Newspaper and Mail Deliverers' Union of New York

National Labor Relations Board - Board Decisions

Feb 27, 1951

93 N.L.R.B. 419 (N.L.R.B. 1951)

NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y., ETC. 419
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Hoisting and Portable Local
No. 101 of Greater Kansas City and Vicinity, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Clif-
ford E. Collins and Ervin R. Stewart, thereby encouraging membership in the
Respondent Union, the Respondent Company has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exer-
cise of rights guaranteed in Section 7 of the Act, the Respondent Company
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
4. By causing the Respondent Company to discriminate against employees
in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(b) (2) of the Act.
5. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Respondent Union has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication In this volume.]
NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY
and JOSEPH Rizzo
NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY
and IRVING SHAPIRO, FRED GORTON, ROCCO NICOLINI, JOSEPH SAT-
KOSKY, MICHAEL CONTINO, JOSEPH SCOPELLITI . Cases Nos. O-CB-
141 and 2-CB-254. February 07,1951
Decision and Order
On September 29, 1950, Trial Examiner Charles W. Schneider
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Union had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Union and the
General Counsel filed exceptions to the Intermediate Report, and the
General Counsel filed a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
93 NLRB No. 73.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations of the Trial Examiner, with the modifications and addi-
tions set forth below.
1. As stated in the Intermediate Report, the Board, by a Decision
and Order dated June 29; 1950, approved a settlement agreement with
respect to the charges filed against the Herald Tribune, the employer
of the complainants herein. The Trial Examiner held it unnecessary,
in the absence of the Herald Tribune as a party to the present case,
to determine whether or not the Union "caused" the Herald Tribune
to violate Section 8 (a) (3). of the Act, and thereby violated Section
8 (b) (2) and (1) (A) of the Act. The General Counsel excepted
to this holding of the Trial Examiner. The Board has recently de-
cided that an unfair labor practice finding against an employer is not
a prerequisite to finding that a labor organization caused discrimina-
tion in violation of Section 8 (b) (2) and (1) (A) of the Act.- How-
ever, whether or not the employer is a party to a proceeding, the
General, Counsel, in order to establish a violation of Section 8 (b) (2),
must prove that the labor organization "caused" the employer to en-
gage in conduct which-if the employer were before the Board-
would be found to violate Section 8 (a) (3) .2 The preponderance
of the evidence in the record before us, as well as the findings of fact
set forth in the Trial Examiner's Intermediate Report, amply warrant
a finding that the Union "caused" and "attempted to cause" the
Herald Tribune to engage in conduct which in a proper proceeding, we
would have found to have violated Section 8 (a) (3), and we so find.3
2. The General Counsel has excepted to the Trial Examiner's failure
to find that the Union violated Section 8 (b) (2) during the period
from July 16, 1948, the expiration date of the 1945 contract between
the Union and the Publishers' Association, and October 25, 1948, the
effective date of the successor contract. The Trial Examiner found
that although the Herald Tribune continued, in accordance with its
prior practice, to give preference in employment to union members
over nonunion men, there is no substantial evidence that this practice
was continued during the period in question pursuant to the Union's
demands. We agree in this respect with the Trial Examiner and ac-
cordingly we shall date the unfair labor practice findings herein from
'National Union of Marine Cooks and Stewards, 0. I. 0. (George C. Quinley), 92 NLRB
877.
2 International Union, United Automobile, Aircraft and Agricultural Implement Workers
of America, CIO, Local 291 (Timken-Detroit Axle Company), 92 NLRB 968.
3In line with his dissent in the Quinley case, Member Murdock would agree with the
Trial Examiner's statement : "To make a finding that the Union, in violation of Section
8 (b) (2), `cause' discrimination, it must be found that the Tribune discriminated 'in viola-
tion of Section 8 (a) (3)' : In sum, the Act requires a foundational finding of violation of
the statute on the part of the Tribune. This concession, however, was specifically with.
held by the Tribune in the settlement agreement." However, deeming himself bound by
the majority decision in the Quinley case he joins in the decision herein in holding that the
Union not only "attempted to cause" but also "caused" the Herald Tribune to discriminate
in violation of Section 8 (a) (3).
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y., 'ETC. 421
October 27, 1948, the date of the first definitive coercive action by the
Union at the Herald Tribune.
3. The Trial Examiner found that the Union sought, and secured,
a discriminatory hiring procedure at the Herald Tribune. As a con-
sequence of this procedure, the Trial Examiner further found, certain
nonunion men named in the Intermediate Report,' who had presented
themselves for employment during the period that this discriminatory
hiring practice was followed, were discriminated against in violation
of the Act. The General Counsel has excepted to this finding on the
ground that it should not be limited to the named individuals, but
should be extended to encompass all nonunion men who "shaped"
the Herald Tribune during the period in question.
We agree with the Trial Examiner that the finding of discrimina-
tion herein should not be extended to cover all such nonunion men.,,
In fact, we shall further limit the Trial Examiner's finding. He in-
cluded in his finding of discrimination the names of all those indi-
viduals identified as having presented themselves for employment
during the stated period. We find unlawful discrimination only as
to those nonunion individuals who are shown on the record to have
been actually denied employment when they shaped on specific occa-
sions in favor of men with less seniority who shaped and were hired
because they were union members. Although the Trial Examiner
named 19 individuals as discriminatees, the record does not disclose,
as to 5 of these men,7 that they were discriminatorily denied employ-
ment on occasions when union men with less seniority were hired.
For aught that appears in the record, employment may have been
refused these 5 individuals because of their lack of seniority or for
some reason other than their lack of union membership. Accord-
ingly, the Board's order in this case will be applicable only to the 14
individuals named below as to whom the General Counsel established
a case of discrimination.
The Remedy
Having found that the Union caused the Herald Tribune to adopt
a discriminatory hiring policy, we shall, in substantial accordance
with the Trial Examiner's recommendation, order the Union to cease
4 As stated in the Intermediate Report, certain of these nonunion men were named in
the complaint and a list of other nonunion employees was supplied by the General Counsel
during the hearing
6 The term "shape-up" is customarily used in the newspaper delivery trade in New York
to designate the practice whereby, at appropriate hiring periods during the day, persons
appear at the plant for work, and supervisors select from this group the employees they
need. A person "shapes" when he seeks work in this manner.
See Hearst Consolidated Publications, Inc, 93 NLRB No. 42.
7 J. Pisicchio, J F Burmmgham, M. Di Costanzo, S. Abrams, and L. Katz.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and desist from its unlawful conduct and to take affirmative action
necessary to effectuate the policies of the Act.
