall order the Union, in-
ter alia, to refrain from enforcing or implementing the
Group 2 preference in its collective-bargaining agree-
ment with the New York Post, and to notify the Post
and all bargaining unit employees who have been em-
ployed by the Post on or after April 10, 2008, that it
will no longer seek to enforce the discriminatory em-
ployment preferences.
To remedy the unlawful application of such agree-
ments to the New York Post’s Regular Situation Holder
and Group 1 lists, we shall order the Union to revise
those lists so that former C&S employees who were
hired by the Post will be given seniority standing only
from the time that they began their employment at the
Post, and to further revise the lists so that other Post
employees who have worked longer at the Post will be
given higher seniority status either as Regular Situation
Holders or as Group 1 extras than the former C&S em-
ployees. We shall also order the Union to submit these
revised lists to the Adjustment Board for approval and,
in addition, to request from the New York Post that it
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
also request approval of these lists from the Adjustment
Board.
We shall also order the Union to make whole, with
interest, New York Post employees who have suffered
any loss of earnings and other benefits because they
were disadvantaged (1) in daily hiring by the hiring of
Group 2 employees of other union-signatory employers;
(2) in promotion to the Post’s Group 1 list by the Un-
ion’s July 10, 2008 industry-wide freeze on all Group 1
lists; and/or (3) in promotion to the Post’s Group 1 list
by the Union’s use of seniority based on length of ser-
vice as a regular situation holder with other union-
signatory employers and/or union membership to pro-
mote former C&S employees to the Post’s Group 1 list
over the Post’s own Group 3 extras and Group 4 casuals
who had greater unit seniority, but were not members of
the Union. With respect to those disadvantaged in daily
hiring by the hiring of Group 2 employees of other un-
ion-signatory employers, the Union’s make-whole obli-
gation shall terminate after it takes the following steps:
(a) refrains from enforcing or implementing the Group
2 preference in its collective-bargaining agreement with
the New York Post; and
(b) notifies the Post and all bargaining unit employees
who have been employed by the Post on and after April
10, 2008, that it will no longer seek to enforce the dis-
criminatory employment preferences.
To remedy the unlawful preferences at the Times, we
shall order the Union to revise the bid list pursuant to
which C&S employees made their bids for buyouts and
transfers so that seniority is ordered based on the length
of time that employees worked for C&S or one of its
immediate predecessors as regular situation holders (as
reflected by their published and recognized made
steady dates) instead of on the length of time that C&S
employees worked as regular situation holders for other
union-signatory employers.19 In the event that C&S
employees who bid for buyouts had their bids rejected
because of their placement on the old list, and their bids
would have been accepted based on the revised list, the
Union shall request the New York Times to pay each of
these employees $100,000. If the New York Times de-
nies the request, then the Union shall make whole, with
19 The General Counsel excepts to the judge’s recommendation
that seniority in the revised list be determined by the length of time
employees worked for C&S or one of its immediate predecessors ra-
ther than their published and recognized made steady dates. Because
it accurately reflects the record, we find merit in this exception. The
General Counsel should review and approve any revision of this list,
and the Union should provide the General Counsel any documents
and/or records necessary to determine the proper placement of C&S
employees on this list.
interest, any C&S employee whose buyout bid should
have been accepted based on unit seniority with C&S.
Further, in the event that C&S employees who bid for
transfers had their bids rejected because of their place-
ment on the old list, and their bids would have been ac-
cepted based on the revised list, we shall order the Un-
ion to make whole, with interest, those employees who
should have qualified for transfers to the Times for any
loss of wages and other benefits they may have suffered
by reason of the NMDU’s discrimination against them.
We shall also order the Union to request that the New
York Times revise the seniority of the former C&S em-
ployees it hired so that, within this group of employees,
their relative seniority vis-à-vis each other reflects their
unit seniority as employees of C&S and not their union
seniority as employees of other union-signatory em-
ployers, and we shall order the Union to make whole,
with interest, those employees for any loss of wages
and other benefits they may have suffered by reason of
the Union’s decision to define seniority in the closing
agreement by industry-wide priority numbers.
To remedy the Union’s failure to inform unit em-
ployees in the respective Post and C&S bargaining units
of their General Motors and Beck rights, we shall order
the Union to provide the required notices to all unit em-
ployees. In addition, we shall order the Union to pro-
vide appropriate notices to the Charging Parties who
file Beck objections.
We shall further order the Union to notify in writing
those Post employees whom it initially sought to obli-
gate to pay dues or fees under the Post-NMDU con-
tract’s union-security clause on or after May 24, 2008,20
and those C&S employees whom it initially sought to
obligate to pay dues or fees under the C&S-NMDU
contract’s union-security clause on or after September
24, 2008,21 of their right to elect nonmember status and
to file Beck objections with respect to one or more of
the accounting periods covered by the complaint. With
respect to any such employees who, with reasonable
promptness after receiving the notices, elect nonmem-
ber status and file Beck objections for any one of those
periods, we shall order the Union, in the compliance
stage of the proceeding, to process their objections,
nunc pro tunc, as it otherwise would have done, in ac-
cordance with the principles of California Saw & Knife
Works, 320 NLRB 224 (1995), enfd. sub nom. Machin-
20 May 24, 2008, is the date 6 months prior to the filing and service
of the amended charge in Case 02–CB–021762; see Sec. 10(b) of the
Act.
21 September 24, 2008, is the date 6 months prior to the filing and
service of the amended charge in Case 02–CB–021931; see Sec.
10(b) of the Act.

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 257
ists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. de-
nied sub nom. Strang v. NLRB, 525 U.S. 813 (1998).
The Union shall then be required to reimburse the ob-
jecting nonmembers for the reduction, if any, in their
dues and fees for nonrepresentational activities that oc-
curred during the accounting period or periods covered
by the complaint with respect to which they have ob-
jected. See, e.g., Paperworkers Local 987 (Sun Chemi-
cal Corp. of Michigan), 327 NLRB 1011, 1012 (1999).
We shall also order the Union to notify Daniel Altieri
in writing that it will not seek to prevent him from be-
ing employed by any employers because of his purport-
ed failure to pay dues while he was employed at his last
employer.
Where a make-whole remedy is appropriate, backpay
due to unfair labor practices resulting in cessation of
employment status shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), compounded on a
daily basis as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). Otherwise, backpay shall
be computed in accordance with Ogle Protection Ser-
vice, Inc., 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest at the rate prescribed in
New Horizons for the Retarded, supra, compounded on
a daily basis as prescribed in Kentucky River Medical
Center, supra.
Finally, any amounts to be reimbursed to Beck objec-
tors under our Order will be with interest as prescribed
in New Horizons for the Retarded, supra.
ORDER
The Respondent, Newspaper and Mail Deliverers’
Union of New York and Vicinity (NMDU), Long Is-
land City, New York, its officers, agents, and represent-
atives, shall
1. Cease and desist from
(a) Giving effect to or enforcing any collective-
bargaining agreements or any other agreements that it
has or had with the New York Post, City and Suburban
Delivery Systems, Inc., or the New York Times that in
any way give preferences to one group of employees
over another group of employees based on their mem-
bership in the NMDU and/or their employment with an
employer that has or had a collective-bargaining rela-
tionship with the NMDU.
(b) Causing or attempting to cause the New York
Post to discriminate against employees in the New York
Post bargaining unit by giving hiring preferences to
nonunit individuals based on their membership in the
NMDU and/or their employment with an employer that
has or had a collective-bargaining relationship with the
NMDU.
(c) Causing or attempting to cause the New York
Post to prevent the promotion of individuals from
Group 3 to Group 1 status in order to give preference in
promotion to nonunit individuals based on their em-
ployment with an employer that has or had a collective-
bargaining relationship with the NMDU and/or their
membership in the NMDU.
(d) Causing or attempting to cause City & Suburban
Delivery Systems and the New York Times to discrimi-
nate against certain employees in their respective bar-
gaining units by entering into and implementing a clos-
ing agreement that gave an employment preference
based on employment with an employer that has or had
a collective-bargaining agreement with the NMDU
and/or membership in the NMDU.
(e) Failing to inform employees whom it seeks to ob-
ligate to pay dues and fees under a union-security
clause of their right under NLRB v. General Motors
Corp., 373 U.S. 734 (1963), to be and remain nonmem-
bers, and of the rights of nonmembers under Communi-
cations Workers v. Beck, 487 U.S. 735 (1988), to object
to paying for union activities not germane to the Un-
ion’s duties as bargaining agent, and to obtain a reduc-
tion in dues and fees for such activities.
(f) Threatening to bar employees from employment
with other employers because of a purported dues ar-
rearage at their last employer.
(g) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Revise the seniority lists so that those employees
who were hired from City and Suburban Delivery Sys-
tems, Inc. by the New York Post will have seniority on-
ly from the date of their employment at the New York
Post, and further revise seniority lists so that other New
York Post employees who have worked longer at the
Post are given greater seniority status either as regular
situation holders or as Group 1 extras; submit these re-
vised lists to the Adjustment Board for approval; and
request from the New York Post that it also request ap-
proval of these lists from the Adjustment Board.
(b) Make whole, with interest, and as specified in the
Amended Remedy, any employees of the New York
Post for any loss of earnings and other benefits suffered
as a result of (1) the enforcement or application of any
provision in the NMDU-New York Post collective-
bargaining agreement that resulted in the inclusion of
any non–New York Post bargaining unit employee in
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Group 1 list ahead of existing Group 3 extras and
Group 4 casuals; (2) the enforcement or application of
provisions in the NMDU-New York Post collective-
bargaining agreement that resulted in the assignment of
extra work to individuals on the NMDU’s Group 2 list
rather than to Group 3 extras or Group 4 casuals; or (3)
the NMDU’s failure in July 2008 to hold a meeting of
the Adjustment Board to elevate Group 3 extras to
available positions on the Group 1 list.
(c) Notify the Post and all bargaining unit employees
who have been employed by the Post on or after April
10, 2008, that it will no longer seek to enforce the dis-
criminatory employment preferences that have been
found unlawful.
(d) Compensate any Post employees entitled to be
made whole, as set out in paragraph 2(b) of this Order,
for any adverse income tax consequences of receiving
their backpay in one lump sum.
(e) Revise the bid list pursuant to which C&S em-
ployees made their bids for buyouts and transfers to the
New York Times so that relative seniority for former
C&S regular situation holders is determined by their
published and recognized made steady dates instead of
by the length of time that C&S employees worked as
regular situation holders for other union-signatory em-
ployers. If any C&S employees who bid for buyouts
had their bids rejected because of their placement on
the old list, and their bids would have been accepted
based on the revised list, the Union shall request the
New York Times to pay each of these employees
$100,000. If the New York Times denies the request,
the Union shall make whole, with interest, any C&S
employee whose buyout bid should have been accepted
based on unit seniority with C&S. Further, if any C&S
employees who bid for transfers had their bids rejected
because of their placement on the old list, and their bids
would have been accepted based on the revised list, the
Union shall make them whole, with interest, for any
loss of wages and other benefits suffered by reason of
the NMDU’s discrimination against them.
(f) Request the New York Times to revise the sen-
iority of the former C&S employees it hired so that,
within this group of employees, their relative seniority
vis-à-vis each other reflects their unit seniority as em-
ployees of C&S as determined by their published and
recognized made-steady dates instead of by their union
seniority as employees of other union-signatory em-
ployers, and make whole, with interest, those employ-
ees for any loss of wages and other benefits suffered by
reason of the Union’s decision to define seniority in the
closing agreement by industry-wide priority numbers.
(g) Compensate any C&S employees entitled to be
made whole, as set out in paragraphs 2(e) and (f) of this
Order, for any adverse income tax consequences of re-
ceiving their backpay in one lump sum.
(h) Notify in writing all bargaining unit employees of
the New York Post and the New York Times of their
right to be and remain nonmembers, and of the rights of
nonmembers to object to paying for union activities not
germane to the Union’s duties as bargaining agent, and
to obtain a reduction in dues and fees for such activi-
ties. In addition, this notice must include sufficient in-
formation to enable employees intelligently to decide
whether to object, as well as a description of any inter-
nal union procedures for filing objections.
(i) Notify in writing those Post employees whom the
Union initially sought to obligate to pay dues or fees
under the union-security clause on or after May 24,
2008, of their right to elect nonmember status and to
file Beck objections with respect to one or more of the
accounting periods covered by the complaint.
(j) Notify in writing those former C&S employees
whom the Union initially sought to obligate to pay dues
or fees under the union-security clause on or after Sep-
tember 24, 2008, of their right to elect nonmember sta-
tus and to file Beck objections with respect to one or
more of the accounting periods covered by the com-
plaint.
(k) With respect to any employees who, with reason-
able promptness after receiving the notices prescribed
in paragraphs 2(i) and (j) of this Order, elect nonmem-
ber status and file Beck objections, process their objec-
tions in the manner set forth in the amended remedy
section of this decision.
(l) Reimburse with interest any nonmember unit em-
ployees who file Beck objections with the Union for
any dues and fees exacted from them for nonrepresenta-
tional activities, in the manner set forth in the amended
remedy section of this decision.
(m) Notify Daniel Altieri that the Union will not
cause or attempt to cause any employer to refuse to give
him employment because of his purported failure to pay
union dues when he was employed by his last employ-
er.
(n) Within 14 days after service by the Region, post
at its office in Long Island City, New York, and on any
union bulletin board(s) maintained by it at the New
York Post’s facility in Bronx, New York, and at the
New York Times facility in New York, New York, cop-
ies of the attached notice marked “Appendix.”22 Cop-
22 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 259
ies of the notice, on forms provided by the Regional Di-
rector for Region 2, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees and members are customarily posted. In
addition to the physical posting of paper notices, notic-
es shall be distributed electronically, such as by email,
posting on an intranet or an internet site, or other elec-
tronic means, if the Respondent customarily communi-
cates with employees and members by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. Because City and Suburban
Delivery Systems, Inc. has gone out of business, the
Union shall duplicate and mail, at its own expense, a
copy of the notice to all former employees employed by
C&S at any time between November 20, 2008, and
January 4, 2009, inclusive.
(o) Within 14 days after service by the Region, deliv-
er to the Regional Director for Region 2 signed copies
of the notice in sufficient number for posting by the
New York Post at its Bronx, New York facility, if it
wishes, and for posting by the New York Times at its
New York, New York facility, if it wishes, in all places
where notices to employees are customarily posted.
(p) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.”
WE WILL NOT give effect to or enforce any collective-
bargaining agreements or any other agreements that we
have or had with the New York Post, City and Subur-
ban Delivery Systems, Inc., or the New York Times
that in any way give preferences to one group of em-
ployees over another group of employees based on (1)
their union membership and/or (2) their employment
with an employer that has or had a collective-
bargaining relationship with the Newspaper and Mail
Deliverers’ Union of New York and Vicinity (NMDU).
WE WILL NOT cause or attempt to cause the New
York Post to discriminate against employees in the New
York Post bargaining unit by giving hiring preferences
to nonunit individuals based on (1) their union member-
ship and/or (2) their employment with an employer that
has or had a collective-bargaining relationship with the
NMDU.
WE WILL NOT cause or attempt to cause the New
York Post to prevent the promotion of individuals from
Group 3 to Group 1 status in order to give preference in
promotion to other individuals based on (1) their union
membership and/or (2) their employment with an em-
ployer that has or had a collective-bargaining relation-
ship with the NMDU.
WE WILL NOT cause or attempt to cause the New
York Times to discriminate against certain employees
in the Times bargaining unit by giving an employment
preference based on (1) union membership and/or (2)
employment with an employer that has or had a collec-
tive-bargaining relationship with the NMDU.
WE WILL NOT fail to inform employees whom we
seek to obligate to pay dues and fees under a union-
security clause of their right under NLRB v. General
Motors Corp., 373 U.S. 734 (1963), to be and remain
nonmembers, and of the rights of nonmembers under
Communications Workers v. Beck, 487 U.S. 735 (1988),
to object to paying for union activities not germane to
our duties as bargaining agent, and to obtain a reduction
in dues and fees for such activities.
WE WILL NOT threaten to bar employees from em-
ployment with other employers because of a purported
dues arrearage at their last employer.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights listed above.
WE WILL submit revised seniority lists of those em-
ployees who were hired from City and Suburban Deliv-
ery Systems, Inc. so that they will have seniority only
from the date of their employment at the New York
Post, and further revise any seniority lists so that other
New York Post employees who have worked longer at
the Post are given greater seniority status either as Reg-
ular Situation Holders or as Group 1 extras; WE WILL