We shall further order the Union to make whole the following
named individuals for any loss of pay they may have suffered since
October 27, 1948, as a result of the discrimination against them, in
the manner provided in the Intermediate Report .8
Joseph Rizzo
Irving Shapiro
Fred Gorton
Rocco Nicolini
Joseph Satkosky
Michael Contino
Joseph Scopelliti
Maurice Roth
V. J. Gigante
P. G. Kutzman
Philip Auld
D. Pecoraro
B. Schulman
Wm. Annable
We shall also order the Union to deduct from the amount due these
individuals such sums as would normally have been deducted from
their wages for deposit with State and Federal agencies on account
of social security and other similar benefits and to pay over these sums
to the appropriate State and Federal agencies for the credit of the
discriminatees.9 The Union may terminate its liability for further
accrual of back pay by notifying the Herald Tribune and the above-
named individuals, in writing, that it has no objection to the hiring of
employees, including the above-named individuals, without regard to
their nonmembership in the-Union. The Union shall not thereafter
be liable for any back pay accruing after 5 days from the giving of
notice.1o
We expressly reserve the right to modify the remedial provisions
of our Order herein, if made necessary by a change of conditions in
the future, or to make such supplements thereto as may hereafter
become necessary in order to define or clarify their application to a
specific set of circumstances not now apparent.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Newspaper and
Mail Deliverers' Union of New York and Vicinity, its officers, repre-
sentatives, agents, successors, and assigns, shall :
1. Cease and desist from :
8 The Union shall not be liable for back pay on any day when, absent discrimination,
the individual would not have been employed.
0 Pen and Pencil Workers Union, Local 19593, AFL ( Wilhelinina Becker ), 91 NLRB
883.
10 Pinkerton's National Detective Agency, Inc., 90 NLRB 205.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y., ETC. 423
(a) Causing or attempting to cause the New York Herald Tribune,
In., its officers, agents, successors, or assigns, to discriminate against
employees or applicants- for employment, in violation of Section 8 (a)
(3) of the Act.
(b) Restraining or coercing employees of, or applicants for em-
ployment with, the New York Herald Tribune Inc., its successors or
assigns, in the exercise of rights guaranteed in Section 7 of the Act,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify the New York Herald Tribune Inc., and the individuals
named in the section of the Board's decision entitled "The Remedy,"'
that it has no objection to the hiring and employment of employees,
including the individuals named in the section of the Board's decision
entitled "The Remedy," without discrimination because of membership
or nonmembership in the Respondent, and without prejudice to sen-
iority or other rights and privileges, except to the extent otherwise
authorized by Section 8 (a) (3) of the Act; and further, request the
New York Herald Tribune Inc., to offer the individuals named in
the remedial section of the Board's decision such nondiscriminatory
employment.
(b) Make whole the individuals named in the section of the Board's
decision entitled "The Remedy," for any loss of pay they may have
suffered because of the discrimination against them, in the manner
prescribed in that section of the Board's decision entitled "The
Remedy".
(c) Post at its business offices and meeting halls copies of the notice
attached hereto as Appendix A 1' Copies of said notice, to be fur-
nished by the Regional Director for the Second Region, shall, after
being duly signed by an official representative of the Respondent, be
posted by it for a period of at least sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto as Appendix A, for posting, the
New York Herald Tribune Inc., willing, at the Tribune's plant, in
"In the event this Order Is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice , before the words, "A Decision and Order " the words,
"A Decree of the United States Couit of Appeals Enforcing."
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places where notices to delivery department employees are customarily
posted.
(e) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Appendix A
NOTICE TO ALL MEMBERS OF NEWSPAPER AND MAIL DELIVERERS' UNION
OF NEW YORK AND VICINITY AND TO ALL EMPLOYEES OF THE NEW
YORK HERALD TRIBUNE INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT cause or attempt to cause the NEW YORK HERALD
TRIBUNE INC., its officers, agents, successors, or assigns, to dis-
criminate against its employees or applicants for employment in
regard to their hire or tenure of employment or any term or
condition of employment, in violation of Section 8 (a) (3) of
the Act.
WE WILL NOT restrain or coerce employees of, or applicants
for employment with, the NEW YORK HERALD TRIBUNE INC., its
successors or assigns, in the exercise of their right to self-organ-
ization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, as guaranteed
in Section 7 of the Act, except to the extent that such right may
be affected by_ an agreement requiring membership in a labor
organization as a condition of employment as authorized by
Section 8 (a) (3) of the Act.
WE WILL make whole the following named employees for any
loss of pay suffered as a result of the discrimination against them :
Joseph Rizzo Maurice Roth
Irving Shapiro V. J. Gigante
Fred Gorton P. G. Kutzman
Rocco Nicolini Philip Auld
Joseph Satkosky D. Pecoraro
• Michael Contino B. Schulman
Joseph Scopelliti Wm. Annable
We have no objection to the employment of employees, including
the above-named persons, without discrimination because of their non-
membership in the union and without prejudice to their seniority
and other rights and privileges; we have notified the NEW YORK
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y., ETC . 425
HERALD TRIBUNE INC., and the above-named persons, that we have
no objection to their employment in such manner; and, further, we
have requested the NEW YORK HERALD TRIBUNE INC., to offer the
above-named persons such employment.
NEWSPAPER AND MAIL DELIVERERS' UNION
OF NEW YORK AND VICINITY,
Labor Organization.
By ------------------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Samuel M. Kaynarrd, Esq., and Benjamin A. Theeman, Esq, for the General
Counsel.
Brown, Cross & Hamilton, by Stanley D. Brown, Esq., of New York, N. Y.,
for the Herald-Tribune ; J. Howard Carter, Esq., of New York, N. Y., of counsel.
Samuel Duker, Esq, of New York, N. Y., for the Union.
STATEMENT OF THE CASE
On October 11 and 25, 1948, and May 18, 1949, charges of unfair labor prac-
tices were filed by and on behalf of the complainants herein, Joseph Rizzo,
Irving Shapiro, Fred Gorton, Rocco Nicolini, Joseph Satkosky, Michael Contino,
and Joseph Scopelliti, against Newspaper and Mail Deliverers' Union of New
York and Vicinity, the Respondent Union herein, and the New York Herald-
Tribune. Upon these charges the General Counsel of the National Labor Re-
lations Board caused the cases to be consolidated and his complaint to be
issued on July 27, 1949, against the Union and the Herald-Tribune, alleging
violations of Section 8 (b) (2), 8 (b) (1) (A), 8 (a) (3), and 8 (a) (1) of
the National Labor Relations Act, 61 Stat. 136. Copies of the complaint, the
charges, and the order of consolidation, accompanied by notice of hearing
thereon, were duly served upon both Respondents and the Complainants.
Specifically the complaint alleged that, upon demand by the Union, the
Herald-Tribune on and since July 18, 1948, gave employment preference to union
members over nonmembers because of the former's union membership. In ad-
dition the complaint alleged that from November 15, 1948, the Union restrained
and coerced employees of the Tribune, in further violation of Section 8 (b (1)
(A), by offering nonunion employees promises of benefit to refrain from working.
On August 30 and September 9, 1949, respectively, the Union and the Tribune
filed answers to the complaint denying the commission of unfair labor practices.
In the alternative the Tribune pleaded that if it gave the preference asserted
it did so because of restraints and coercion imposed by the Union.
Upon due notice, a hearing was held at New York, New York, on November 23
and December 12, 1949, and from June 1 to 28, 1950, before the undersigned
Trial Examiner. The General Counsel and both Respondents were represented
by counsel and participated in the hearing.
On May 15, 1950, the General Counsel, the Tribune, and the complainants
executed a settlement stipulation subject to approval by the Board, in which,
without conceding or admitting the commission of unfair labor practices, the
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tribune consented to the issuance of a cease and desist order and consent decree
providing, inter alia, for the cessation of discriminatory hiring practices and for
the offering of nondiscriminatory employment, and in some cases payment of
stipulated sums of money, to the Complainants and other named individuals.
This settlement agreement was approved by the Board, which on June 29, 1950,
issued its Decision and Order based thereon. (New York Herald Tribune Inc.,
Cases Nos. 2-CA-434, 2-CA-452.) Pursuant to reservation made at the hearing,
a copy of the Board's Decision and Order was directed, on August 17, 1950, to be
incorporated in the instant record.
On June 1, 1950, during the course of the hearing, upon motion of the General
Counsel, the cases against the Tribune were severed from the cases against the
Union and the hearing proceeded upon the allegations of the complaint with
respect to the Union alone. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
the parties. A motion by union counsel at the conclusion of the General Counsel's
case to dismiss on the ground the evidence failed to sustain the complaint was
denied. A similar motion made at the conclusion of all the evidence, upon which
ruling was reserved, is now similarly denied. A motion by the General Counsel
to conform the pleadings to the proof with respect to nonsubstantive matters
such as names and dates was granted without objection. Opportunity was
afforded for the filing of briefs and proposed findings and for argument upon
the issues.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
New York Herald Tribune Inc., is a New York corporation having its prin-
cipal office and plant in New York City where it is engaged in the newspaper,
news service, printing, and publishing business. Its principal publication is
the New York Herald-Tribune, a morning and Sunday newspaper of world-wide
circulation.
During the year ending December 31, 1948, the Company in the course and
conduct of its business operations (a) caused to be purchased, transported, and
delivered to its New York plant newsprint and other supplies and materials
valued at an amount in excess'of one-half million dollars, of which approxi-
mately 75 percent was transported to said New York plant from points outside
the State of New York and foreign countries; (b) utilized and continues to
utilize national and international news services, features, and photographic
services which make use of interstate commerce and communications; (c) pub-
lished and continues to publish in its publications advertising at a rate in excess
of three million dollars per annum, a substantial portion of which consists of
national advertising; (d) printed and published and continues to print and
publish, its publications within the State of New York; (e) sold and distributed
and continues to sell and distribute, a substantial proportion of its publications
in a large number of States other than New York State, and in foreign countries.
Net circulation of the Company was, and now is, in excess of a million copies per
annum, a substantial portion thereof constituting sales outside the State of
New York.
II. THE LABOR ORGANIZATION INVOLVED
Newspaper and Mail Deliverers' Union of New York and Vicinity is a labor
organization within the meaning of Section 2 (5) of the Act.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y., ETC. 427
III . THE UNFAIR LABOR PRACTICES
A. Introduction
This is a companion case to that of The Hearst Consolidated Publications,
Inc., et at., 2-CB-187, 2-CA-589, in which this Trial Examiner issued an Inter-
mediate Report and Recommended Order on August 22, 1950, finding inter alia,
that the Union had caused Hearst Publications to discriminate in hiring against
certain nonunion delivery department employees . Both cases arise out of the
same basic situation , namely, attempts by the Union to compel the major news-
papers in New York City , individually and through the Publishers Association
of New York City, their bargaining agent, to continue to give preference in hiring
to union members , after the expiration on July 16 , 1948 , of a collective bargaining
contract , presumptively legal, which had accorded such preference.
The Hearst case involved , directly , action at the New York Journal American
in pursuance of this objective of the Union . The instant case involves sub-
stantially concurrent action by the Union at the Herald -Tribune directed to the
same objective.
In the Report and Recommended Order in the Hearst case the background of
the dispute and the negotiations between the Union and the Publisher's As-
sociation , on behalf of the various newspapers , to resolve it, were spelled out in
some detail . The testimony and other evidence upon which those findings were
made were , in the main , stipulated into the present record. No useful purpose
will be served by repeating them here . Reference is therefore made to the
Report and Recommended Order in the Hearst case for the background facts
and negotiations between the Union and the Publishers ' Association. While
some additional facts with respect to those matters were adduced in the instant
case, they do not, by and large, substantially alter the picture.'
B. Union action at the Herald-Tribune
During the interval between July 16, 1948, the expiration date of the 1945
contract between the Union and the Publishers ' Association and October 25,
1948, the effective date of its successor , the Herald-Tribune, in accordance with
the old practice , continued to hire union members before nonunion employees
in its delivery department.
As was described in the Hearst report, however , shortly after the execution
of the October 25, 1948, agreement , the Herald-Tribune compiled and put into
effect hiring lists for delivery department personnel . On these lists, pursuant to
the provisions of Section 4-A of the contract , regular substitutes and extras
were ranked according to the length or date of their employment with the Tribune.
No distinction was made between those employees who were members of the
Union and those who were not. Thus , for the first time in perhaps 30 to 40
years, employment priority in hiring from the shape-up was to be determined
by factors other than union membership.
On October 26, 1948, the Tribune began to hire according to these lists, im-
mediately evoking protests from the Union . On that " night 2 three union men,
Biblowitz , Mansfield , and Lakowitz , who though junior to all the Complainants
in terms of date of employment by the Tribune, but who nevertheless thereto-
1 The evidence in the present case provides , in some instances , a fuller and possibly more
precise account of the Union -Publishers negotiations , but other than noted herein, variances
in the respective narratives do not appear to be of substantial importance.