260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
submit these revised lists to the Adjustment Board for
approval; and WE WILL request from the New York Post
that it also request approval of these lists from the Ad-
justment Board.
WE WILL make whole, with interest, any employees
of the New York Post for any loss of earnings and oth-
er benefits suffered as a result of (1) the enforcement or
application of any provision in the NMDU-New York
Post collective-bargaining agreement that resulted in
the inclusion of any non-New York Post bargaining unit
employee in the Group 1 list ahead of existing Group 3
extras and Group 4 casuals; (2) the enforcement or ap-
plication of provisions in the NMDU-New York Post
collective-bargaining agreement that resulted in the as-
signment of extra work to individuals on the NMDU’s
Group 2 list rather than to Group 3 extras or Group 4
casuals; or (3) our failure in July 2008 to hold a meet-
ing of the Adjustment Board to elevate Group 3 extras
to available positions on the Group 1 list.
WE WILL notify the Post and all bargaining unit em-
ployees who have been employed by the Post on or af-
ter April 10, 2008, that we will no longer seek to en-
force the discriminatory employment preferences found
unlawful.
WE WILL revise the bid list pursuant to which C&S
employees made their bids for buyouts and transfers to
the New York Times so that seniority is determined by
their published and recognized made steady dates in-
stead of by the length of time that C&S employees
worked as regular situation holders for other union-
signatory employers. If any C&S employees who bid
for buyouts had their bids rejected because of their
placement on the old list, and their bids would have
been accepted based on the revised list, WE WILL re-
quest the New York Times to pay each of these em-
ployees $100,000. If the New York Times denies the
request, WE WILL make whole, with interest, any C&S
employee whose buyout bid should have been accepted
based on unit seniority with C&S. Further, if any C&S
employees who bid for transfers had their bids rejected
because of their placement on the old list, and their bids
would have been accepted based on the revised list, WE
WILL make whole, with interest, those employees who
should have qualified for transfers to the Times for any
loss of wages and other benefits suffered by reason of
our discrimination against them.
WE WILL request the New York Times to revise the
seniority of the former C&S employees it hired so that,
within this group of employees, their relative seniority
vis-à-vis each other reflects their unit seniority as em-
ployees of C&S as determined by their published and
recognized made steady dates instead of their union
seniority as employees of other union-signatory em-
ployers, and WE WILL make whole, with interest, those
employees for any loss of wages and other benefits suf-
fered by reason of our decision to define seniority in the
C&S closing agreement by industry-wide priority num-
bers.
WE WILL compensate any employees of the New
York Post, City & Suburban Delivery Systems, and the
New York Times entitled to be made whole by reason
of our discrimination against them for any adverse in-
come tax consequences of receiving their backpay in
one lump sum.
WE WILL notify in writing all bargaining unit em-
ployees of the New York Post and the New York Times
of their right to be and remain nonmembers, and of the
rights of nonmembers to object to paying for union ac-
tivities not germane to our duties as bargaining agent,
and to obtain a reduction in dues and fees for such ac-
tivities. In addition, this notice will include sufficient
information to enable employees intelligently to decide
whether to object, as well as a description of any inter-
nal union procedures for filing objections.
WE WILL notify in writing those New York Post em-
ployees whom we initially sought to obligate to pay
dues or fees under the union-security clause on or after
May 24, 2008, of their right to elect nonmember status
and to file Beck objections with respect to one or more
of the accounting periods covered by the complaint.
WE WILL notify in writing those former C&S em-
ployees whom we initially sought to obligate to pay
dues or fees under the union-security clause on or after
September 24, 2008, of their right to elect nonmember
status and to file Beck objections with respect to one or
more of the accounting periods covered by the com-
plaint.
WE WILL, with respect to any employees who, with
reasonable promptness after receiving the notices pre-
scribed above, elect nonmember status and file Beck
objections, process their objections in the manner set
forth in the Board’s decision.
WE WILL reimburse with interest any nonmember
unit employees who file Beck objections for any dues
and fees exacted from them for nonrepresentational ac-
tivities, in the manner set forth in the Board’s decision.
WE WILL notify Daniel Altieri that we will not cause
or attempt to cause any employer to refuse to give him
employment because of his purported failure to pay un-
ion dues when he was employed by his last employer.

NEWSPAPER AND MAIL DELIVERERS’ UNION OF
NEW YORK AND VICINITY

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 261
The Board’s decision can be found at
www.nlrb.gov/case/02–CB–021740 or by using QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.

Olga C. Torres, Esq., Susannah Ringel, Esq., and Colleen
Fleming, Esq., for the General Counsel.
Dan Silverman, Esq. and Warren Mangan, Esq., for the Re-
spondent.
Michael J. Lebowich, and Corinne M. Osborn, Esqs., for the
New York Times and Elliot S. Azoff, Esq., for the New
York Post.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in New York on various dates from September 19, 2011,
to October 5, 2011. The charges and the amended charges in
these consolidated cases were filed by the respective charging
parties on various dates commencing in October 2008.
On January 26, 2011, the Acting Regional Director issued a
consolidated complaint in Cases 02–CB–21740, 02–CB–22366,
02–CB–21749, 02–CB–21762, 02–CB–21827, 02–CB–21828,
02–CB–21829, 02–CB–21845, and 02–CB–21905. These
charges and the consolidated complaint based on these charges
all relate the events and transactions involving the New York
Post.
On January 26, 2011, the Acting Director issued a consoli-
dated complaint in Cases 02–CB–21842, 02–CB–21899, 02–
CB–21931, and 02–CB–21941. This consolidated complaint
dealt with a set of facts relating to a company called City and
Suburban and the New York Times. This complaint was later
amended on April 25, 2011, and added three additional charges
in Cases 02–CB–219946, 02–CB–22015, and 02–CB–22051.
All of these charges and allegations arose out of the circum-
stance that a company called City and Suburban, a newspaper
wholesaler, went out of business in late 2008. (City and Subur-
ban will mainly be referred to as C&S). The delivery depart-
ment employees of that Company, numbering about 500, which
was a wholly owned subsidiary of the New York Times, were
represented for bargaining purposes by the respondent union.
(Herein called either the Union or the NMDU). In anticipation
of the closing, the Union sought and made arrangements with
the New York Times (the parent corporation), to either offer the
permanent employees or a class of regular part-time employees
of C&S (a) a buyout of $100,000, (b) an arrangement where
some of the employees would to be transferred to the payroll of
the New York Times, or (c) to receive severance pay. (The
severance pay option was the least favorable to the employees).
In addition, the Union sought and obtained the consent of some
of the other union-signatory companies, including the New
York Post, to hire at least some of these C&S employees.
The Contentions of the Parties
Issue I
In the context of the New York Post cases, the General
Counsel alleges that a longstanding provision in the Hir-
ing/Seniority clause of the collective-bargaining agreement
(and predecessor contracts), relating to Group 2 employees is
illegal on its face. The theory is that this contract provision
gives automatic preference for daily job assignments at the Post
to certain permanent and regular part-time employees employed
at other companies having contracts with the NMDU (union
signatories), and who, for the most part, are union members,
over a category of regular part-time employees of the Post who
are classified in Group 3 and who are not eligible for union
membership. It is noted, that this provision in the NMDU/Post
contract is identical to almost all contracts that the Union has
maintained with other employers in the industry and the provi-
sion has been in existence for at least 40 years.1 This priority
preference has been in multiple successive contracts and the
General Counsel alleges that its continued application within
the 10(b) statute of limitations period is a continuing violation.
A more complete description of the hiring/seniority practices
will be described below.
With respect to the above, it should be noted that the collec-
tive bargaining agreements between the NMDU and the various
employers including the Post do not explicitly state that any
preference for hiring, job assignments, or anything else is based
on union membership or length of time that an individual has
been a union member.
On the other hand, the contract clearly does set up a category
of employees (Group 2), who are given daily preferences over
nonunion employees, with respect to hiring assignments based
on the former’s length of service with union-signatory compa-
nies in circumstances where these employees are not part of a
multiemployer bargaining unit. See Seafarers International
Union, 244 NLRB 641 (1979), where the Board concluded that
the General Counsel established a prima facie case that Re-
spondent’s implementation of a hiring hall referral system, in
strict adherence to the seniority preferences and in tandem with
the union-security requirements upon signatory employers,
unlawfully favored jobseekers who were union members over
nonmembers and also required signatory employers to discrim-
inate with respect to hiring.
If it is determined that the Group 2 hiring provisions in the
1 An exception involves a predecessor company of C&S (Imperial
Delivery), that had negotiated a separate contract with the NMDU
and had been successful in eliminating the hiring/seniority provision
in the typical contracts that the NMDU made with other employers in
the industry.

262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Post contract is a violation of the Act, the remedy would be to
require the NMDU to not enforce or to rewrite its collective-
bargaining agreement with the Post to eliminate the Group 2
preference entirely. Presumably, this would also form a prece-
dent requiring the reformation of all contracts between the
NMDU and other employers having the same or substantially
similar contract provisions. A remedy might also require the
Union to make whole any employees of the Post who lost job
opportunities because of the Group 2 hiring preference. How-
ever, any backpay would be limited to a period starting from 6
months prior to the filing of the charges.
Issue II
Another allegation in the New York Post cases involves the
contention that in January 2009, about 50 employees of the
closed City and Suburban (C&S), who opted for job transfers
(instead of the buyouts), were hired by the Post (with the lat-
ter’s agreement), and were given seniority preferences over a
category of existing New York Post part-time employees who
were not union members at the time. It is alleged that this pref-
erence that was acceded to by the Post, was based on the fact
that the employees transferred from C&S were either union
members and/or were employed in union-signatory shops, as
opposed to the particular group of adversely affected Post em-
ployees who were not eligible for union membership. Because
the Post and the C&S bargaining units were separate and dis-
tinct, the General Counsel alleges that this preference was un-
lawful and that the Union, by entering into such an agreement
with the Post, caused or attempted to cause the Post to discrim-
inate against employees who were not union members. Or put
in a different way, to discriminate in favor of individuals who
were union members or who had worked in shops having a
collective-bargaining agreement with the Union.
If the General Counsel is successful in proving its case in re-
lation to the Post, one aspect of the remedy would be that em-
ployees who were employed by the Post before the transfers
and who were passed over in terms of Post seniority, should
bump all of the employees of C&S who were hired by the Post.
To the extent that it is shown, either in the principle case or in a
compliance setting, that some of the disadvantaged employees
did not receive work because of their lower rank, the Union
would be liable to make them whole for lost income or benefits.
(No charges were filed against the Post and therefore the com-
pany is not a party defendant to these actions. Accordingly, it
would not be liable for damages or subject to any mandatory
affirmative relief.)
Issue III
The allegations involving C&S and the New York Times al-
so arise out of the events that transpired in anticipation of and
after C&S went out of business.
As noted above, C&S was a wholly owned subsidiary of the
New York Times. In anticipation of its closing, the Union and
the Times entered into an agreement that provided for the fol-
lowing. The permanent employees of C&S (as opposed to any
casual employees), were offered three choices. A buyout in the
amount of $100,000 was offered to 140 employees and the
opportunity to make this selection was based on a form of sen-
iority represented by what is called an industrywide priority
number. This, as will be explained later on, is not necessarily
the same as the seniority date for the employees of C&S and in
some cases may be older. For many of the older employees
nearing retirement, the buyout was the optimal choice and ulti-
mately there were 140 C&S employees whose choice for this
option was initially granted. The Times also offered 65 posi-
tions on its own payroll for those individuals who opted for that
choice. Again, the employees were selected on the basis of
their industrywide priority numbers instead of their seniority
with C&S. Finally, for the remainder, who neither had the
requisite low priority number to obtain 1 of the 140 buyouts or
1 of the 65 transfers, they were relegated to a rather meager
severance pay package.
Without going into all the details, it is the General Counsel’s
theory that this agreement with the Times that was made in late
2008 and implemented in January 2009, was unlawful and that
the Union violated Section 8(b)(2) because it caused the Times
to utilize a method for selecting employees for buyouts or
transfers based not on their actual seniority with C&S, but
based on their total length of service in the industry including
their employment with other employer’s having collective-
bargaining agreements with the Union.
If the General Counsel is successful in proving the above al-
legations, the remedy would require the Union to recalculate
the list of people who chose and were selected for the buyouts
and/or the transfers. The Union would then be required to pre-
sent the new lists to the Times which would be asked to make
the payouts based on their seniority status with C&S and not
based on the lowest industrywide priority numbers. If the
Times refused to make the payments pursuant to the revised
order, the Union would then be liable for the money. In this
case, the Times had held back payment to the last six individu-
als on the buyout list pending the outcome of this case. Thus, it
is possible that some or all of these individuals will get the
money and that another group of individuals will not.
A subset of this issue is whether within the group of former
C&S employees hired by the Times, their relative seniority vis-
a-vis each other was improperly determined.
Issue IV
There is an alternative allegation in the New York Times
cases involving three employees named Grados, Atkins, and
Gojani. The General Counsel claims that these three individuals
should have had their buyout bids accepted because they should
have been given lower industrywide priority numbers than the
ones that they actually received. It also is claimed that when
requested to change their numbers within the 10(b) period, the
Union refused to do so for arbitrary or invidious reasons.
I must confess that I am not sure what the General Counsel
proposes should be their correct numbers. The evidence seems
to point to the fact that numbers were assigned to them as of the
time that they received promotions at C&S to regular situation
holder status, which would be consistent with the Union’s
longstanding practice.
The General Counsel pointed to Newspaper & Mail Deliv-
ers’ Union of New York (City and Suburban Delivery System),
332 NLRB 870 (2000), where the Board concluded that the
Union caused C&S to refuse to promote, in 1998, three other
NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 263
individuals (Eduardo Valentin, Jimmy Clark and Willie Miles),
to permanent regular situation holder positions because they
either were or were perceived by the Union to be strike break-
ers in 1992. I may be mistaken, but it seems that the General
Counsel is implying that Grados, Atkins, and Gojani, who also
were strike breakers at the same time, should be placed in the
same shoes as Valentin, Clark, and Miles. But the Board’s deci-
sion in that case only included the three charging parties in the
Remedy and since that case has been closed for a good long
time, the Respondent could argue that the General Counsel is
improperly attempting to relitigate the prior case on behalf of a
new set of charging parties.
Issue V
The complaint alleges violations of the Act under Communi-
cations Workers of America v. Beck, 487 U.S. 735 (1988).
Basically, the complaint alleges that employees have not been
given adequate notice of their rights to refrain from joining the
Union and that the agency fees should not be required on non-
members.
Issue VI
The charge filed by Daniel Altieri (Case 02–CB–22701), as-
serts that on August 6, 2010, the Union, by letter, threatened
him with loss of employment with any union-signatory em-
ployer because he was in arrears on his union dues at C&S.
A summary of the arguments by the General Counsel
and the Union
The Union does not contest the fact that it sought and ob-
tained agreement by the Post to give the full-time employees
and a category of regular part-time employees of C&S certain
preferences over certain part time employees of the New York
Post. There is also no question but that as a result of this pref-
erence, the transferred C&S employees thereby enjoyed certain
benefits over the preexisting nonunion Post part-time employ-
ees in terms of job selection, vacation selection, etc.
Nor does the Union contest the fact that among the former
employees of C&S, the closing agreement with the Times af-
fected their ability to choose buyouts and/or job transfers.
Thus, some employees who had more seniority with C&S were
passed over by some other employees of C&S who had lower
industrywide priority numbers, meaning that they had worked
longer in the “industry.” Coincidently, as priority numbers
generally are given out at the time that an employee becomes
eligible for union membership (and for the most part such em-
ployees join the union), the priority number will in almost all
cases correspond to the date that an individual becomes a union
member. (There are a very few exceptions which will be dis-
cussed below).
The Union argues that in accordance with the terms of its
collective-bargaining agreements with the Post and the Times,
both companies had agreed that in the event that if any of a
named group of companies (all having contracts with the Un-
ion), went out of business, then the remaining employers would
give preference in hiring to certain employees of the defunct
company and upon hire, place those people ahead of certain
casual employees that were already employed by the acquiring
employers. In this respect, the Union argues that it is or should
be legal for it to make an agreement with unionized employers
whereby a system of industrywide “seniority” is used to deter-
mine how to manage a situation where a large number of em-
ployees at a union-signatory company lose their jobs when that
company goes out of business. The Union contends that the
preferences were not based on whether individuals were union
members or on their length of union membership, but rather on
their length of service within the “industry.” I do note howev-
er, that when the Union uses the word “industry” it is referring
only to companies that have collective-bargaining agreements
with the NMDU. Excluded from its definition of the “industry”
are any companies that deliver newspapers or magazines within
the same geographic area but whose employees are not repre-
sented by the Union. And in this connection, it is apparent
from the record that such companies do exist and have been
utilized by the Post in the past.
Moreover, the Union’s definition of the “industry,” which
limits it to companies who only deliver newspapers and maga-
zines could be construed artificial in itself. The essential func-
tion of this group is to deliver a physical product from one
place to another, utilizing trucks. As far as I can see, the work
here does not involve any kind of specialized knowledge or
skills. There are, no doubt, tens of thousands of people in the
greater New York Metropolitan area who have Commercial
Drivers Licenses and who drive trucks for thousands of compa-
nies that do not have contracts with the NMDU. Thus, the
universe of potential employees who could do this work is huge
and all of these people, if they seek work at the Post, would be
at a disadvantage vis-a-vis any person who was a steady em-
ployee at an NMDU signatory company other than the New
York Post and who was in the Group 2 category. And as noted
above, people in the Group 2 category are and have been, with
the most minor of exceptions, NMDU members.
The General Counsel counters that even if the arrangements
made in late 2008 were based on industry seniority, that meas-
ure of seniority (in the form of industrywide priority numbers),
was based on an employee’s length of service with union-
signatory companies. While agreeing that the use of a form of
industrywide seniority might have been appropriate if it were
applied to employees within a multiemployer bargaining unit
encompassing C&S, the New York Times, and the New York
Post, the General Counsel argues that by the time of the events
in this case, none of these companies bargained through a mul-
tiemployer association and neither the employees of the Times,
the Post, nor C&S were part of any multiemployer bargaining
unit.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following2
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The parties agree and I find that the Respondent is a labor
organization within the meaning of Section 2(5) of the Act. It
2 The unopposed motion to correct the transcript filed by the Gen-
eral Counsel is hereby granted. See Appendix A.