2 Except on Saturday , when they commence in the afternoon for the Sunday edition,
delivery department operations at the Tribune begin in the early evening.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore had consistently been hired before the Complainants-were "walked"
(were not hired from the shape line ). Upon complaint by this trio to the "Union,
Union Business Agent Braunstein and Tribune Chapel Chairman Cancellaro met
with Tribune officials, (John Bogart, labor relations executive, and Delivery
Department Foreman Stroll) on October 27, 1948. During this conference
Braunstein objected to the position of the nonunion men on the list, contending
that they could have no seniority antedating July 17, 1948. Braunstein asked
that a number of junior union men be given preferred places on the list, and
when this was refused requested that Foreman Strobl be ordered to declare in-
competent the nonunion men higher on the list ; a request likewise denied. Braun-
stein further said that the Tribune was the "only shop where there was trouble" ;
that the Tribune's management was "over-cautious"; and that the other papers
were not using hiring lists and were hiring in the same way they always had.
Braunstein added that the' employees were "disturbed" over the new hiring
technique, and that because of the press of his work, he could not be present every
night "to calm the men down ." He concluded with the statement that either the
union or the nonunion men would sue the Tribune and that it would be best for
the Tribune to keep everything "in the family ," to hire union men, and to let the
suits be instituted by the nonunion men. As a consequence of this conversation,
revisions , some to the advantage of union men , were made by John Bogart in the
composition of the hiring lists.
Nothing of further significance occurred at the Tribune on that night, Wednes-
day, or the following night, Thursday. Friday and Saturday, however, are the
heavy nights at the Tribune, in preparation for the Sunday edition. On Friday
night, October 29, 1948, eight regular week-end, shapers, extra men, and all
members of the Union, whose names were lower on the hiring list than those of
certain nonunion men over whom they had theretofore had precedence, objected
to the use of the lists. The hiring proceeded despite their objections. When
the names of these men were reached they refused to go to work. Other union
extras stated that even if they were reached they would refuse to work. During
the discussion it was also indicated that unless the lists were withdrawn equiva-
lent difficulty would be encountered on Saturday night. The Tribune finally
met the situation by withdrawing the lists for "further study," and the hiring
proceeded, as Bogart put it, on the "traditional" basis; that is, union men first.
All nonunion shapers were hired that night, however.'
At a conference on the following day, October 30, between Union President
Joseph Curtis, Business Agent Braunstein, Chapel Chairman Cancellaro, John
Bogart, and Foreman Stroll, an understanding was reached that the old hiring
procedure would continue until the study of the lists was completed. During
this conference Union President Curtis said that at the Daily News, the Mailers
Union bad threatened to strike if nonunion men were hired, and that the News
had avoided that action by dismissing the nonunion men. Curtis and Braunstein
then told Bogart and Stroll that there would be "similar trouble on any other
morning paper" the moment it attempted to put hiring lists into operation. The
Tribune is a morning paper.' No apparent further attempt was made by the
Tribune to resume 'hiring from lists or to abandon the practice of absolute
3 Though Cancellaro , chapel chairman , was present , the evidence here, unlike that in
the Hearst case respecting this incident , does not disclose that he participated in the
discussion. In the Hearst case the testimony indicated that Cancellaro was the spokesman
for the union men.
' The morning papers, publishing Sunday editions , are faced with the problem of extraor-
dinary labor demands on Friday and Saturday nights. They are thus more sensitive to the
curtailment of labor supply than the evening sheets.
NEWSPAPER AND MAIL DELIVERERS ' UNION OF N . Y., ETC. 429
preferment of union men until mid-May 1949, the circumstances of which are
hereinafter described. 1'
On November 1, 1948, conferences , which continued without success well into
1949, began between the Publishers ' Association and the Union , for the purpose
of finding a mutually satisfactory hiring formula . The occurrences at these
conferences are described in the Hearst report. In late 1948 , a new set of union
officers, including President Joseph Simons and Business Agents William Walsh
and Harry Waltzer, were elected, and took office on January 1, 1949. The new
officials took an aggressive stand for the preferment of union men . During the
negotiations between the Union and the publishers the union representatives con-
sistently pressed for absolute hiring priority for union members. At the first
meeting between the new officers and the Association on January 14, 1949, Presi-
dent Simons said among other things that if the publishers "need extras the
Union will supply them . . . . I serve notice in the meantime union men are
going to work before nonunion men." To facilitate agreement the publishers
supplied various test lists and other personnel data to the Union from November
1948 to March 1949; the adjustment machinery provided under the contract
was invoked ; and tripartite conferences with National Labor Relations Board
.Regional Office officials were held ; none of which was productive of any mutually
agreeable solution.
Finally, in mid-March 1949, apparently convinced that there was no prospect
of bilateral accord and , pressed by , the National Labor Relations Board for
action because of the pendency of unfair labor practice charges filed by nonunion
men, the publishers decided to set up hiring lists unilaterally and to put them
into operation.
May 1949
The compilation of these lists was completed by May 11, 1949, and on May 15
and 16 they were posted in the various newspapers , effective May 17. At the
Tribune they were removed ; according to his later statement by Business Agent
Walsh .` They were reposted and again removed, by whom the record does not
disclose , and posted for a third time on May 18. Hiring on May 17 was in
accordance with the lists , as it was on the following day, May 18.
May 17. On the night of May 17, 1949 , Business Agent Walsh appeared at the
New York Times and told its officials , including Andrew Fisher and Delivery
Department Foreman O 'Gorman that the lists were not to be used that night,
otherwise there would be "trouble ." He further said in substance that if the
Times would cooperate he would "stay away from" the Times that night and
"settle the matter as the Journal American the next day ," where, he said, the
"bubble" was going to "burst." When Fisher demurred, Walsh responded that
Fisher had "seen nothing compared to the trouble " he would get if hiring were
done from the list. Walsh thereupon left saying that he was going to the
Tribune. His parting shot was that "I hope you do hire from that list , and you
will take the consequences ." Fisher communicated these events to the Publishers'
Association and to the Tribune!
5 The finding as to Walsh ' s statement is based on the testimony of John Bogart Tribune
executive , and William Mapel, vice chairman of the Publishers ' Association . Their evidence
is to the effect that at the Adjustment Board meeting on May 19 , 1949 , Walsh displayed
the Tribune list , declaring that he had removed it . In the Tribune case Walsh denied
either removing the list or displaying it. That he made the statement attributed to him
by Bogart and Mapel is, however , undenied.
6 The findings as to Walsh 's statements at the Times are based on Fisher 's testimony.
While Walsh denied making certain other declarations attributed to him by Fisher, the
above facts are not controverted.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 18, 1949. Whether Walsh visited the Tribune after his call at the Times
on May 17 is not clear from the record, but in the afternoon of the following
day, Walsh, Union President Simons, and Vice-President Walters conferred with
Tribune officials Bogart, Business Manager Hall, Circulation Manager Pinkham,
and Delivery Department Froeman Strobl. During the course of the discussion,
Walsh stated that if the Tribune hired from the lists there would be "a-fight
tonight, and a good one," that the men were "out of control," and that "the pub-
lishers wanted a protest walkout, but they will get a complete walk out." Walsh
then left the conference. President Simons disclaimed responsibility for Walsh's
actions, saying that under the union constitution he could not interfere in the
business agent's sphere of activity. While Simons and Walters both said that
they would tell Walsh not to do anything "drastic," Simons added that he was
not Walsh's "keeper," and declined to give assurances that there would be no
walkout. Simons further stated the Union's position to be that, until the National
Labor Relations Board or the Adjustment Board directed otherwise, union mem-
bers should be hired first. Additionally, he declared that the Union intended to so
direct the foremen, who were union members. Asked by Hall how the Tribune
could help him without discriminating, Simons answered, "I don't know."'
About 9: 45 that night, Bogart and Walsh had a further conversation in which
Bogart tried to persuade Walsh to let the hiring matter be disposed of by the
Adjustment Board. Walsh indicated disinterest, but nevertheless accompanied
Bogart to Business Manager Hall's office, where a short but apparently inhar-
monious discussion ensued. This terminated with a declaration by Hall that
he was "sick and tired" of listening to Walsh's "kind of talk" ; whereupon Walsh
walked out saying "you asked for it. Now you are going to get it," and inti-
mating that Hall would lose his job over the matter. As he walked out, Walsh
said, referring to the New York Times, that he was "going to get Mr. Times
tonight."
During or right after this visit by Walsh the Tribune delivery department
employees engaged in a slowdown, which continued into the morning of May 19 ;
one consequence of which was that an edition "blew" (missed) the train to
Hartford.
At about 10: 30 p. in. Walsh appeared at the Times accompanied by a number
of union men formerly employed by the defunct newspaper PM, whom he claimed
had formerly worked for the Times, and for whom he demanded preferential
hiring. Walsh informed the Times official, Fisher, that he was "holding up the
hiring list." Fisher suggested that the matter be submitted to the Adjustment
Board, to which Walsh responded that if Fisher insisted on being the "scapegoat
for the others," that was "alright"; that he was "not going to make any threats" ;
but that, to quote Fisher, "if the men went out it would not be for ten minutes,
it would be for all night." The question of hiring the PM men seems to have been
compromised in some fashion though not entirely to Walsh's satisfaction, some
nonunion men being hired and some union members walking. But there was no
strike and Walsh, still intimating that there would be "trouble," left, saying
that he guessed that the whole matter would be "settled somewhere else
tomorrow."
Later in the evening, around 11 p. in. Walsh reappeared at the Tribune and
again spoke to Hall and Bogart. He declined to agree to let the matter be
disposed of by the Adjustment Board because, he said, "the crisis in the whole
7Business Agent Walsh denied that he ever "threaten[ed] the Tribune with shutting
down the place in order to assert [ his] Interpretation of the contract ." This qualified
assertion scarcely seems to be a categorical denial that he threatened to strike the
Tribune ; but if so construed , the evidence to the contrary Is overwhelming.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N., Y., ETC. 431
city-wide problem will come tomorrow morning at the Journal-American," and
that he would "just as soon let the matter be fought out [there]."
May 19, 1949. As Walsh had predicted, the "crisis" came at the Journal-
American on this Thursday morning. President Simons called a strike, more
fully described in the Hearst report, because the Journal insisted on hiring from
the lists, and the walkout was not terminated until the Journal, in compliance
with Simon's conditions for termination, hired six union members who had been
walked at the shape. On the following day the Journal abandoned the hiring
lists and resumed the practice of hiring union men first.
On the evening of May 19, the Adjustment Board, invoked by the publishers,
announced the decision amending the hiring formula, ultimately formalized in
the "interim" or May 23 award as "industry" in place of "shop" seniority; the
hiring lists to remain in effect, however, until May 23. After this announce-
ment, Business Agent Walsh asked the Tribune officials, Hall and Bogart, to
abandon the lists immediately, rather than await May 23. When they refused
Walsh indicated his displeasure, and characterized Hall and Bogart as a "pair
of bums" or something similar.
The Threat to "Blackball" the Nonunion Employees
Prior to the hiring at the Tribune on May 19, 1949, Business Agent Walsh
asked that the time of the floor shape be advanced 5 to 10 minutes. This was
refused.' Hiring was then carried out in accordance with the lists. After the
shape Walsh also asked that the foreman be ordered to hire another union man.
This request was also refused.
Several nonunion men were hired at the garage shape The remainder walked.
All then proceeded to the plant. When they arrived there a group of union
members stopped the walkers and asked them not to go in for the floor shape
until the union men had been hired. A failure to cooperate, they were told,
would result in their being "blackballed" by the Union. Suggesting that they
wished to talk the question over with someone having union authority, the
nonunion men (Satkosky, Contino, and Maurice Roth), asked to see Business
Agent Walsh. He was found at the Times. ' In the ensuing discussion Walsh
exhorted the nonunion men to let the union members be hired first, saying that
the entire dispute would be adjusted within a few days. He further said, "when
this is straightened out, I will help you get [union] cards at the general body
[union] meeting . I will tell them you played ball with us." The nonunion men
finally agreed to stay away from the plant on the following day (Friday) and
also on Sunday ; and on Saturday to let the union men be hired first.
On May 20 Walsh, in a phone conversation with Tribune official Bogart, again
asked that the hiring lists be taken down immediately, pointing out that the
Journal had done so . He also asked Bogart to persuade Fisher at the Times
to do likewise . Walsh further said that Tribune Business Manager Hall had
been "making big talk" but that he (Hall) would "find out what my [Walsh's]
big talk means," and that Walsh would "make Hall cry." Bogart declined to
take down the lists. On the same evening Jacob Schachter, night circulation
manager of the Tribune, similarly declined a request by Walsh that the hiring
lists be taken down. Walsh thereupon swore, according to Schachter, "over
his dead wife's body, that he would "get even with Hall" would "fix the Tribune"
and would "close the plant down."
8 At this time there were two shapes , one at the garage at about 10: 15 p in , where driv-
ers or "chauffeurs" were hired , the other at the plant at about 10 : 25 or 10 : 30 p. in., where
doormen were selected . The interval of time permitted those walked at the garage to shape
the floor. Advancement of the time of the floor shape would have precluded participation
by garage walkers.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 21 and 22, 1949, the Tribune continued to hire according to the hiring
list. On the 21st, after Foreman Strobl had selected several nonunion men
from the shape, Business Agent Walsh protested and directed the nonunion men
to go outside. Most did so. Strobl then proceeded to hire the union members,
after which the nonunion men were called back in and some were hired. The
incident caused some apparent delay in hiring, for while the discussions were
going on, acting night circulator C. V. Nealy hurried up to Foreman Strobl and
exhorted him to get the men to work because the presses were running. Walsh
and other union men pushed Nealy aside and told him to get back to his office,
saying that "everything would be all right."