264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
also is agreed that the New York Times and the New York Post
are employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. It therefore is concluded
that the actions by the Respondent union would affect com-
merce within the meaning of the Act.
II. THE FACTS
There is little or no dispute about the facts in these cases.
The basic facts are well known and the different positions of
the parties relate to what inference can reasonably be drawn
from those facts and how the law should be applied.
(a) A Bit of History
The Union has been in existence from the beginning of the
20th century and has represented in the New York Metropolitan
area, employees who have been delivering newspapers and
magazines.3 These employees, who basically work as truck
drivers, have been employed either directly by publishers, such
as the New York Times, the Daily News, the Post, and a variety
of other smaller or now defunct newspapers, or by a group of
relatively small companies that perform delivery services for
the publishers. The latter enterprises are called wholesalers.
For many years, the Union has represented these types of
employees in two major multiemployer associations. The Pub-
lishers’ Association of New York City essentially was an asso-
ciation of newspaper publishers that bargained collectively on
behalf of its employer members with respect to their delivery
department employees. At one time or another, the New York
Times and The Post were members of this association. The
other major association was the Suburban Wholesalers’ Associ-
ation which represented a group of wholesale delivery compa-
nies.
There also have been some publishers, such as the Daily
Forward, that have always bargained separately from any asso-
ciation.
At the time that the events in these cases transpired, both
multiemployer associations had become defunct and the there
no longer existed any multiemployer bargaining units.
The nature of this industry is that the Employers have tended
to employ a group of regular employees (mostly men), who
work day in and day out throughout the year. These people are
called regular situation holders and are sometimes referred to in
the contract or other documents as RHSs. However, the prac-
tice has been that employers have, at times, also tended to em-
ploy extra employees who shape up for work and who are given
assignments on a daily basis when the regular work force is
insufficient to get the newspapers out.
The other basic tendency regarding employment in this in-
dustry is that there has been a significant degree of nepotism
whereby the sons of current employees and union members
have had a big leg up in obtaining employment and preferred
seniority status. See Judge Pierce’s Decision in Patterson v.
NMDU et al, 384 F. Supp. 585 (S.D.N.Y. 1974).
3 The employees represented by the Union have been employed by
a variety of companies within a geographic area consisting of the City
limits of New York City, and all territory within a radius of about 50
miles from Columbus Circle. This area includes Long Island, parts of
New Jersey, parts Westchester, and portions of lower Connecticut.
In or about 1952, the Union convinced all of the employers
with which it maintained contracts to set up a hierarchal struc-
ture for hiring extra employees.4 Thus, each employer would
have a group of steady employees that were called regular situ-
ation holders and would also be required to employ extras with-
in a defined structure. The extras were divided into four cate-
gories as follows:
Group 1. Until 1974, this group consisted of persons who
once had regular situations in the industry. That is, anyone who
at any time had been employed as a regular situation holder by
any employer within the Greater New York Metropolitan area
that had a collective-bargaining agreement with the Union.
Each union-signatory publisher or wholesaler maintained its
own Group 1 list and the individuals on that list would general-
ly have first crack at delivery jobs that were available on any
given day in the order of their seniority on the Group 1 list.
After 1974, the Group 1 list was changed to include former
regular situation holders who had lost their regular situations or
Group 1 status at another NMDU signatory employer within the
industry. 5
Group 2. The people on the Group 2 list consist of individu-
als who are employed by any union-signatory employer within
the Greater New York Metropolitan area and who either are
employed by those companies as regular situation holders or
have been employed as Group 1 extras by those companies.
The Group 2 list is an industrywide list that is compiled by the
Union and this is unlike the Group 1 lists that are maintained
separately by each employer. People on the industrywide
Group 2 list are entitled to shape for extra work at any signato-
ry company and be accorded the next highest preference after
all people on the particular employer’s Group 1 list have been
exhausted. Relative seniority on the Group 2 list depends on
when an individual first was promoted to a Group 1 list. Be-
cause an individual almost invariably becomes a union member
and given a union number at the same time he is promoted to a
Group 1 list, his place on the Group 2 list is coextensive with
the date that he because a union member. (Except for the very
rare instance where a person may have decided not to become a
member and opted to pay an agency fee instead).
Group 3. The people on this list are those individuals who
regularly shape for work at a particular employer and who ob-
tain regular work over a given period of time.6 Each employer
maintains its own Group 3 list and the people on that list could
be described as regular part-time employees of that particular
employer. The individuals on an employer’s Group 3 list will
obtain work by their particular employer after that company’s
regular situation holders go out; after the Group 1 list has been
4 At that time, the Union dealt with employers within a multiem-
ployer bargaining context and it thereby was far easier to reach
agreements affecting multiple employers.
5 It is significant to me that it is agreed that when the word indus-
try is used by the parties they mean to include only employers that
utilize delivery employees within the Greater New York area that
have collective bargaining agreements with the Union.
6 For an individual to maintain his Group 3 status, he is required to
work 5 days/nights per week and shape 6 days/nights per week. The
people on any employer’s Group 3 list, therefore cannot by any
stretch of the imagination, be described as casual employees.

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 265
exhausted; and after anyone who shows up for work and who
happens to be on the Union’s Group 2 list has been sent out to
work. People on the Group 3 lists generally have seniority
within that list and within the particular company that employs
them. Unlike employees who are regular situation holders or
on Group 1 lists (and who therefore also have Group 2 status),
people on a Group 3 list are prohibited from becoming a union
member although their conditions of employment are defined
by whatever collective bargaining agreement the Union has
with their employer. Also, although barred from union mem-
bership, people on Group 3 lists are required to pay regular fees
to the Union.
As employees who are regular situation holders leave their
employers for retirement, illness etc., employees who are on
that employer’s Group 1 list will move up to fill the spaces of
those regular situation holders who leave. This then makes
space for additions to the employer’s Group 1 list, and often,
but not always, those openings are drawn from individuals on
that employer’s Group 3 list as mutually agreed to by the Union
and the employer involved. Upon being elevated from an em-
ployer’s Group 3 list to that employer’s Group 1 list, the em-
ployee, under the terms of the collective-bargaining agree-
ment’s union-security clause, is required to become a union
member. (At some point, it was recognized by the union that
the union-security clause could not require actual membership;
albeit the Union could require the payment of reasonable fees).
As a practical matter, the evidence shows that with extremely
rare exceptions, the people who are promoted from Group 3 to
Group 1 status invariably and simultaneously become union
members.
Group 4. People in Group 4 are true casual employees and if
a company even chooses to have a Group 4 list, the individuals
on this list are given work as a last resort. Like people on a
Group 3 list, people on a Group 4 list cannot become union
members although their wages and conditions of employment
are determined by the relevant contract with the employer from
whom they seek work. For purposes of this case, the Group 4
provision of the contract is not relevant as there is no conten-
tion here that any people in this category were discriminated
against.
As noted above, although there never was a single multiem-
ployer bargaining unit comprising all of the New York publish-
ers and/or wholesalers, a good many of the employees repre-
sented by the Union, either as regular situation holders or as
members of one of the extra groups, were employed by compa-
nies that in the past were members of two major employer as-
sociations. However, this changed when those associations
ceased to exist as bargaining organizations. Therefore, whatev-
er multiemployer bargaining units that may once have existed,
have long since been disappeared.
In 1973, the EEOC sued the Union and most or all of the
publishers and wholesalers having contracts with the Union.
Additionally, a class of minority persons sued the Union and
the employers, claiming racial or ethnic discrimination in terms
of hiring practices in violation of Title VII of the Civil Rights
Act of 1964. These cases were consolidated and were tried
before a Judge of the United States District Court.
After 4 weeks of hearings, a settlement was reached and exe-
cuted by the Union and the defendant employers, including the
New York Times and the New York Post. Notwithstanding
some objections by some of Union’s members, the Judge issued
a decision approving the settlement. This is reported as Patter-
son v. Newspaper & Mail Deliverers’ Union, 384 F. Supp. 585
(S.D.N.Y. 1974) affd. 514 F.2nd 767 (2d Cir. 1975). In review-
ing the settlement, the Court of Appeals stated:

Although the Union represents all delivery workers, member-
ship is limited to Regular Situation holders and Group 1
members. Historically the Union has excluded minorities and
has limited its membership to the first born son of a member.
Aside from the chilling effect which restriction of union
membership to whites might by itself have upon minority per-
sons seeking delivery work, there is evidence that minorities
were also discouraged from gaining entrance to Group 3 lists,
even though Group 3 shapers are not members of the union…

While the current group Structure, which was adopted in
1953, appears on its face to open Union membership to any-
one in the labor force, union membership, because of lax ad-
ministration of the contract provisions, has largely remained
attainable only by the family and friends of a union member.
Due to the artificial inflation of the Group 1 lists, no person
has in practice made the theoretically possible jump from
Group 3 to Regular Situation since 1963. The evidence sug-
gests that this expansion of the Group 1 lists has been accom-
plished primarily by use of voluntary transfers of Group 1 or
Regular Situation holders from the lists of smaller distributors
to the Group 1 lists of more desirable, larger employers and
ultimately to Regular Situations there. Other devices include
fictitious lay-offs, enabling the Union member to transfer to
Group 1 of a different employer and outright false assertions
of Group 1 status by persons who have obtain union member-
ship cards, the validity of which have not been challenged by
employers.

Among other things, the settlement required that the Group 1
definition and the Group 1 promotion procedure be revised so
that a regular an orderly number of Group 3 people would be
promoted to Group 1 status. It also provided that an outside
administrator would be appointed to monitor the process and
resolve disputes.
The Union contends that the Board should defer to the
EEOC settlement which allowed the Union and the signatory
employers to retain, with slight modification, the Group Extra
system that was contained in its contracts with employers,
many of whom were then in multiemployer associations that no
longer exist. The General Counsel contends and I agree that
the Title VII settlement, while interesting because of the
Court’s description of the Union’s history and industry hiring
practices, cannot be binding on the NLRB which was not a
party to that action. Moreover, the issues in that case involved
claims of racial and ethnic discrimination and those are a com-
pletely different from the issues that are presently before the
Board. That the Union and signatory employers may have
resolved claims of racial or ethnic discrimination is admirable;
but that resolution has nothing to do with the claims herein that
the Union has discriminated in favor of union members and
against individuals on the basis of their lack of union member-
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ship.
(b) The New York Post Cases (Exclusive of the Beck issue)
The New York Post is a newspaper published by NYP Hold-
ings Inc. which is a division of the News Corporation. Its print-
ing facility is located in the Bronx where it also prints the Wall
Street Journal, Barron’s, and a bunch of smaller community
newspapers. The delivery of publications produced at the
Bronx facility is done by people directly employed by The Post
and they are represented by the Union. As described above, the
delivery department employees are either regular situation
holders, having permanent positions, or extra workers divided
into Groups 1, 3, and 4. All extra employees (apart from Group
2 people who are employed at other companies and who may
occasionally shape at the Post), are people who seek work as-
signments at the Post. In the case of Group 1 and 3 extras,
these individuals are most accurately described as regular part-
time employees of the Post. (Group 4 shapers have a more
tenuous relationship to the employer). I note that because of a
steady diminishment of the newspaper industry, the Post by
2011, no longer had or utilized a Group 3 or 4 list.
At one time the Post had been a member of the Publisher’s
Association and had maintained its collective-bargaining rela-
tionship with the Union through that multiemployer associa-
tion. It was during that time that the hiring provisions of the
contract were established. It could be said that these contractu-
al provisions were at one time, applicable to employees in a
multiemployer bargaining unit consisting of various publishers
such as the Post and the New York Times.
The 1973–1975 collective-bargaining agreement between the
Union and the Publishers Association was the last contract to
which the Post was a party. In 1975, the Post bargained sepa-
rately with the Union and subsequently reached a separate col-
lective-bargaining agreement covering its own employees.
In 1984, the Publishers Association ceased to function as the
bargaining agent for its employer members and thereafter, all
surviving publishers negotiated separate collective-bargaining
agreements with the Union.
The current contract between the New York Post and the
NMDU is based on a 2003–2010 agreement as modified by
subsequent memoranda of understandings in 2006 and 2008.
The 2008 memorandum of understanding extended the expira-
tion date of the contract to December 15, 2015.
During the 2003 negotiations, the Post and the Union agreed
to create a new Group 1 and Group 3 list.7 The Union, though
its Business agent initially, Thomas LoDico, sent the Post a
proposition that 18 people be included on a Group 1 list, 12 of
whom would be based on their length of service in the industry
as determined by their union card numbers. He also proposed
that 6 persons be chosen for the Group 1 list based on their
seniority as casual employees and who had worked 50 or more
shifts at the Post in 2003. This union proposal was accepted by
the Post and an entity called the Adjustment Board (jointly
staffed by employer and union representatives), approved the
7 For reasons not in the record, it seems that for a period before
2003, the Post did not have a Group 1 or Group 3 list.
placing of these 18 individuals on the Post’s Group 1 list.8
As of 2003, the Post employed about 184 regular situation
holders and the contract allowed that number to be reduced by
attrition to 170. In 2006 and 2008, the parties agreed to in-
crease the number of regular situations holders respectively to
193 and 204. In the event that regular situation holders retired
or died, their spots would be taken by promoting individuals, in
order of seniority from the Post’s Group 1 list. And this is what
happened over time; with regular situation holders retiring,
Group 1 persons were being promoted to those jobs and new
people were being placed on the Post’s Group 1 list.
It should be noted that as vacancies on the Post’s Group 1
list became open, they sometimes were filled by people on the
Post’s Group 3 list and sometimes by people who were em-
ployed at other employers who already were NMUD members
and who apparently wanted to switch their employment to the
Post. For example, General Counsel Exhibit 12 is an Adjust-
ment Board order dated August 2004 that shows that when six
individuals as on the Post’s Group 1 list were elevated to be-
come regular situation holders, another group of six people
were elevated to the Post’s Group 1 list. Four of those people
already were members of the NMDU and the other two were
Group 3 employees who had worked 180 shifts or more during
2003-2004 at the Post. This means that four people who were
not extra employees at the Post but who were employed at other
companies and were union members, were given preference
over the employees on the Post’s Group 3 list who were not
union members.
Similarly, General Counsel Exhibit 13, dated April 13, 2005,
shows that when one person on the Post’s Group 1 list was
elevated to being a regular situation holder, George Holtzer was
placed at the bottom of the Post’s Group 1 list based on the fact
that he was the recipient of a “Father/Son card” and as such
was a member of the NMDU in good standing with “no shop.”
The exhibit therefore shows that Holtzer, simply by virtue of
his union membership bumped everyone on the Post’s Group 3
list.9
The current contract between the New York Post and the Un-
ion contains a union-security clause that requires Post employ-
ees who are employed as regular situation holders or as Group
1 employees to become or remain members of the Union no
later than 30 days after they attain such status. The provision
provides that retention of membership is a condition of em-
8 While it is clear that 6 of the individuals chosen for the new
Group 1 list were people who had worked on a regular basis for the
Post in 2003, it is not clear to me where the other 12 people came
from. I am not sure if they were extra workers who also worked on a
regular basis at the Post or if they were people who normally worked
at other union-signatory employers and who wished to work at the
Post as Group 1 regular part-time employees. In any event the evi-
dence establishes, primae facie, that in 2003, at least 12 people were
chosen by the Union and the Post to be placed on the Post’s newly
established Group 1 list based on their union membership seniority.
This, however, was outside the statute of limitations period set forth
in Sec. 10(b) of the Act.
9 Other exhibits indicate that after 2005, additions to the Post’s
Group 1 list came from employees who were on the Post’s Group 3
list.

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 267
ployment.
As noted above, individuals who are in Group 3 or Group 4
status are not permitted by the Union to obtain membership
status even if, as in the case of Group 3 extras, they work on a
regular basis. They are however, covered by the terms of the
contract and are required to pay an agency fee as a condition of
working for the employer.
The 2003 contract also contained a side letter dated October
29, 2003, which is also a provision that is contained in other
contracts that Union has with other employers. This letter
states:

If the Daily News, Newark Star Ledger, Hudson News Com-
pany, El Diario, Wall Street Journal, Jersey Journal, the New
York Times, City and Suburban Inc., or Oggi cease operation,
the New York Post shall add to its Group 1 list RSHs and bo-
na fide Group 1 Extras who, through no fault of their own,
lose their employment as a result of the cessation of operation
and who meet the New York Post’s reasonable qualifications
in a number equal to the new York Post’s pro rata share of the
total number of RSHs employed pursuant to NMDU con-
tracts. After such placement on the Group 1 list, the Group 1
list may once more atrit to 10% of the RSH list.

By early 2008, it was becoming apparent to everyone that the
side agreement described above might be put to use as there
was a distinct possibility that a company called City and Sub-
urban (C&S), that was owned by the New York Times was
likely to go out of business in the near future.
At a later point I will describe in more detail the history of
C&S. But for now, it is sufficient to say that C&S, as of 2008,
was a wholly owned subsidiary of the New York Times and
was engaged in the wholesale delivery of newspapers and mag-
azines throughout the New York Metropolitan area. It was, at
this time, the result of a conglomeration of smaller companies
that had been purchased by the Times and it employed over 350
delivery department employees as regular situation holders or
Group 1 extras. These employees were all represented by the
NMDU under a separate collective-bargaining agreement and
therefore constituted not only a separate bargaining unit from
any other employer but also a separate bargaining unit from the
group of delivery employees that were directly employed by the
Times.
Also in 2008, the Post began to feel a need to add additional
people to its Group 1 list. Therefore, on July 9, 2008, the Post
wrote to the Union and stated:

We have a substantial number of openings on the One List.
The contract provides that the One List will be maintained at
ten percent for the RSH List. I would request a meeting of the
Adjustment Board to elevate employees from the Three List
to fill the vacancies and bring the Company into compliance
with the contract. If the Union continues to refuse to meet to
elevate employees because of a citywide freeze on issuing
new Union cards, please confirm that fact.

The Union’s response dated July 10, 2008 was as follows:
In reply to your July 9th, 2008 letter concerning both of our
compliance with the New York Post’s One List being main-
tained at 10%, please be advised that there is an industrywide
“Freeze” on all One Lists, not just the New York Post.

In no small part based on the New York Post removing its
product from City and Suburban’s Lake Success facility, as
well as the Hauppauge facility, as well as economic uncertain-
ty through our industry, we, the Union, see no need to fill the-
se vacancies on the One Lists throughout the industry at this
time.

It is obvious to me that in responding to the Post’s request,
the Union wanted to keep the Post’s Group 1 list (and the
Group 1 lists at other union-signatory companies), unfilled
because it and everyone else was aware that City and Suburban
was going out of business and therefore, the Union was going
to make an effort to have the C&S employees placed elsewhere.
One of the effects of the Union’s freeze on adding to the
Post’s Group 1 list was that employees on Post’s Group 3 list
were denied an opportunity to be promoted to the Post’s Group
1 list. This meant that individuals on the Post’s Group 3 list
were subject to losing potential job assignments to people who
were on the Union’s Group 2 list, which as noted above, is a
separate list generated by the Union and consists of all delivery
employees working for all union-signatory employers within
the Union’s geographic jurisdiction. As noted above, seniority
standing on the Group 2 list is based on the date that an indi-
vidual becomes eligible for union membership because he or
she was promoted to a signatory employer’s Group 1 list. The
person with the lowest number on the Group 2 list has the most
seniority on that list.
C&S closed its doors in the first few days of January 2009.
And pursuant to the side letter described above, the Post agreed
to employ a number of people who had lost their jobs at C&S.
There were discussions between the Post and the Union regard-
ing how this would be accomplished and who would be hired.
In February 2009, an agreement was reached and memorialized
in an “order” of the Post/NMDU Adjustment Board dated Feb-
ruary 18, 2009. This stated in pertinent part:

NOW THEREFORE, the Adjustment Board, having met for
the purpose of placing displaced City and Suburban Inc.
RSHs who lost employment as result of the Employer’s ces-
sation of employment on the Post’s One List and to formalize
its WSJ 10 One List does determine as follows:

1. The Post’s One List will be expanded to include those
named on Exhibit A in the order shown in compliance with
the contractual side letter. It is further understood that the
foregoing individuals on Exhibit A have been elevated one at
a time in the priority listed on the Exhibit.

2. Each of those individuals listed on Exhibit A will be
warned that they must shape 6 shifts per week or work 5 shifts
per week in order to retain such listing.

3. Any individual who does not shape 6 shifts per week or
work 5 shifts per week will on a 4 week basis be warned on
his failure to comply with the contract. A second occurrence
with a 12 month period will result in immediate removal from
the One list.
10 WSJ refers to the Wall Street Journal

268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Exhibit A contains 75 names and is described as the Post’s
Group 1 list. In this regard, the evidence was that 75 former
employees from C&S applied and were accepted by the Post
but that there were 25 individuals who failed to show up.
Therefore, what seems to have occurred is that 50 individuals
who had previously been employed by C&S, all or almost all of
whom were union members were placed on a new Post Group 1
list.11 For purposes of this case, the salient fact is that the set of
C&S employees who were hired by the Post and placed on the
newly expanded Group 1 list bumped all of the people who had
been employees on the Post’s Group 3 list, many of whom
remained on that list. Moreover, even as to those individuals
who were promoted from the Post’s Group 3 list to the newly
established Group 1 list, they were placed in lower seniority
status than the displaced individuals who were hired from C&S.
The criteria used to establish seniority within the new Post
Group 1 list was the union’s industrywide number, which as
noted above, is a number that one gets from the Union when an
individual becomes eligible for union membership. And be-
cause most or all of the people who came from C&S had been
employed for many more years in union-signatory shops, they
were given greater seniority standing than the employees who
were on the Post’s Group 3 list and who either remained on the
Group 3 list or were promoted in February 2009 to the new
Post Group 1 list. As pointed out by the General Counsel, the
relative seniority position of people on the Post’s Group 1 list
not only affects the order in which people are assigned to daily
jobs,12 but it also affects other aspects of their work, such as
vacation preferences.13
The evidence also shows that in 2010 and 2011, the Post
promoted a number of employees from its Group 1 list to regu-
lar situation holders. All of these individuals were former C&S
11 In accordance with the Decision in Beck, the Union issued a no-
tice to its members through its publication that the union-security
clauses in various contracts did not actually require union member-
ship. This was published on one occasion in 2003 and was not repub-
lished thereafter. It therefore is possible that the small number of in-
dividuals who have worked in Union shops have either not become
members or given up their membership after receiving this notice.
There is evidence that as of January 2008, there were about 2700
people employed at employers having NMDU contracts and that at
least 95 percent of them were union members. The evidence also
shows that as of August 2011 there were over 1000 employees work-
ing in NMDU contract shops, of which fewer than ten were not union
members. See Respondent Exhibit 25. Moreover, of the people who
have worked in NMDU signatory shops, there is a small category of
people who although not members, have been denied membership
because they admitted that worked at one time at a company having
an active dispute with the Union.
12 Work is assigned on a daily basis first to the regular situation
holders and then to Group 1 people in their order of seniority on that
list. As noted above, if a Post Group 3 person had not been promoted
to the Group 1 list in February 2009, he or she would be subject to
being bumped for a job assignment by any person who showed up
and was on the Union’s Group 2 list.
13 After February 18, 2009, the Post Group 1 list was slightly mod-
ified and additional people were added to the Post Group 1 list on
August 5 and 7, 2009 and on January 10, 2010. See GC Exhs. 23, 24,
and 25.
employees, who as noted above, were afforded greater seniority
than existing Post employees despite the fact that the Post em-
ployees had worked longer at the Post than the newly hired
C&S employees. This obviously adversely affected the em-
ployees of the Post who did not come from C&S. 14
Another example of where Post Group 3 employees were
adversely affected was in an Adjustment Board “order” dated
August 17, 2010, where the Post’s Group 1 list was augmented
by a number of people and where former C&S employees (hav-
ing more union seniority) were placed ahead of three Group 3
employees who were promoted, but to the bottom of the Post’s
Group 1 list.15
(c) The C&S/New York Times Cases
The New York Times originally created City and Suburban
by purchasing, over time, four wholesale distributors. In 1992 it
purchased Metropolitan News Company and the Newark
Newsdealer Supply Company. In 1996 it purchased Imperial
Delivery Service and another company called Raritan Periodi-
cal Sales Company. All of these companies employed delivery
employees who were represented by the NMDU. And when
these employees were incorporated into C&S, the collective-
bargaining agreement between the NMDU and C&S contained
the same provisions. These contracts also contained the same
union-security provisions in relation to regular situation holders
and Group 1 extras and the same agency fee provisions relating
to all other extras.
At one time, some of the acquired wholesalers were mem-
bers of the Suburban Wholesalers’ Association an organization
that represented its employer/members in bargaining with the
NMDU. Nevertheless, by the time C&S was created, this As-
sociation had ceased to exist and C&S negotiated separately
with the Union. In fact, before 1999, C&S negotiated two sep-
arate if similar collective-bargaining agreements with the Un-
ion; one covering the employees of Newark Newsdealer and
Metropolitan News and the other for the former employees of
Raritan. As to Imperial, C&S assumed the existing contract
between that company and the Union. It was not until 1999
that a single overall contract was made between C&S and the
Union and this agreement was in effect until March 30, 2008.
It thereafter was extended by the parties until March 30, 2020.
Unlike the publishers, C&S’s contact provided for two cate-
gories of delivery department employees; regular situation
holders who were guaranteed five shifts per week and extras.
Seniority for regular situation holders was determined by what
is called a “make steady date.” This is the date that an employ-
ee became a regular situation holder with C&S or with one of
the predecessor companies that C&S acquired. This is not the
same seniority date that is used when individuals become union
members and acquire a union “industrywide priority numbers.”
At C&S, there were separate seniority lists. One was for the
New Rochelle and Moonachie facility (Westchester); a second
was for the Edison and Wall facilities (New Jersey); and the
third was for the Lake Success and Hauppauge facilities (Long
Island).
14 This is reflected in GC Exh. 29.
15 This is reflected in GC Exh. 26.