The Payroll "Padding"
On May 23, 1949, the interim award went into effect, substantially making
service in the industry the criterion for seniority and putting authority in the
foreman to determine hiring priority according to that standard. Nevertheless,
when on May 26, 1949, Tribune Foreman Strobl sought to hire nonunion men
he deemed senior before hiring several union members, Business Agent Walsh
threatened, to quote Night Circulation Manager Schachter, to "make trouble,"
to "pull the shop," and to "close the Tribune." The Tribune thereupon
"padded" its payroll by hiring three union members in excess of its needs for
the night ; though it did not hire all the available union men.'
This procedure of padding the payroll with union members was followed by the
Tribune on a number of occasions thereafter, upon requests or threats by Walsh.
On May 27 Schachter refused a demand by Walsh for a "pad" but on June 1,
1949, Walsh called a strike at the Tribune over its refusal to hire "sons" 10 out of
proper order. The stoppage was terminated when the Tribune under protest put
on additional unneeded "sons." Thereafter as a "favor" to Walsh, the Tribune
ordered Foreman Strobl, as standard operating procedure, to match the non-
union men hired by the addition of more union members, up to a maximum of
three. This practice was maintained until early July and then was discontin-
ued, under what circumstances is not altogether clear. In mid-November 1949,
just prior to the union elections, the "pad" was reinstituted upon the request of
Business Agents Walsh and Waltzer. Bogart's testimony is that on this latter
occasion :
. . . Walsh and Waltzer stated to me that their political opponents were
stirring up all kinds of trouble. As a consequence of such trouble, they said
that irresponsible parties might threaten the security of our delivery sys-
tem unless the newspaper and the two business agents worked together
to control the situation.
I asked them what precisely "working together" might imply at this
time, and they said it would mean that until December 5, the date of the
election the office would be required to hire union men first, and to hire
nonunion men only after all union men available for duty had been engaged.
Bogart replied that such a course was illegal ; but as an alternative directed
Foreman Strobl to pad the payroll with a "reasonable number" of union men
° Schachter also testified that on this occasion or on the following night Walsh threatened
Complainant Rizzo with physical violence. This Rizzo denied. It is not found that such
an incident occurred.
11 Sons of union members,,who had acquired membership by succession upon the death of a
member, generally their parent The sons referred to were all first employed by the
Tribune after the Complainants. So far as the record discloses, none had any industry
experience other than at the Tribune.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y., ETC . 433
after the "all up" ( signal that the hiring was concluded ). Pursuant to another
request of Walsh's made during the same discussion , several union men in whom
Walsh was "interested" were jumped from the bottom of the list over several
other union members. In the process nonunion men sandwiched between the
two groups were relegated to the bottom of the' hiring order . On another occa-
sion later in the same month Walsh again asked preferment for a union man be-
cause of political considerations but on this occasion the Tribune ' s response
was noncommital.
Premium-paydays were also the occasion for demands by Business Agent
Walsh for preference to union members . Thus on September 3, 1949, the Sat-
urday preceding Labor Day and thus a double-time clay, Walsh gave Foreman
Strohl a written memo directing Strobl to hire only union men that night The
Tribune complied . Walsh's note to Strohl was cited to nonunion men by As-
sistant Foreman O'Hara as the reason for their not being hired.
In mid-September 1949, the Adjustment Board issued the point system award
which the New York courts , upon application of the Union , voided on November
3. Even earlier however, on September 19, the Adjustment Board had volun-
tarily set the award aside pending further investigation of asserted inequities.
The award was in effect for several days at the Tribune and until set aside some
nonunion men were hired before junior union men . The threats made by union
representatives at the Adjustment Board proceedings on September 19, 1949,
if the papers did not hire union men, are detailed in the Hearst report.
On November 10, 1949, the Union struck the Daily News over that paper's
refusal to hire five union members, a strike for which the Adjustment Board
' assessed $1,500 damages in favor of the News.
Later in November , Business Agent Walsh again asked nonunion men at the
Tribune to let union members be hired first . On November 14, as they were
about to sign the work sheet after having begn hired , Walsh spoke to Complain-
ants Shapiro , Nicolini, and Contino in the presence of Tribune Assistant Fore-
man O'Hara . Walsh asked the Complainants as a "favor" to him, to "walk" and
to let the "sons" go to work first . Walsh further said that if they did he would
"fix it up with the union and give you a break and tell them you are playing ball
with us." He added, however : "If you don 't do that, I will have to pull the
shop." The trio complied and absented themselves from the plant.
In 1950 the merger of the Sun with the World -Telegram on January 5, which
displaced many persons in the Sun's delivery department , resulted in increased
pressure by the Union for the employment of union members . When the Sun
closed the Sun chapel assigned the displaced men to various papers, among
them the Tribune . On January 6, 1950, the day after the closing of the Sun,
Business Agent Walsh spoke to Tribune official Bogart concerning the hiring of
the Sun men . Walsh said , among other things , that while he could not be
quoted, the Tribune should not hire any nonunion men ; stating that if it did,
there would be a "revolution"; suggested that in a situation such as this where
union men were "starving ," the Union would not be deterred by a "fine" such
as followed the strike at the Daily News ; nor by the Taft -Hartley Act or the
interim award . 11 Queried by Bogart as to the response by other papers, Walsh
stated that he "guessed " that the News and the Mirror would "meet [his] point
of view" but that the Times might insist on hiring nonunion men, and if it did,
there would be "murder." He further said : "the non -union mem won't take
11 Walsh's reference to the Adjustment Board award in the News strike, which was not
formally announced until 3 days after this conversation, January 9, 1950, is not explained
by Bogart, upon whose testimony the finding is based. Walsh was a union representative
on that board, however, and presumably its decision had already been arrived at on the 6th.
943732-51-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our bread." Pursuant to demand made by Walsh in that discussion, and re-
iterated later in the day at a conference between Simons, Walsh, Waltzer, and
various Tribune officials, the Tribune instituted the following hiring order: (1)
Union men who regularly shaped the Tribune; (2) Sun men (presumably all
union members) ; and (3) nonunion employees. As a consequence, the possibil-
ities of employment for nonunion men substantially decreased, until alleviated
somewhat in March 1950 by the institution of a new edition, the "early bird."
Walsh's intimation to Bogart that trouble would follow if the Times sought
to hire nonunion men was borne out by events. On the same night, January 6,
the Times resisted demands by Walsh and Union President Simons, under threat
of strike, for the hiring of the Sun men before nonunion men. Simons and
Walsh then stopped the regular situation holders from going to work. After
a 20-minute delay the Times submitted, walked the nonunion men, and put the
Sun men to work under protest. These events were promptly reported to the
Tribune.