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 269
The situation was somewhat complicated for employees who
had previously worked for Rockland County News employees
because many were transferred from their facility to the New
Rochelle facility. Although the Union and C&S agreed to
merge the seniority of the two groups of employees, there was a
dispute as to how to accomplish that result. Accordingly, the
issue was placed before an arbitrator who, pursuant to an award
issued on January 1, 2002, decided that the employees who
were on the Rockland County seniority list should be dove-
tailed with the employees who were on the New Rochelle sen-
iority list.16 In accordance with the award, an individual’s sen-
iority status at the consolidated facility was then determined by
the date that the driver became a regular situation holder at the
facility that he had worked at before the two facilities were
merged. In reading the award, the principle dispute was wheth-
er the seniority lists should be dovetailed or end tailed. Alt-
hough there was a contention that an individual’s industrywide
priority number (i.e. his total length of employment with union-
signatory employers), should be the basis for determining sen-
iority, this contention, at least as it appears from the arbitrator’s
decision, does not seem to have been seriously argued and was
rejected.
As in the case of other NMDU signatory employers, when
C&S needed to utilize employees after exhausting its regular
situation holder list, it referred employees to job assignments
by the aforementioned Group 1 and 2 complements, plus an-
other more amorphous group of casuals. As noted above,
Group 2 extras are people who have industrywide priority
numbers issued by the Union on the basis of when they attained
RHS or Group 1 status at any signatory employer and therefore
became eligible for union membership. Also as noted above, it
is a rare exception when anyone chose not to become a union
member. There was, however, a small group of individuals
who would otherwise have become eligible for union member-
ship but who were refused membership. Insofar as C&S is
concerned, individuals who, from time to time, sought and
obtained employment based on their Group 2 seniority status
were placed ahead of any individuals who sought employment
on a more casual basis.
In 1992, Imperial, a predecessor to C&S was engaged in a
labor dispute with NMDU and during a work stoppage, it hired
a group of employees as replacements. These included Enrique
Grados, Richard Atkins, Djevalin Gojani, Willie Miles, Jimmy
Clark, and Eduardo Valentin. When C&S purchased this com-
pany it hired the predecessor’s employees including these peo-
16 In 1997 or 1998, C&S closed the Rockland facility acquired
through the purchase of Rockland News and transferred those drivers
to other facilities, a majority of which were transferred to New Ro-
chelle. Following the transfer to New Rochelle, the company operated
with two seniority lists, one for the former New Rochelle employees
and the other for the former Rockland News employees. In 1999,
C&S and the NMDU agreed to merge the two seniority lists for the
employees working out of New Rochelle facility and merge the lists
for the employees who were working at two facilities in New Jersey.
In merging the New Rochelle lists there was a dispute as to whether
the Rockland employees should be dove tailed or end tailed for sen-
iority purposes. When no agreement was reached the matter was arbi-
trated.
ple.
In NMDU (City & Suburban Delivery System), 332 NLRB
870 (2000), a case involving charges filed by Miles Clark and
Valentin, the Board issued a decision which concluded that the
Union violated Section 8(b)(1)(A) and (2) by vetoing, in May
1998, the promotion of these specific individuals to regular
situation holder positions at C&S because they had crossed a
picket line in 1992. Complying with the Board’s Order, Miles,
Clark, and Valentin were reassigned new made steady dates to
May 4, 1998. Therefore their seniority status on the C&S regu-
lar situation holder was made retroactive to May 4, 1998, in-
stead of May 21, 2000, when the employer actually promoted
them to the regular situation holder list. The Board’s Order did
not deal with any other employees who crossed the picket line
and the Order did not require the Union to modify the seniority
dates of any persons other than the three charging parties in that
case.
In May 2000, C&S notified the Union that it was elevating
all of the above named individuals to regular situation status
effective on May 21, 2000. The company added them to the
New Rochelle seniority list with a “steady date” of May 21,
2000. When they, along with other employee also promoted to
regular situation status, were invited to the Union hall they
were asked if they crossed a picket line and they admitted that
they had. As a consequence, the Union while accepting the
other employees into membership told these “strike breakers”
that they would not be admitted to union membership. There-
fore, as a result of the May 2000 promotions and the Board’s
Decision and Order in 332 NLRB 870, Miles, Clark, and Val-
entin were ultimately promoted to regular situation holders at
C&S with seniority dates of May 4, 1998, instead of May 21,
2000. But Enrique Grados, Richard Atkins, and Djevalin
Gojani who were not parties to the Board case, which did not
require relief for any persons other than the charging parties,
and who were also promoted by the Company to regular situa-
tion status in May 2000 were given C&S seniority as of May
21, 2000. At a much later date when their seniority status be-
came important, the Union refused requests to alter their senior-
ity dates.
On September 8, 2008, C&S held meetings with it drivers to
announce that the company was going out of business. As
noted above, this possibility was well known in the industry
and the Union in anticipation of the closing was making efforts
to keep open regular situation holder and Group 1 jobs at other
employers to which the C&S employees might be hired.
On November 20, 2008, the NMDU and the New York
Times entered into a closure agreement to deal with the situa-
tion once C&S terminated operations as of January 4, 2009. By
the terms of this agreement, the Times consented to hire 65
C&S regular situation holders and place them at the bottom of
the Times regular situation holder seniority list. The Times
also agreed to pay a buyout worth $100,000 to regular situation
holders of C&S who opted to not transfer to the Times and to
leave the industry. The agreement provided that these choices
applied only to regular situation holders employed by C&S and
that they would make their selection in order of seniority. The
agreement also provided that any remaining C&S regular situa-
tion holders (and C&S Group 1 employees), who neither got

270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the buyout nor the transfers would receive 8 weeks of sever-
ance pay.17 In a letter attached to the closure agreement from
Terry Hayes to Douglas Panattier Jr. it states:

This confirms our understanding that the term “seniority,”
when used in this Closing Agreement, refers to industry-wide
priority. This definition of “seniority” is intended to apply on-
ly to the Closing Agreement and is not to have any preceden-
tial effect for either party in the future.

As described in this letter, this means that seniority for the
purpose of selecting the buyouts and/or the transfers would not
be based on a regular situation holder’s seniority date with
C&S but rather would be based on how long that individual had
worked for companies having contracts with the union. Thus,
under this system of determining seniority, a person with the
lowest priority number would be the individual who became a
regular situation holder or Group 1 employee with any union-
signatory employer in the past. Moreover, as that would make
the individual eligible for union membership, the industrywide
priority number would essentially be equivalent to when that
individual joined the Union pursuant to a union-security clause.
In some cases, an individual’s C&S seniority date and his prior-
ity date would be the same if the individual first started to work
in the industry at C&S and stayed with C&S throughout his
employment history. However, in other cases, the industrywide
priority date would be lower than the C&S seniority date if an
individual became a steady employee at another union-
signatory employer prior to his employment at C&S. (Or a
predecessor company taken over by C&S).18 In that case, the
individual would have obtained a priority number and most
likely a union membership number, at a date earlier than the
date that he obtained his C&S seniority.
In a form letter dated December 10, 2008, the Times notified
the C&S regular situation holders and Group 1 employees of
their options. It indicated that C&S would close effective on
January 4, 2009 and it gives these employees until January 26,
2009, to make a selection. (The letter provided a form for elec-
tion). The employees were notified that if someone chose a
buyout and got it, he would not be eligible to be hired by the
New York Times and vice versa. Also, if an employee accept-
ed the buyout, he would lose all of his industrywide seniority
which meant that he no longer could seek jobs at other union-
signatory employers as a Group 2 extra. (This means that he
effectively would be retired from the industry).
During the period from November 2008 through January
2009, the Union prepared and transmitted to the Times several
seniority lists for the C&S employees. The first listed the C&S
17 Exhs. A and B to the closing agreement shows that as December
31, 2008, C&S employed 362 regular situation holders plus 64 Group
1 extras. The record does not show how many other casual employees
may have been employed by C&S during 2008, but that seems to be
irrelevant to the issues in this case.
18 GC Exh. 46 is a list of regular situation holders and Group 1
employees who were employed by C&S as of September 2008. The
list has 426 names. In addition, the exhibit shows the locations where
the employee worked; their hire date with C&S; their seniority dates
with C&S; and the hire date at any predecessor employer which had
been purchased by C&S.
employees by their union card numbers. This, however, was
superseded by a second list dated November 19, 2008, that
ranked the C&S employees by their industrywide seniority
numbers. The lowest being the person with the most seniority.
Another revised list was sent on November 18 and this was
again revised by the Union on January 8, 2009. A final revi-
sion was made on January 29, 2009, after the Times pressed the
Union to make certain that it had an accurate list.
On December 29, 2008, a meeting was held where the eligi-
ble C&S employees gathered to make their choices. (Employ-
ees could also mail in their choices if they chose not to attend
this meeting).
Ultimately, the C&S employees made their elections and
these were presented to the New York Times. In February
2009, the Times began to distribute $100,000 checks to certain
former C&S employees. Also, the Times hired a group of for-
mer C&S employees.
There is no question but that the use of industrywide priority
numbers to select the buyouts or the transfers gave some C&S
employees with less C&S seniority some degree of preference
in terms of having their choices selected. In the case of the
buyouts, the Times has set aside $600,000 representing pay-
ments to six individuals because there is a question as to which
six individuals should have had their buyout elections accepted.
Although the General Counsel has not identified any specific
individuals, other than Grados, Atkins, and Gojani who should
have had their buy out elections accepted, it seems reasonable
to assume that there were at least a total of six who were ad-
versely affected by using industrywide priority numbers instead
of using C&S seniority as the basis for the selection process.
Further, even as to those people who elected to transfer to
being regular situation holders at the Times, the use of indus-
trywide priority number seniority as opposed to C&S seniority
meant that when these 65 people were placed on the Times
seniority list, their places on that seniority list were affected
either favorably or adversely. And because seniority status
among regular situation holders can make a difference in vari-
ous terms and conditions of employment, the use of seniority
based on time worked for all signatory employers gives a dis-
tinct advantage versus those whose seniority is measured only
by their employment with C&S.
In the cases involving Grados, Atkins, and Gojani, it is pos-
sible that if the seniority basis for the selection of the buyouts
was changed from being based on seniority with union-
signatory companies to seniority solely within C&S as of the
time that they were promoted to regular situation holders (May
2000), that they would have had sufficient seniority to have had
their picks for the $100,000 buyouts accepted.
The General Counsel also posits an alternative theory on be-
half of these three employees. As I understand the argument,
the General Counsel assert that the Union should have altered
their industrywide priority dates and that it breached its duty of
fair representation in refusing to do so.
In May 2000, Grados, Atkins, and Gojani were elevated to
regular situation holder status at C&S’s New Rochelle facility
along with other employees. When they were invited to the
union hall, they were asked if they had ever crossed a union
picket line and when they answered affirmatively, they were

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 271
told that they could not become union members. As I under-
stand the situation, both their seniority date as a regular situa-
tion holder with C&S and their union industrywide priority
numbers would be based on this date as this is the date that they
were promoted to being regular situation holders.
It is true that there have been instances where employees at
C&S have had their seniority dates with C&S corrected and
there was an instance in 2001 when, pursuant to a settlement of
a grievance, a group of nine drivers had their dates changed
from June 2, 1998, to May 4, 1998. This included three drivers
Dunn, Naclerio, and Antonaccio. But if their C&S seniority
dates were changed from June 1998 to May 1998, they still
would be ahead of Grados, Atkins, and Gojani, whose seniority
dates at C&S were in May 2000.
After their picks for the buyouts were rejected, Grados and
Gojani complained to the Union and asserted that there were
some (unnamed) drivers with less C&S seniority who had low-
er industry priority numbers and therefore trumped them when
they made their buyout bids. At one point Gojani complained
that the Union had changed the priority number of Miles and
the Union’s representative replied that Miles was a charging
party in the previous Board case whose priority number had
been changed as a result of that decision. Gojani was told that
he was not a party to that case and that the Union was therefore
not obligated to change his number. And this is, in my opinion,
a correct interpretation of the Union’s obligation pursuant to the
previous Board decision as it had not been alleged in that case
that Gojani, Atkins, or Grados had been discriminatorily denied
promotions to regular situation holder status at C&S in 1998.
In my opinion, the General Counsel has not shown sufficient
evidence that Grados, Atkins, or Gojani should have had their
priority numbers changed to a number consistent with a date
earlier than the date that they actually were promoted to regular
situation holder status at C&S.19 Nor am I satisfied that there
has been a dispositive showing in this current proceeding that
any C&S drivers, promoted to regular situation holder status
after Grados, Atkins, or Gojani at C&S, received lower (and
therefore better), union industry priority numbers. At this stage
of the proceeding, I cannot say that these three individuals
would have been in a position to beat out any of the other C&S
regular situation holders in vying for the buyouts. However, in
the event that it is determined that the Union violated the Act
by using industrywide priority numbers, instead of C&S senior-
ity as the basis for making the buyout selections, then the Gen-
eral Counsel could show at the compliance stage of the pro-
ceeding that Grados, Atkins, and/or Gojani had better seniority
status than other C&S employees who bid for and were selected
to receive the buyouts.20
19 Maybe I am missing something, but I really don’t understand the
General Counsel’s argument that the seniority status for these three
individuals as regular situation holders at C&S should be changed to
a date earlier than when they were actually promoted.
20 This could be demonstrated simply by seeing if any C&S drivers
who had their buyout bids accepted, were made regular situation
holders after the dates that Grados, Atkins, and Gojani were promoted
to be regular situation holders. If that were the case, then the three
alleged discriminates would each be entitled to the $500,000 buyouts.
(d) Agency Fee and Beck Issues
The General Counsel contends that the NMDU violated the
Act by requiring certain employees to pay agency fees while
denying them union membership and work opportunities. I
don’t agree.
The collective-bargaining agreements between the Union,
the Post, C&S and most or all other signatory employees, re-
quire employees in Group 3 or Group 4 status to pay agency
fees to the Union as a condition of continued employment.
General Counsel Exhibit 71 is an agency fee form that states
that the fee amount per shift may not exceed 5 percent of the
dues payable monthly by union members. That is, a person who
works as a Group 3 or Group 4 extra, is required (after 30 days
of employment), to only pay an amount for each shift that he
actually works.
The agency fee form further states:

I further understand that this fee is for services provided and
creates absolutely no rights or privileges of membership in the
NMDU, nor any preference for or expectancy of membership.

I note that apart from some trivial expenses used to reim-
burse union officials who go to members’ funerals, there is no
evidence that the Union uses union dues or agency fees for any
purpose other than collective bargaining or contract administra-
tion.
In support of this contention, the General Counsel cites
Bricklayers Local 1 (Denton’s Tuckpointing), 308 NLRB 350,
352–353 (1992). That case involved a situation where the Un-
ion charged a work permit fee to nonmembers while at the
same time refusing to refer them from its hiring hall. Not sur-
prisingly, the Board concluded that a union which charges
nonmember a fee for referrals but refuses to carry out its im-
plied promise to refer them to jobs from its hiring hall, has
violated the Act. As the Judge noted;

The fee is not a service or referral fee since nonmembers are
not referred. The fee, on this record, serves no purpose except
to enrich the Union, to restrain nonmembers and to keep track
of employers employing nonmembers. Indeed, the require-
ment of nonmembers obtaining union clearance, in the form
of a work permit, as a condition of gaining or retaining em-
ployment, is merely part of closed-shop mechanics and vio-
lated Section 8(b)(1)(A) and (2) of the Act.”

The cited case is not really pertinent to the case at hand. The
NMDU charges an agency fee which is based only on the days
that an individual actually works. This is not a case where a fee
is charged for an illusory promise of work. On the contrary, the
fee is only charged when an individual nonmember actually
works and gets paid. And in the case of the Post at least, the
evidence was that individuals on the Group 3 list tended to
work 5 days a week on a regular basis. Further, while not being
allowed to become members, it cannot be said that people who
obtain employment by virtue of their Group 3 or Group 4 status
are not beneficiaries of the Union’s role in collective bargain-
ing. Notwithstanding their nonmembership, these nonembers
Complications could however, arise if only one or two other C&S
drivers with less C&S seniority had their buyout bids accepted.

272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
receive the same wage rates and the same contractual benefits
as any other driver in the bargaining unit. 21
The General Counsel also alleges that the Union violated the
Act by failing to provide Beck notices to the employees of the
New York Post.
Under Communication Workers of America v. Beck, 487
U.S. 735 (1988), the Supreme Court held that employees who
choose to be nonmembers can only be required to pay an agen-
cy fee in circumstances where a collective-bargaining agree-
ment requires the payment of union dues. Moreover, the Court
held that the amount required can only be equal to that portion
of normal union dues that are used for collective-bargaining
activities.
Thereafter, in California Saw & Knife Works, 320 NLRB
224 (1995), the Board concluded that a union must notify all
unit employees of their right to refrain from union membership
before requiring nonmember employees to pay agency fees
under a union-security contract. The Board required, inter alia,
that unit employees be given sufficient information to enable an
employee to decide whether to object to becoming a union
member and to be apprised of any internal procedures for filing
an objection.
In Paperworkers Local 1033 (Weyerhaeuser Paper), 320
NLRB 349 (1995), the Board required that all employees
(members and nonmembers alike), covered by union-security
clauses must be given affirmative notice of their rights to object
to union membership and their right to pay an agency fee. In
this regard the Board stated:

This notice requirement is satisfied by giving the unit em-
ployee notice once and is not a continuing requirement. Thus,
newly hired nonmembers must be given Beck and General
Motors notice once—at the time the union first seeks to obli-
gate them to pay dues. The same notice to members is like-
wise required to be given once, if they have not previously re-
ceived it. The form of such notice is not prescribed by the
Board, moreover, and ‘‘the union meets [its] obligation as
long as it has taken reasonable steps’’ to notify employees of
their Beck rights before they become subject to obligations
under the union-security clause. California Saw & Knife, su-
pra, slip op. at 10. The same holds true of their General Mo-
tors rights.

In the present case, the only evidence that the Union gave
any notice to any members or unit employees was a one time
notice in the Union’s in house bulletin that was published in
2003. Notwithstanding a subpoena issued by the General
Counsel, the Union did not produce, other than the 2003 bulle-
tin any documents that would show that any other notices were
ever issued to employees covered by the union-security clause.
Nor was there any testimonial evidence to show that as a mat-
ter of course or standard operating procedure, employees at the
Post were told of their Beck/General Motors rights before they
become subject to the obligations of the contractual union-
security provisions.
21 There is no contention by the General Counsel that the agency
fees are excessive or greater on a prorated basis than union member-
ship dues.
Having established that the only notice given to employees
was the one issued in a union publication in 2003, it is my opin-
ion that this simply is not enough. Therefore I shall conclude
that in this respect the Union violated Section 8(b)(1)(A) of the
Act.
(e) Daniel Altieri
The record shows that Daniel Altieri, in January 20009, quit
his job at C&S to went to work at El Diario. As of July 2010,
he was $1445 in arrears on his union dues. In a letter dated
August 10, 2010, the Union wrote to him as follows:

In accordance with Article XIV, Section 5, you are expelled
from the [NMDU] because you are 6 months or more in ar-
rears in union dues. As a result of being an expelled member,
you can lose all claims to employment at your employer or at
any employer that is governed by a collective bargaining
agreement between the NMDU and those employers.

Clearly the Union could expel Altieri for his failure to pay
union dues. That, however, is not the issue here.
While at C&S, Altieri chose to be a member of the Union
and pursuant to the contract’s union-security clause, he was
required to pay the periodic dues that are ordinarily required of
membership. And if he remained employed at C&S or its suc-
cessor, the New York Times, he could have been terminated
from employment if he continued to not pay union dues after
being properly notified of that obligation.
But Altieri at the time he received this notice, was not an
employee of C&S/New York Times and was employed at El
Diaro. Therefore, the fact that he was in arrears at his former
employer cannot, under Board law, be used to preclude his
employment at another employer covered by a contract in a
separate bargaining unit. Iron Workers Local 118 (Pittsburg
Des Moines Steel Co.), 257 NLRB 564, 566 (1981), enfd. 720
F.2d 1031(9th Cir. 1983). In that case the Board stated:

Thus, it is well settled that a union lawfully may seek the dis-
charge of an employee whose dues are in arrears if it has a
valid union-security clause in its collective-bargaining agree-
ment with the employer. The Radio Officers’ Union of the
Commercial Telegraphers Union, AFL. (Bull Steamship Co.)
v. N.L.R.B., 347 U.S. 17, 40-41 (1954). Furthermore, a valid
union-security clause can be enforced at the hiring hall level
by a refusal to refer an employee whose dues are in arrears, so
long as the employee has already worked for the statutory
grace period in the bargaining unit to which the collective-
bargaining agreement containing the union-security clause
applies. Mayfair Coat & Suit Co., 140 NLRB 1333 (1963).
However, the Board has held that a member who has become
delinquent in dues under a contract covering one bargaining
unit cannot be denied employment under a contract covering a
separate bargaining unit without affording him the statutory
grace period in which to become current in his or her dues.

Therefore, it is my opinion that the August 2010 notice is-
sued to Altieri was too broad and exceeded (probably inadvert-
ently), what was permitted under the statute. I therefore shall
conclude that in this respect, the Union violated Section
8(b)(1)(A) of the Act.

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 273
(f) Analysis
I can recall a time in the 1950s when my father brought
home three newspapers every day; the New York Post, the
World Telegram, and Sun, and the Herald Tribune. Of these,
only the Post continues to exist and its existence, for a time,
hung by a thread. I will take notice that the newspaper industry
in New York has been in a continual decline with fewer and
fewer papers being published and delivered. This trend, no
doubt has been accelerated with the advent of the Internet.
All of the significant allegations in these cases arise from the
fact that in late 2009, a big employer of NMDU represented
drivers was about to go out of business and the Union found
itself in the unfortunate position of trying to either (a) obtain
substantial severance packages for at least some of these em-
ployees or (b) jobs elsewhere for those individuals who wanted
to continue being employed. This was, no doubt, a difficult
circumstance for the employees, the employers and the Union.
And in my opinion, the Union was trying to do its best in a bad
situation to mitigate the damage that C&S’s closing would
cause to a great many employees.
The question here is not whether the Union acted with good
or malicious intent; but rather in dealing with this difficult cir-
cumstance, whether it acted and made agreements with the
respective employers within the limits allowed by the National
Labor Relations Act.
In setting up a preference system to deal with the C&S clos-
ing, the Union decided to use seniority as the basis upon which
employees would be able to make choices. The Union con-
tends that the seniority system it chose to utilize was not in any
way based on union membership, but rather based on the
amount of time that an employee spent working in the industry.
This would be represented, according to the Union, by an in-
dustrywide priority number where the lower the number, the
better one’s seniority preference. The problem is that the defi-
nition that the Union has used is one based on when an individ-
ual started working as a regular situation holder or Group 1
extra at any employer, within the New York Metropolitan area,
having a contractual agreement with the NMDU. That is, the
seniority system that the Union chose and that was acceded to
by the Post and the Times, was one based on the amount of
time that an employee worked for union-signatory shops and
not one that measured seniority by the amount of time that the
employee worked with either C&S or the New York Post.
Moreover, while the Post at one time may have been a mem-
ber of the Publisher’s Association and the companies acquired
by C&S may have been members of the Suburban Wholesaler’s
Association, there never was any multiemployer bargaining
unit that covered all NMDU represented drivers throughout the
greater New York metropolitan area. And at the time that the
most recent collective-bargaining agreements were made and
when the seniority preferences were implemented in 2009 and
2010, neither C&S, the New York Times, nor the Post were
part of any multiemployer bargaining unit.
Section 8(b)(1)(A) and 8(b)(2) states:

It shall be an unfair labor practice for a labor organization or
its agents--
(1) to restrain or coerce (A) employees in the exercise of
the rights guaranteed in section 7, Provided; That this para-
graph shall not impair the right of a labor organization to pre-
scribe its own rules with respect to the acquisition or reten-
tion of membership therein; or (B) an employer in the selec-
tion of his representatives for the purposes of collective bar-
gaining or the adjustment of grievances;
(2) to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection [8 (a) (3)] or to
discriminate against an employee with respect to whom
membership in such organization has been denied or termi-
nated on some ground other than his failure to tender the peri-
odic dues and the initiation fees uniformly required as a con-
dition of acquiring or retaining membership.

Section 7 of the Act gives employees the rights to join, assist
or support labor organizations or to engage in concerted activity
for their mutual aid or protection. This provision also gives
employees the right to refrain from such activities or from be-
ing union members.
Section 8(a)(3) makes it unlawful for an employer, except to
the extent that there exists a lawful union-security clause re-
quiring membership after 30 days of employment, to discrimi-
nate, in regard to hire or tenure of employment or any term or
condition of employment in order to encourage or discourage
membership in any labor organization.22
Thus, although loyalty is a trait much admired, this is
trumped where the provisions of the National Labor Relations
Act, impose constraints against favoring union members over
nonmembers.
Whiting Milk Corp., 145 NLRB 1035 (1964), represents an
early Board case involving a situation somewhat analogous to
the present cases. And the basic rule of law as espoused by the
Board’s in these types of cases has continued to the present,
even though the Board’s decision was not enforced by the First
Circuit Court of Appeals. NLRB v. Whiting Milk Corp., 342
F.2d 8 (1st Cir. 1965).
In Whiting, an employer and a union had a collective-
bargaining agreement through a multiemployer bargaining
association that contained a clause that provided that if any
employer acquired or merged with “another Union Company,”
the preexisting seniority of the employees of the acquired com-
pany shall be preserved and integrated with the seniority of the
employees of the acquiring company. In that case, Whiting
acquired another company called White Milk Company that
had five facilities. At four, the employees had been represented
by the Union and at the fifth, the employees were unrepresent-
ed. In conformity with the contractual provision, the former
22 In NLRB v. General Motors Corp., 373 U.S. 734 (1963), the Su-
preme Court held that notwithstanding the existence of a valid union-
security clause, an employee could not be required to become an ac-
tual member of a labor organization, albeit he or she could be re-
quired to pay reasonable fees. The Court held that it was sufficient
for employees to become “financial core” members without requiring
them to become actual union members. In so holding, the Court did
not require contracts containing union -security clauses written in ac-
cordance with the statutory language of 8(a)(3) to be rewritten. It was
only later that the Board required unions to notify employees of their
right to refrain from becoming union members. California Saw &
Knife Works supra.

274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees at the four represented plants were accorded pre-
ferred seniority status over those at the unrepresented plant.
The employees in the first group were treated as carrying their
seniority over to Whiting. The other employees were treated
for seniority purposes as if they were newly hired employees.
For some time after the merger, the seniority situation did not
affect the charging parties who had been employed at the un-
represented facility and who had been placed at the bottom of
the seniority list. Nevertheless when a layoff came about, the
charging parties were laid off and their selection for layoff was
governed by the contractual provision that had been previously
been implement and that had caused them to be at bottom end
of seniority. In finding a violation, the Board stated:

But for clause 81, which requiring Whiting to place their
names at the bottom of the companywide seniority list and
thereafter to maintain their inferior status on that list, they
would not have been laid off at all. That their selection for
layoff was substantially related to their earlier lack of mem-
bership in the Union was reaffirmed by Whiting at the time of
such action. As found by the Trial Examiner, the Hyannis
plant manager, when laying off Walsh and O’Neil made
statements to the effect that their replacements had been in the
Union longer than they had and that if Walsh and O’Neil had
joined the union while working for White, they could not
have been selected for layoff.

Also relevant to the present case, I note that the Board in
Whiting rejected a claim that the statute of limitations in Sec-
tion 10(b) of the Act should run from the date that the seniority
status was first established (pursuant to clause 81) and not from
the date that the two employees were laid off. In this regard,
the Board stated:

Respondents contend that Section 10(b) operates as a bar to
any violation finding as to these layoffs because Walsh and
O’Neil were first subjected to the terms of the discriminatory
seniority provision though not to the actual operation thereof
which effectively disrupted their employment tenure--when
they were first placed on this discriminatory seniority roster
more than 6 months prior to the filing of charges giving rise to
this proceeding. We reject that contention. The seniority roster
on which Walsh and O’Neil were placed prior to the 10 (b)
period was dependent upon, and had no durability or binding
force of its own apart from the contractual provision which
required it . The Charging Parties’ continued discriminatory
retention on the seniority roster, which otherwise might have
been corrected, was compelled by the uninterrupted mainte-
nance of the illegal contract term within the 10(b) period. The
selection for layoff of Walsh and O’Neil also within the 10(b)
period thus resulted from the enforcement of the unlawfully
maintained seniority provision.

Our finding of a violation need not, and does not, depend on
a subsidiary finding that Respondents engaged in a time-barred
unfair labor practice. Wholly apart from any such earlier unfair
labor practice, it is sufficient to spell out a violation here that
the layoffs of Walsh and O’Neil were directly attributable to
the application within the 10(b) period of an unlawfully main-
tained discriminatory contract provision. Here, as in the closely
parallel Potlatch Forest case, which was cited with apparent
approval by the Supreme Court in the Bryan Manufacturing
case and which we regard as square authority for the holding
we make, Respondents’ conduct during the barred period has
been considered merely for the purpose of bringing into clearer
focus the current conduct which, even without reliance on any
earlier unfair labor practice, supports a finding of statutory
violation in the layoffs. (citations omitted).23
Not only is preference based on union membership vs. non-
membership unlawful, but preferences granted on the basis of
any membership considerations would violate the Act. For
example, in Reading Anthracite Co. (United Mineworkers of
America, Local 807), 326 NLRB 1370 (1998), a Local 7226
was merged into a Local 807 for a single unit and the surviving
union (Local 807), caused the employer to assign all the former
Local 7226 members seniority dates that reflected the day they
joined Local 807 and not the dates that they began work at the
mine. The Board stated:

Local 807 and District 2 violated the Ac . . . . It is unlawful to
use “membership” considerations, e.g., date of local member-
ship, to determine conditions of employment. Such conduct
violates Section 8(b)(2) by discriminatorily encouraging
membership in that local.

In IATSE, Local 659, 197 NLRB 1187 (1972), the Board
dealt with a contractual hiring system whereby certain employ-
ees who were placed on a roster received hiring preference by
virtue of the amount of time that they had worked at union-
signatory employers. In determining whether an employee was
eligible to be placed on the roster, his work experience with
employers other than those who signed one of the aforemen-
tioned collective-bargaining agreements was not considered.
Therefore, under this arrangement, qualifying experience was
generally limited to experience with employers having a collec-
tive-bargaining agreement with the Respondent and/or IATSE.
The Board stated:

There can be no doubt that the actions of Respondent in ap-
plying the roster restrained and coerced employees in the ex-
ercise of rights guaranteed in Section 7 of the Act. In part,
Section 7 gives employees the right to bargain collectively
through representatives of their own choosing, or to refrain
therefrom, subject of course to majority rule. Respondent’s
actions penalize employees for having exercised their statuto-
ry right to refrain from bargaining collectively through Re-
spondent in the past, while rewarding those employees who
have chosen to work in units represented by Respondent.

Respondent contends that the roster provisions, as interpreted
and applied, are lawful because the employers, both the Inde-
pendents and members of the Association, in effect, formed a
multiemployer bargaining unit for seniority purposes.

Respondent further contends, however, that even if a mul-
tiemployer bargaining unit does not exist, there is still no vio-
23 In Teamsters Local Union 896 (Anheuser-Busch), 296 NLRB
1025 (1989), the Board rejected a similar argument based on Sec.
10(b). See also District 17, United Mine Workers of America, 315
NLRB 1052 (1994).

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 275
lation of the Act since the seniority provisions are unrelated to
union considerations and merely protect the so-called “integri-
ty of the bargaining unit.” We find this contention to be with-
out merit.

It is well settled that a bargaining representative for the em-
ployees of a particular unit has the right to make seniority de-
pend on the date of hire in the unit and thus to give an inferior
seniority ranking to employees transferred from another unit.
General Drivers and Helpers Local Union 229, Teamsters
(Associated, Transport, Inc.), 185 NLRB No. 84. We have
heretofore concluded that each Independent employer com-
prised a separate bargaining unit. We are not faced here with a
situation where new employees are being placed at the bottom
of a unit seniority list. On the contrary, this case presents a
situation wherein Respondent prevents an applicant from ob-
taining initial employment unless he has had prior employ-
ment at which he was represented by the Union. The question
here is not what seniority rights an employee acquires after
working in a unit represented by Respondent, but what rights
the applicant has to start with when he seeks employment
with an employer who is party to a collective-bargaining
agreement with Respondent and/or IATSE. Respondent ad-
mits that if an employee had acquired seniority rights under a
collective-bargaining contract to which Respondent and/or
IATSE is a party, those rights will be honored where the em-
ployee seeks employment in an entirely separate unit which is
also represented by Respondent. On the other hand, an em-
ployee cannot commence work in a unit represented by Re-
spondent unless he has previously worked in a unit covered
by a collective-bargaining contract to which Respondent
and/or IATSE is a party. Since the existence of a collective-
bargaining contract connotes representation by a labor organi-
zation, the deprivation of employment with employers who
are parties to collective-bargaining contracts with Respondent
and/or IATSE flows from the failure of an employee to have
been previously represented by Respondent.