C. Conclusions
0
The foregoing facts disclose that from 1948 the Union has persistently in-
sisted upon absolute preference in hiring at the Tribune for union members over
nonmembers, without regard to the contractual requirement for hiring according
to seniority. This insistence, as the facts show, has been accompanied by threats
of various kinds of retaliatory action, including threats to strike and strikes
themselves. To enumerate and recatalogue them would serve no useful purpose.
In sum, the record and the foregoing findings establish that since late 1948 the
Union has continuously engaged in a course of coercive action designed to secure
the hiring by the Tribune of union before nonunion men.
To be sure, as the union testimony, principally that of Business Agent Walsh
and Union President Simons, suggests, there were genuine points of difference
between the Union and the various publishers over the interpretation of the
contract, the law, the various awards, and the proper seniority to be accorded
particular individuals. These differences were, however, largely consequential
and not primary ones. They represented, in the main, union arguments de-
signed to provide a color of right for the basic demand, namely, the absolute
preferment of union men. Thus, the Union supported and demanded the prin-
ciple of industry-wide seniority, with its obvious advantages to some union
members, but when that standard failed to secure its objective completely, the
Union rejected it. This is most evident in the case of the insistence upon prefer-
ence for "sons" who were junior in shop seniority to the Complainants and
without any prior experience in the industry. It is additionally evident in the
Union's demands with respect to the hiring of Sun employees. In this situation,
as between union men, a shop seniority standard was substituted for industry
seniority. But in all these deviations the action was consistent in one respect :
always it was designed to result in the subordination of nonunion men to what-
ever union men were available. If differences over the interpretation of the
contract, the awards, and individual work records were the basic cause of the
Union's conduct, the evidence does not persuasively reflect it. There were
moreover, adequate remedies provided under the contract and the various awards
for erroneous or arbitrary action of the hiring authorities. But the Union
declined to make use of them. Thus, Walsh declined suggestions by Tribune
officials Hall and Bogart, and Times official Fisher, that the problem be submitted
to the Adjustment Board.
It is suggested by the Union that the union officials, and Business Agent Walsh
in particular, are customarily given to the use of exaggerated and bombastic
expression, much of it motivated by inter-union politics and being statements
NEWSPAPER AND MAIL DELIVERERS ' UNTION OF N. Y., ETC. 435
"Only for the record ," and thus not to be taken at face value . That there was
much in the union statements of flamboyant hue is no doubt true, but it is also
evident that the threats and pressures exerted on the Tribune were not empty
gestures , as the various work interruptions attest. As Bogart expressed it in
his testimony , while this Union's officials are the most volatile of all with whom
the Tribune deals, he did not regard their declarations as merely extravagant
expression : "I believe experience has shown that when they say something they
mean it."
Additional question is raised as to union responsibility for the acts of officials
such as those of Walsh and Waltzer in November 1949 in seeking preference for
union members for their own intra-union political reasons. Were these inci-
dents the only evidence of union attempts to cause discrimination , the defense
might have merit; a question unnecessary to decide . However, Walsh's and
Waltzer's immediate objective , the securing of preference for union members
whatever its legality , was also the Union's objective , and clearly within the
scope of the business agents' authority . That they may have had ultimate
personal purposes beyond those of the Union is immaterial . They were exer-
cising unquestionable authority to secure the Union 's objective , discrimination,
and consequently the Union is bound by their action . Nor is it of moment that
Walsh and Waltzer disclosed their personal motivation to the Tribune officials.
This merely made it more, and not less, likely that failure to comply with their
demands would meet with retaliatory action.
It is found that by threatening to strike and by striking the Tribune, and
by similar action at other newspapers where as related herein such action took
place, for the purpose of compelling the Tribune to give preferential hiring:
privileges to union members solely on the basis of union membership , the Union
has attempted to cause the Tribune to discriminate against employees in viola-
tion of Section 8 (a) (3) of the Act; the Union thereby violating Section 8 (b)
(2) of the Act . It is further found that the Union thereby, in violation of Sec-
tion 8 ( b) (1) (A) of the Act, also restrained and coerced employees in the
exercise of rights guaranteed in Section 7. (See cases cited in Hearst report,
footnote 19.)
It is further found that Walsh 's statements to the nonunion men on May
19 and November 14, 1949, substantially to the effect that he would assist them
in getting union membership cards , if they would desist from working or let
union members be hired first , constituted promises of benefit and additional
violation by the Union of Section 8 (b) (1) (A).
While the proviso to Section 8 (b) (1) (A) does "not impair the right of a
labor organization to prescribe its own rules with respect to the acquisition
or retention of membership therein, " the Board has held that the right to work
free from restraint or coercion is protected by Section 7 when exercised in
connection with an employee's abstention from concerted activity. See, for
example, Smith Cabinet Manufacturing Company, Inc., 81 NLRB 886, where
the Board said: "The interdependent guarantees of Section 8 (b) (9) (A)
and Section 7 of the Act include the protected right of employees to work ilk
the face of a str' ike." See also Randolph Corporation , 89 NLRB 1490.
From the , principle of those decisions, it follows that in the instant case the-
nonunion employees ' had the right tinder Section 7 to refrain from engagement
in the Union 's concerted activity . Promises of benefit for cooperation in the
furtherance of such activity were therefore a violation of Section 8'(b) (1) (A).
The threat of "blackball" made by union members on May 19 are not found
to be unfair labor practices because of the absence of showing of union agency,
and because not alleged in the complaint . Walsh 's threat to the nonunion men:
on November 14, 1949, to "pull the shop" is also not alleged as a violation.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D Other Issues
1. The complaint alleges that the Union at all times after July 18, 1948, de-
manded that the Tribune give hiring preference to union members.
The first occasion on which the Union engaged in any definitive coercive ac-
tion at the Tribune, however, is October 27, 1948, when Business Agent Braun-
stein, declaring that the nonunion men had no seniority ante-dating July 17,
1948, made a veiled threat to strike unless union men were hired first. While
the evidence establishes that the Tribune continued during the hiatus between
the two contracts-July 17 to October 25-to hire union members before non-
union men, there is no substantial evidence that this action was pursuant to
union demands. John Bogart's testimony, in fact, indicates the contrary.
Moreover as was found in the Hearst case, and for the reasons stated therein,
it is my conclusion that, although the October 25, 1948, contract gave non-
union men seniority retroactive to the date of their employment, during the
interim period between the two contracts their seniority dated from July 17,
1948. The unfair labor practice findings are therefore made beginning Octo-
ber 27, 1948, the date of Braunstein's first threat to the Tribune.
2. Though it is his position that the record otherwise amply supports the
allegations of unfair labor practices, the General Counsel alternatively takes the
position that the industry-wide seniority standard of the interim award is illegal.