The above illustrates that initial employment in a unit repre-
sented by Respondent is based strictly on union considera-
tions. No matter what qualifications an employee brings with
him, if he has not in the past been represented by Respondent,
he cannot gain employment with any employer who is party
to a collective-bargaining agreement with Respondent and/or
IATSE. Accordingly, we conclude that Respondent, by apply-
ing the seniority provisions against any Association or Inde-
pendent employer as if all such employers comprise a single
bargaining unit, and in particular by the manner in which Re-
spondent has applied the roster provisions with respect to
Colman and Lapenieks, has unlawfully restrained and coerced
employees in the exercise of their statutory rights and thereby
violated Section 8(b)(1)(A) of the Act.24
24 See also Directors Guild of America Inc., 198 NLRB 707
(1972), and Painters Union, Local 77 (Colorite Inc.), 222 NLRB 607
(1976). The latter case deals with the unlawful granting of prefer-
ences in hiring hall referrals to employees who have worked for un-
ion-signatory employers as opposed to employees who did not. The
Board stated: ‘Thus it is clear that the preference in employment is

In Seafarers International Union, 244 NLRB 641, the Union
operated a hiring hall pursuant to a contract with various signa-
tory employers pursuant to which job applicants were sorted
into groups A, B, and C and where priority was based on work
experience for signatory employers for a minimum of 90 days
for 2 consecutive years. In finding a violation, the Board stated:

Contrary to the Administrative Law Judge, we find that the
General Counsel has established a prima facie case that Re-
spondent’s implementation of its hiring hall referral system, in
strict adherence to the seniority preferences and in tandem
with the union security requirements upon signatory employ-
ers, unlawfully favors jobseekers who are union members
over nonmembers and also requires signatory employers to
discriminate with respect to hiring. The General Counsel’s
case is strongly supported by the testimony of Worley, Re-
spondent’s own witness with respect to the referral practices
of the parties which shows that membership is not only en-
couraged but actively suggested, if not required, in the form of
the request of individuals seeking to upgrade seniority ratings
to make application for membership at that time.
We do not agree with the Administrative Law Judge that spe-
cific examples of discrimination are required for the finding
of a violation herein. Nor do we fault the General Counsel for
failing to foreclose the theoretical possibility that nonmem-
bers could obtain sufficient work experience with signatory
employers to qualify, for example, for B seniority ratings
without having to join the Union under the applicable union-
security provisions. For the burden of negating the General
Counsel’s prima facie case of discrimination in hiring refer-
rals falls on Respondent as the sole custodian of the hiring hall
records. Its failure to do so creates an adverse inference that
such evidence in its possession is not favorable to Respond-
ent’s case.

Finally, we disagree with the Administrative Law Judge’s
blanket acceptance of Respondent’s business justification de-
fense and his conclusion that such valid business criteria ren-
der the referral procedures lawful. Assuming, arguendo, that
the evidence proves a genuine necessity for requiring experi-
enced workers relating to reasons of safety, Respondent has
failed to adduce any evidence to distinguish between the work
experience acquired with signatory employers in contrast to
other employers, or to show how experience with the former
meets the legitimate requirements while the latter does not, or
even whether the factor of work experience has any valid
bearing upon referral seniority.

There are exceptions of course. If a Respondent can show
that the contractually based seniority system is ambiguous and
therefore not facially invalid and/or if there are legitimate rea-
sons for establishing a preference based at least in part, on em-
ployment with other union-signatory employers, then the Board
not based on length of service with a particular employer or within a
multiemployer bargaining unit, but rather on considerations of prior
union representation. Such a preference is violative of Section
8(b)(1)(A) and (2) of the Act.”

276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
may conclude that there is no violation. For example in Team-
sters Local Union 896 (Anheuser-Busch), 296 NLRB 1025
(1989), the issue was whether the Teamsters violated Section
8(b)(1)(A) and (2) by invoking a provision of its contract with
Anheuser-Busch giving permanent employees laid off by other
employers who have contracts with the Respondent, a preferen-
tial seniority right to work for Anheuser-Busch instead of tem-
porary employees whose job seniority with that Employer
would otherwise have entitled them to work. The Board stated:

For the reasons set forth below, we find that the stipulated
record does not establish that the contractual seniority bump-
ing preference, on its face or as applied, violates Section
8(b)(1)(A) and (2) of the Act. First, there is no evidence that
the continuation of the preference in the more than 15 years
since Anheuser-Busch withdrew from the multiemployer bar-
gaining unit has actually resulted in any discrimination against
any employee or hiring hall applicant on the basis of nonun-
ion or non-unit status. In the absence of such evidence, it can-
not be presumed from the contractual language itself, which is
amenable to a lawful interpretation that the Respondent would
act unlawfully by refusing to dispatch as a permanent em-
ployee “bumping” an individual claiming credit for employ-
ment with a California brewer, such as Anchor Steam, whose
employees are not represented by the Union. Second, the cir-
cumstances and the background of this case present an unusu-
al justification for the bumping practice in that the preference
is but one of three seniority-based contractual vestiges of the
multiemployer relationship voluntarily continued by An-
heuser-Busch and other surviving employer-members after
their withdrawal from the formal multiemployer unit. The
contractual bumping preference clearly does not discriminate
on the basis of union membership. It does entail a credit for
work experience with employers having a contract with the
Respondent, but the preference challenged here differs signif-
icantly to signatory employment found unlawful by the Board
in cases cited by the General Counsel and the Charging Party.
These critical differences relate specifically to the statutory is-
sues of whether there is discrimination in the preference that
expressly relates to union considerations and if so whether
and to what extent it is discrimination that encourages union
representation.

Here, in contrast to the cited cases, the permanent employee
bumping right does not prevent a job applicant “from obtain-
ing initial employment unless he has had prior employment at
which he was represented by the Union,” does not create a
general referral class preference based exclusively on work
experience under union-signatory and union security condi-
tions, does not preclude anyone from achieving permanent
employee status, and does not permit one permanent employ-
ee to bump another permanent employee on the basis of prior
non-unit experience. Thus, the contract provision at issue is
arguably skill based. Furthermore, the bumping right cannot
be secured or avoided merely by joining the Union or by
working for employers who have contracts with the Union.
Rather, individuals claiming the right must also have worked
a specific length of time to attain permanent employee status
and thereafter have been laid off by a signatory employer. Fi-
nally, the language of section 4(a)(1) of the contract ambigu-
ously defines a permanent employee as one who has worked
45 weeks “under this Agreement in one classification in one
calendar year as an employee of the brewing industry in this
State.” The italicized phrase is capable of an interpretation, in
the absence of actual practice to the contrary and in light of
the nondiscrimination clause in the contract that the parties
may give credit towards permanent employee status to work
performed for non-signatory California brewers.”

Admittedly, the provision’s limiting of the bumping right to
permanent employees who have been laid off by signatory
employers appears to discriminate on its face against brewery
workers whose last employer did not have a contract with the
Union, but it also discriminates against permanent employees
who left their prior employment with a signatory employer for
reasons other than layoff. To the extent that the union-
signatory layoff requirement discriminates on the basis of un-
ion considerations, it is highly speculative to suggest that such
discrimination would encourage brewery workers to restrict
their work experience to union signatories. In any event, as
further discussed below, multiemployer considerations carry-
ing over from the defunct multiemployer unit fully justify this
incidental, potentially discriminatory feature. Thus, the chal-
lenged seniority preference is capable of an interpretation that
it is a lawful seniority-based contractual right. (Footnotes
omitted).

In my opinion the facts in the Anheuser-Busch case and the
Board’s rationale is distinguishable from the present cases.
First, there is no ambiguity that the seniority system utilized in
the various circumstances herein was based on an individual’s
length of employment for another employer having a collective
bargaining agreement with the NMDU. There is no ambiguity
here. The intent clearly was not to give seniority credit to em-
ployees who were employed as drivers for companies that were
not signatories to a contract with the NMDU; either inside or
outside of the newspaper industry. Second, there is no evi-
dence to suggest that the preferences granted in the present case
were in any way skill based or required by virtue of safety rea-
sons. Thirdly, as neither C&S, the New York Times, nor the
New York Post were every members of any overall single mul-
tiemployer bargaining unit (and have not been part of any
multibargaining units for many years), there is, in my opinion,
no basis for any claim that a seniority system based on em-
ployment at other NMDU signatory employers was a justifiable
“vestige” from a previous multiemployer contract. And finally,
there is no doubt (as there was in Anheuser Busch), that a num-
ber of employees in the present cases suffered actual as op-
posed to theoretical discrimination. In the present cases, the
use of seniority based on employment at other employers hav-
ing NMDU contracts has tangibly and adversely affected iden-
tifiable groups of employees at the New York Post and em-
ployees at C&S/New York Times.
The Respondent places a good deal of emphasis on a case
involving the New York Typographical Union, a case where
the Board found that the Union violated the Act, but the Second
Circuit Court of Appeals did not.
In New York Typographical Union No. 6, 242 NLRB 378
NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 277
(1979), the Union had collective-bargaining agreement with a
large number of companies, many of which were through a
contract with a multiemployer association. It also had contracts
with other shops which, although not members of the associa-
tion, had agreed to bound to the terms of the association-wide
contract. The charging parties were job applicants to a compa-
ny that was not a member of the association and they contended
that the hiring hall provisions of the collective-bargaining
agreement gave priority in hiring to any employees who were
either employed by or laid off by union-signatory employers.
The Board concluded that the independent employers were not
part of a multiemployer bargaining agreement and that the con-
tractual provisions as applied to independent employers violat-
ed Section 8(b)(1)(A) & (2). The Board stated:

Inasmuch as League members and Independent employers are
not part of a single multiemployer unit, the preference in
question is not based upon the seniority or work experience
acquired by an employee in a single bargaining unit. Rather,
it is based upon an employee’s employment in a shop under
contract with the Union. Therefore, it directly related to
membership in the Union. Such a provision discriminates in
favor of union members over nonmembers and, consequently,
restrains and coerces employees in the exercise of their Sec-
tion 7 rights.

In NLRB v. New York Typographical Union No. 6, 632 F.2d
171 (2d Cir. 1980), the court started out by disagreeing with the
Board’s finding that the employers involved were not part of a
single multiemployer bargaining unit. Nevertheless, the court
stated that its reason for reversing the Board was not limited to
that finding. Notwithstanding the ALJ’s conclusion that the
contract provision establishing a Class A group that favored
only union members over nonmembers, the court noted that at
least one person (out of 3700), in the “favored” category was
not a union member and that the criteria for placement in this
category allowed at least some nonunion employees to be treat-
ed equally with employees in union shops. Since the persons in
the favored category were almost all union members and were
given preference over job applicants who were not members, I
must say that I am somewhat confused by the court’s analysis.
I do note, however, that the court may have concluded that
irrespective of the contract’s granting of preference to employ-
ees who worked in union-signatory shops, there nevertheless,
were other legitimate and compelling reasons to allow this type
of discrimination. The court noted that the Union had been
confronted with problems resulting from mechanization in the
printing industry and the decrease in the number of skilled jobs.
The court noting the history of the industry and the declining
role of skilled typographical work stated:

The principal thrust of the agreement was to open the doors of
book and job shops to automation through use of “any and all
computers,” to provide for the training of employees in the
skills needed to operate such equipment, and to require the
payment of guaranteed income to certain unemployed or un-
deremployed employees from a fund established by the em-
ployers. In light of the income guarantees, exclusive hiring
hall procedures were instituted and supervised by the fund’s
trustees to give highest priority in job referrals to employees
who were eligible for guaranteed income payments.

Thus, as a preference may be permissible because of safety
or skill considerations, the court in the cited case seems to have
been reasonably concerned with the continuing financial viabil-
ity of the fund established to ease the path for employees to exit
the industry because of the automation that was making many
of their jobs obsolete.
I also note that because the NLRB is required to interpret a
federal law consistently throughout the United States in the
geographic areas covered by all the circuit courts, I am bound
by the decisions of the Board and not by a single reviewing
court of appeals.
The Respondent also cites Interstate Bakeries Corp., 357
NLRB 15 (2011). In that case, the Union represented sales
representatives in two separate units having separate contracts.
In 2005, the Employer decided to consolidate the routes and an
agreement was made with the Union to have the units merged.
They also agreed that the employees who worked at Dolly
Madison (where the charging party was employed) would be
dovetailed according to unit seniority with the employees work-
ing at Wonder Bread. When it was discovered that the Charg-
ing Party had never been in either unit, the company and the
Union agreed that he should be included in the merged unit and
although he had the most company seniority, he was placed at
the bottom of the newly created seniority list covering employ-
ees in the merged unit. Thereafter, he was told that when a
route was going to be eliminated, the company and union were
going to use “union seniority” to bump him out of his own
route. Ultimately this caused the charging party to lose his
position at the plant where he worked and required him to
commute to another plant 70 miles away. Disagreeing with the
ALJ’s decision to dismiss the complaint, the Board concluded
that “in the context of a unit merger, a union and an employer
are not lawfully permitted to discriminate against all or, as in
this case, some of the merged employees on the basis of their
previously unrepresented status.” The Board, reiterating much
of what has already been described as the law, stated:

The Board has drawn a clear distinction between discrimina-
tion based on unit seniority and that based on union seniority.
A union and an employer do not discriminate in a manner
prohibited by the Act by contracting to vest certain employ-
ment rights based on seniority in a represented unit. Nor do
the parties to a collective bargaining agreement engage in un-
lawful discrimination by placing a single employee or a group
of employees hired or merged into the unit at the end of the
seniority list on the grounds that they lacked seniority in the
unit. “It is settled,” the Board has held, “that a bargaining rep-
resentative for the employees of a particular unit has the right
to give an inferior seniority ranking to employees transferred
from another unit.” General Drivers and Helpers Local 229
(Associated Transport, Inc.), 185 NLRB 631, 631 (1970). In
short, “a union may lawfully insist on the endtailing of new
bargaining unit employees’ seniority when it is based on unit
rather than union considerations.” Riser Foods, supra, 309
NLRB at 636.

What is unlawful under the Act is for such parties to place
employees at the end of the seniority list because they were
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unrepresented by a particular union or any union in their prior
employment. That is the form of discrimination which was at
issue in Whiting Milk. In that case, the contract provided for
the dovetailing of seniority in the event of merger with “an-
other Union Company.” Id., 145 NLRB at 1036. The Board
found that “[t]he term ‘Union Company’ is construed by the
parties as meaning an employer whose employees have been
represented by the Respondent Union.” Id. Thus, the Board
found that the selection of employees for layoff based on end-
tailed seniority “was substantially related to their earlier lack
of membership in the Union.” Id. at 1037. The same is true in
other cases in which the Board found endtailing unlawful. See
Woodlawn Farm Dairy Co., 162 NLRB 48, 50 (1966) (“This
sentence [of the contract], on its face, affords preferential
treatment to employees of new branches or plants who are
Local 869 members and discriminates against those who are
not.”); Teamsters Local 435 (Super Valu, Inc.), 317 NLRB
617, 617 fn. 3 (1995) (“the unions advocated granting less
seniority to one of the employee groups on the impermissible
basis that the employees in that group had not been represent-
ed by a union as long as the employees in the other group.”);
Teamsters Local 480 (Hilton D. Wall), 167 NLRB 920, 920
fn. 1 (1967) (agreement provided that Wall would be placed
on the bottom of the seniority list “because employees of
Cookeville Motor Lines had not been represented by a labor
organization”).

Frankly, I do not see how the Board’s decision in Interstate
Bakery affords much comfort to the Respondent’s position in
the present case. If anything it seems to affirm the legal propo-
sitions of the General Counsel.
It is my conclusion that the agreements made between the
NMDU, the Post, C&S, and the New York Times, to the extent
that they have been implemented (and continue to be imple-
mented), within the 10(b) statute of limitations period, have
afforded preferences to individuals based on union seniority
instead of unit seniority and have caused actual discrimination
against employees at these employers who, although covered
by the collective-bargaining agreements, were not permitted to
become members of the NMDU.
CONCLUSIONS OF LAW
1. The collective-bargaining units involving employees rep-
resented by the NMDU at the New York Post, City and Subur-
ban, and the New York Times have at all times material herein
been separate collective-bargaining units.
2. In my opinion, the hiring provisions of the collective-
bargaining agreement between the NMDU and the New York
Post, which gives a preference to Group 2 people is illegal as it
confers a preference based on an individual’s length of em-
ployment with companies having agreements with the Union
other than the Post. As the Post is not and has not been for
many years, a member of any multiemployer bargaining unit,
the Group 2 preference, is based on union and not unit seniori-
ty. Accordingly, it discriminates against employees who are
not members of the NMDU and is therefore violative of Section
8(b)(1)(A) and (2) of the Act.
3. On July 9, 2008, the New York Post wrote to the Union
and requested that the Post’s Group 1 list be opened up so that
vacancies could be filled. On July 10, 2008, the Union refused
to open up the Post’s Group 1 list thereby denying promotions
to some of the New York Post’s Group 3 nonunion employees.
In my opinion, the Union’s reason for refusing to open the
Group 1 list was to require the Post, pursuant to its contract
with the Post, to give preference in hiring and seniority when
hired, to employees from the soon to be closed C&S, almost all
of whom were union members. In this regard, I conclude that
the Union thereby violated Section 8(b)(1)(A) & (2) by causing
the Post to refuse to promote certain of its own employees be-
cause of their nonmembership in the Union.
4. In January 2009, the New York Post and the Union
agreed that the Post would employ about 50 employees who
were being laid off as a result of the closing of C&S, an em-
ployer having a contract with the NMDU. That agreement and
its implementation provided that the Post would hire these for-
mer C&S employees and place them on the Post’s Group 1
seniority list with their position on the list based on the length
of their employment at union-signatory employers other than
the New York Post. As a result, these individuals were, by
agreement between the Post and the NMDU, granted greater
seniority at the Post than other employees of the Post who had
more unit seniority at the Post. This agreement therefore dis-
criminated in favor of individuals who were, in almost all cas-
es, union members and discriminated against employees of the
Post who were on the Post’s Group 3 list and who were not
members of the NMDU. I therefore conclude that in this re-
spect, the Union violated Section 8(b)(1)(A) & (2) of the Act.
5. The NMDU and the New York Times entered into an
agreement whereby (a) the Times agreed to make payments of
$100,000 to 140 employees of C&S who agreed to retire from
the industry and (b) the Times agreed to hire 65 C&S employ-
ees and place them on its own payroll. (As noted above, the
New York Post agreed to hire about 50 C&S employees and I
believe that other union-signatory companies also chipped in).
In devising a procedure whereby the C&S employees could
make a choice as to whether to take the buyout or take a new
job, the NMDU utilized a system of seniority that was based on
the total length of time that a C&S employee worked for union-
signatory companies instead of how long they had worked at
C&S or a company that had been directly acquired by C&S.
This system was acceded to by the New York Times and the
result was that employees of C&S who had more seniority
based on their length of employment at union-signatory em-
ployers other than C&S, obtained a preference in the bidding
process over employees who had greater seniority at C&S. As
C&S, itself, has never been part of any multiemployer bargain-
ing group, the seniority system chosen by the NMDU for the
bidding was not based on unit seniority but rather based on
seniority with union-signatory companies outside of the C&S
bargaining unit. As a result, the evidence shows that at least 6
individuals who were employed by C&S may have had their
buyout bids denied despite having greater unit seniority than
other C&S employees whose buyout bids were accepted. The
individuals that were discriminated against may have included
Grados, Atkins, and Gojani. However, this is not certain at this
stage of the proceeding and only a revision of the bid seniority
list based solely on C&S seniority will reveal the names of
NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 279
these people whose bids for buyouts were rejected but should
have been selected for the buyouts but for the improper use of
union-signatory seniority rather than C&S seniority. This can
be determined, if necessary in any compliance proceeding. In
any event, I conclude that in this respect, the Union violated
Section 8(b)(1)(A) and (2) of the Act.
6. The evidence shows that pursuant to agreement between
the New York Times and the NMDU, the Times agreed to hire
a group of former C&S employees, whose bids for job transfers
were accepted in accordance with the foregoing bid process.
These employees were endtailed at the Times and given sen-
iority status as of their date of hire by the Times. However,
within the group of new hires, seniority between them was
made on the basis of the amount of time they worked in NMDU
signatory shops and not on the basis of their C&S seniority. In
my opinion, this arrangement and its implementation is a viola-
tion of Section 8(b)(1)(A) and (2) of the Act.
7. The General Counsel contends that the Union violated the
Act by requiring employees to pay an agency fee while at the
same time denying them union membership and work opportu-
nities. As previously described, it is my conclusion that this
allegation is without merit and should be dismissed.
8. The evidence establishes that the only notice that the Un-
ion ever gave to employees of the New York Post of their rights
to refrain from becoming union members (despite the existence
of a union-security provision, requiring membership), was con-
tained in a union bulletin in 2003. As I have concluded that
this did not meet the notice requirements set forth in Paper-
workers Local 1033 (Weyerhaeuser Paper), 320 NLRB 349
(1995), I find that that in this respect, the Union has violated
Section 8(b)(1)(A) of the Act.
9. In my opinion, the Union by its August 10, 2010 letter to
Daniel Altieri was violative of Section 8(b)(1)(A). This is be-
cause the threat to bar him from employment at employers
other than his last employer where he was in dues arrears went
beyond what was permissible under the Act.
10. The unfair labor practices found to have been committed
in these cases affect commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
I note here that these cases deal with the enforcement of
agreements made between the Union and employers who are
not parties to these cases. Therefore, any remedy has to take
into account the fact that no order can be issued against the
employers.
It is recommended that the Respondent be ordered to cease
and desist from giving effect to or enforcing any collective-
bargaining agreements or any other agreements that it has or
had with City and Suburban, the New York Post, or the New
York Times which in any way gives preferences to one group
of employees over another group of employees based either on
their length of time as union members or on the amount of time
that they have been employed by companies having contracts
with the NMDU other than the companies by whom they are
employed. Among other things, this means that the Union
should be ordered to refrain from enforcing or implementing
the Group 2 preference in its collective-bargaining agreement
with the New York Post.25
It is recommended that with respect to the New York Post’s
regular situation holder and Group 1 lists, that the Union re-
quest from the employer that the Adjustment Board approve a
revision of those lists so that former employees of City and
Suburban who were hired by the Post be given seniority stand-
ing only from the time that they began their employment at the
Post and further revise the lists so that other New York Post
employees who have worked longer at the Post be given higher
seniority status either as regular situation holders or as Group 1
extras.
To the extent that any New York Post employees have suf-
fered any loss of earnings because of the fact that they were
disadvantaged by a granting of greater seniority status to former
C&S employees, make them whole, with interest, for any loss
of earnings or benefits.
It is recommended that when any employees at the New
York Post or the New York Times becomes eligible for union
membership by virtue of being placed on a Group 1 list or be-
coming a regular situation holder, that the employee be noti-
fied, in writing, that he or she is entitled to refrain from becom-
ing a union member.
With respect to the $100,000 buyouts, it is recommended
that the Union revise the list drawn up pursuant to which em-
ployees of City and Suburban made their bids so that it is or-
dered by the length of time that employees have worked for
City and Suburban or an immediate predecessor and not by the
length of time that employees have worked for other companies
having collective-bargaining agreements with the NMDU.26 In
the event that the revised list shows that employees who bid for
the buyouts had their bids rejected because of their placement
on the old list, but whose bids should have been accepted based
on a revised list, the Union should request the New York to pay
these employees the $100,000. If the request is not accepted by
the New York Times, then the Union should make whole, with
interest, any employee whose buyout bid should have been
accepted based on unit seniority with City and Suburban.
With respect to those former C&S employees who were
hired by the New York Times it is recommended that the Union
request that the Times revise their seniority so that within this
group of employees, their relative seniority vis-a-vis each other
reflects their unit seniority when they were employed by City
25 The charges do not allege that the current contract between the
Union and the New Times is illegal insofar as the Group 2 preference
is concerned and I shall therefore not recommend that the Board nul-
lify that clause. However, since the same clause exists in the New
York Times collective-bargaining agreement, it would be advisable, if
this opinion is sustained, for that employer and the Union to voluntar-
ily modify its contract in this regard.
26 Any revision of this list should be reviewed and approved by the
General Counsel and any documents and/or records necessary to de-
termine the proper placement of City and Suburban employees on this
list should be provided to the extent not already in the possession of
the General Counsel.

280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Suburban and not by their union seniority or by the amount
of time they worked for other NMDU signatory employers.
With respect to Mr. Altieri, it is recommended that the Union
notify him in writing that it will not seek to prevent him from
being employed by any employers because of his failure to pay
dues while he was employed at City and Suburban. Of course,
if he is or becomes employed by an employer having a collec-
tive-bargaining agreement that contains a valid union-security
clause, he may be required to pay the period dues that are nor-
mally required of members if he chooses to join, or the periodic
agency fees that are required of members as a condition of em-
ployment.
Where a make-whole remedy is appropriate, backpay shall
be computed in accordance with F. W. Woolworth Co., 90
NLRB (1950), with interest at the rate prescribed in New Hori-
zons for the Retarded, 283 NLRB 1187 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.27
ORDER
The Respondent, the Newspaper and Mail Deliverers’ Union
of New York and Vicinity, Long Island, New York, its officers,
agents, successor, and assigns, shall
1. Cease and Desist from
(a) Giving effect to or enforcing any collective-bargaining
agreements or any other agreements that it has or had with City
and Suburban, the New York Post, or the New York Times
which in any way gives preferences to one group of employees
over another group of employees based either on their length of
time as union members or on the amount of time that they have
been employed by companies having contracts with the NMDU
other than the companies by whom they are employed.
(b) Causing or attempting to cause the New York Post to
prevent the promotion of individuals from Group 3 to Group 1
status in order to give preference to other individuals based on
their length of time as union members or based on their time
employed by NMDU signatory companies other than the New
York Post.
(c) Failing to give employees proper and timely notice that
they are entitled to refrain from becoming union members.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the rights guaranteed to them by
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) No longer enforce or implement any contract or agree-
ment with the New York Post that in any way gives preferences
to one group of employees over another group of employees
based either on their length of time as union members or on the
amount of time that they have been employed by companies
27 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.

having contracts with the NMDU other than the New York
Post.
(b) Request the New York Post that a revision of seniority
be made for those employees who were hired from City and
Suburban so that this set of employees be given seniority stand-
ing only from the date of their employment at the Post and
further revise any seniority lists so that other New York Post
employees who have worked longer at the Post be given greater
seniority status either as regular situation holders or as Group 1
extras.
(c) Make whole with interest, any employees of the Post
who have suffered by reason of the discrimination against them
in the manner set forth in the remedy section of this Decision
(d) Notify, in writing, all bargaining unit members of the
New York Post or the New York Times of their right to refrain
from becoming members in the Union.
(e) Revise the list used to allow former employees of City
and Suburban to make a bid for either a buyout or employment
at the New York Times. This revision will order “seniority” by
the length of time that these employees have worked for City
and Suburban or its immediate predecessors and will not be
based on the length of time that the former City and Suburban
employees have been either union members or on the length of
time that these employees have worked for other NMDU signa-
tory employers. In the event that one or more employees who
bid for the buyouts should have had their bids accepted under
such revised list, the Union should request the New York Times
to pay each of them $100,000. In the event that this request is
unsuccessful, then the Union will make these employees whole
with interest.
(f) Request the New York Times to revise the seniority status
of those employees it hired who had previously been employed
by City Suburban to reflect their relative seniority vis-a-vis
each other, based solely on their unit seniority with City and
Suburban.
(g) Notify Daniel Altieri that the Union will not cause or at-
tempt to cause any employer to refuse to give him employment
because of his failure to pay union dues when he was employed
at City and Suburban.
(h) Post at its office copies of the attached notice marked
“Appendix B.” Copies of the notice, on forms provided by the
Regional Director for Region 2 after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees and/or members are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its members by
such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(i) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 281
required revisions to the various seniority lists involved in these
cases and to determine, if necessary, the amount of any back-
pay due under the terms of this Order.
(j) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

Appendix A
Corrections to the record

Page Line(s) Transcript reads Should read

101 2 accurate representation inaccurate representation
147 6 Light
154 22 Orientation Not sure
172 1 NYU MOU
188 15 New York Times New York Post
263 12 Elbiarea El Diario
263 12 Fisherman Not sure
263 16 New York Newark
263 20 OG Oggi
283 25 Newest Day Newsday
284 11 Newest Day Newsday
305 4 MLU MOU
325 4 “RICHGEL” “RINGEL”
329-320 Various “Ms. Fleming” “Ms. Ringel”
346 6 Governnient Gutterman
352 9 IBS IDS
356 16 reached Made
357 4, 14, etc. Minocqua Moonachie
359 15 Miller Show New Rochelle
361 25 For what purposes does For what purposes was seniority
used in the shops? used in the shops?
362 6 industry work industry-wide
372 11 Mr. Silverman “The Witness” or “Mr. Biegner”
379 11 reporters Employers
380 22 Mr. Silvennan “The Witness” or “Mr. Biegner”
383 11 Betterman Gutterman
383 21 Rockwell Gran Gregorio Rocco Giangregorio
383 22-23 G.N.Gregorio Rocco Giangregorio
419 24 half assed half-asked
469 8-9 Dario El Diario
489 8 Ballantine and Park Valentin and Clark
490 8 artist stage RSH
498 9 artists’ pages RSHs
501 15 non-priority non-member
501 20 PR card
513 11 afforded sorted
516 1 if they had a fight isn’t it a fact
519 17 Beg Beck
521 8 2010 2009
532 25 Beg Beck
546 11 “Agency Demands” “Agency Fee”
(re: GC-7 1)
600 8 “ grown-up” “blown-up”
601 11 2-NLRB-870 332 NLRB 870
603 9,20 Nutley Moonachie
14 Nutley Moonachie
609 23 Nutley Moonachie
626 10 Menocke Moonachie
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
653- (throughout
Grados test) MS. RlNGEL MS. FLEMING
806 15 LD Aerio El Diario
809 22 Drove Joined
831 6 MS. RINGEL MS. OSBORN
832 13,15 MS. RINGEL MS. OSBORN
864 18 2268 22681

APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own
choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted
activities.

WE WILL NOT give effect to or enforce any collective-
bargaining agreements or any other agreements with City and
Suburban, the New York Post, or the New York Times which
in any way gives preferences to one group of employees over
another group of employees based either on their length of time
as union members or on the amount of time that they have been
employed by companies having contracts with the NMDU oth-
er than the companies by whom they are employed.
WE WILL NOT cause or attempt to cause the New York Post to
prevent the promotion of individuals from Group 3 to Group 1
status in order to give preference to other individuals based on
their length of time as union members or based on their time
employed by NMDU signatory companies other than the New
York Post.
WE WILL NOT fail to give employees proper and timely notice
that they are entitled to refrain from becoming union members.
WE WILL NOT on any like or related manner interfere with,
restrain, or coerce employees in the rights guaranteed to them
by Section 7 of the Act.
WE WILL no longer enforce or implement any contract or
agreement with the New York Post that in any way gives pref-
erences to one group of employees over another group of em-
ployees based either on their length of time as union members
or on the amount of time that they have been employed by
companies having contracts with the NMDU other than the
New York Post.
WE WILL request the New York Post to make a revision of
seniority for those employees who were hired from City and
Suburban so that this set of employees be given seniority stand-
ing only from the date of their employment at the New York
Post and further revise any seniority lists so that other New
York Post employees who have worked longer at the Post be
given greater seniority status either as regular situation holders
or as Group 1 extras.
WE WILL make whole with interest, any employees of the
New York Post who have suffered by reason of the discrimina-
tion against them.
WE WILL notify, in writing, all bargaining unit members of
the New York Post and the New York Times of their right to
refrain from becoming members in the Union.
WE WILL revise the list used to allow former employees of
City and Suburban to make bids for either a buyout or employ-
ment at the New York Times. This revision will order “seniori-
ty” by the length of time that these employees have worked for
City and Suburban or its immediate predecessors and will not
be based on the length of time that the former City and Subur-
ban employees have been either union members or on the
length of time that these employees have worked for other
NMDU signatory employers. In the event that one or more
employees who had bid for the buyouts should have had their
bids accepted under such a revised list, we will request the New
York Times to pay them each $100,000. In the event that this
request is unsuccessful, then we will make these employees
whole with interest.
WE WILL request the New York Times to revise the seniority
status of those employees it hired who had previously been
employed by City Suburban to reflect their relative seniority
vis-a-vis each other, based solely on their unit seniority with
City and Suburban.
WE WILL notify Daniel Altieri that we will not cause or at-
tempt to cause any employer to refuse to give him employment
because of his failure to pay union dues when he was employed
at City and Suburban.
NEWSPAPER AND MAIL DELIVERERS UNION OF NEW
YORK AND VICINITY