For the reasons stated in the Hearst Intermediate Report, the contention is not
sustained. Pacific American Shipowners Association, 90 NLRB 1099. While
the evidence in the Tribune record affirmatively discloses the additional fact that
up to July 1948 closed-shop conditions existed in the industry as far back as
approximately 1908, this does not seem to change the situation. Absent persua-
sive evidence that a system of industry seniority was contrived by Chairman
Hays of the Adjustment Board and the publishers (whatever the Union's mo-
tives) for the purpose of giving unlawful preference to union members-of which
I perceive none here-the parties were free, so far as the Act is concerned, to
establish whatever nondiscriminatory hiring standards they wished. It could
not be seriously contended that given a history of open-shop conditions, industry
seniority hiring standards would be per se illegal. To hold that a closed-shop
history makes it so is to penalize ex post facto practices legal during the period
of their use.
3. The General Counsel further contends that Tribune Foreman Strohl is an
agent of the Union because of his membership in the Union (required by the
contract), and provisions of the union constitution (article X)-seemingly last
revised in April 1939-requiring union foremen to give employment preference
to union members. Section 6 of the bargaining contract, however, prohibits the
exercise of authority by foremen "contrary to contract provisions or the law."
The same section further prohibits union discipline of foremen for carrying out
directives of management under the contract. However the constitutional
clauses be construed, these provisions of the contract appear to me to negate the
conclusion that in his hiring functions the foreman is acting as union agent.
That the Union may or did attempt, contrary to the contract, to control the fore-
man's actions by the imposition of union discipline, may be, as was found in the
Hearst case, coercive action in violation of Section 8 (b) (2). It is not, how-
ever, evidence of union agency status. Union membership does not establish
union agency. Sunset Line and Twine Company, 79 NLRB 1487; Irwin-Lyons
11 Cross examination , June 9, 1950 :
Q. Was that system [of hiring between July 17 and October 25 , 1948] introduced by
the Tribune at the request of any union official after July 17, 1948?
A. No.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y., ETC . 437
Lumber Co, 87 NLRB 54; 93 Daily Cong. Record 4561 (May 2, 1947) ; ID. 4142
(April 25, 1947).
4. It is also asserted, alternatively, that because of its status as a "closed
union" the Union additionally violated Section 8 (b) (2). The Complainants
were not eligible for union membership. Since violations of Section 8 (b) (2)
have been found, it is unnecessary to make further construction of the Section or
determination as to whether it has been additionally violated.
5 Question is raised as to whether, in the absence of the Tribune as a party
to the case, it can or should be found that the Union "caused" the Tribune to dis-
criminate against employees. To make a finding that the Union, in violation of
Section 8 (b) (2), "caused" discrimination, it must be found that the Tribune
discriminated "in violation of subsection 8 (a) (3) " : in sum, the Act requires
a foundational finding of violation of the statute on the part of the Tribune. This
concession, however, was specifically withheld by the Tribune in the settlement
agreement. The precise question is whether such a finding can, or ought for
policy reasons to, be made without the Tribune's participation I'
In the case of J. K. Paterson, 90 NLRB 1851, at the present time the most recent
decision on the point, the Board left this problem open, saying:
We do not pass upon the question whether the Seattle Transfer Company
would be a necessary party respondent for the finding of a violation of Sec-
tion 8 (b) (2) in this case. The issue was not raised by any of the parties,
and, in any case, the complaint herein is being dismissed.
In the instant case, I find the Tribune not to be a necessary party to a finding
that the Union "attempted to cause" the Tribune to violate Section 8 (a) (3).
The evidence amply supports the conclusion that it did so, and the violation of
Section 8 (b) (2) has therefore been established All appropriate remedial
authority for violation of the subsection may consequently be invoked. I do
not find it necessary therefore to determine that the Union also "caused" the
Tribune to violate Section 8 (a) (3).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring
in connection with the operations of the Company described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
V. THE REMEDY
It having been found that the Respondent has engaged in and is engaging
in unfair labor practices, it will be recommended that it cease and desist there-
from and take aflirinative action necessary to effectuate the policies of the Act.
"And Others"
The complaint, as drafted, alleged that the Union demanded and the Tribune
accorded "preference in employment to members of Respondent Union" [para-
graphs 7 and 8] thereby causing discrimination "in regard to the hire and
tenure . . . of Respondent Company's employees and the [Complainants]."
[Paragraph 12] It ,further alleged in other paragraphs [10 and 14] discrimina-
tion by the Tribune by "[employment] preference to union members . . . over
[the Complainants] . . . and others. . . [Emphasis supplied.] In reliance
on the case of Reliable Newspaper Dehvery, Inc, 88 NLRB 659 (and see also
Somerset Classics, Inc., 90 NLRB 1676), where the complaint alleged discrimina-
13 Suggested policy factors, among others, are : (1) that an affirmative answer may
discourage employers from entering into settlement agreements ; (2) contrarily, that a,
negative answer will discourage the General Counsel from entertaining them.
438 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lion as to "all" nonunion employees, the General Counsel contends that this is
a class action and that the remedial order should therefore contain a direction
to reimburse all nonunion employees, irrespective of whether named or identified
in this record, for any loss of wages due to discrimination. As I understand
the General Counsel's position, he deems the identity of such persons essentially
a compliance problem. However, for the reasons cited in the Hearst Inter-
mediate Report, where the complaint was similarly phrased and the same con-
tention raised, I do not deem the Reliable case applicable. In addition to what
was said in the Hearst Report the following observations may be made: Because
of the peculiarity of the employment procedure here, each substitute or extra
employee had to present himself at the shape in order to be considered for
employment each day he wished to work. It is clear that a discriminatory
hiring procedure was sought by the Union, and there is evidence that it was
secured. It is also clear that this procedure was directed at all nonunion persons
who did or should present themselves. It does not follow, however, that all
nonunion employees were thereby discriminated against ; and absent such a
finding I do not apprehend that all nonunion employees should be accorded a
reimbursement order. Because of the nature of shape-up hiring a specific em-
ployee could not be said to be the victim of discrimination, actual or attempted,
without evidence that he was available for employment. Because not all em-
ployees shape regularly no presumption can be indulged that all nonunion
employees presented themselves for employment at some time between Oc-
tober 27, 1948, and June 28, 1950, the date of the close of the hearing. Absent
either such a presumption or evidence that an employee was available for em-
ployment no finding can be made as to discrimination. No finding of discrimina-
tion or order of reimbursement embracing "all" nonunion employees is there-
fore made
However, upon direction of the Trial Examiner, and without prejudice to
his basic position, the General Counsel supplied a list of nonunion employees
whom he claimed as ciscriminatees. In substance this list appears to comprise
all nonunion delivery personnel appearing on the Tribune's payroll records. In
addition to the Complainants, the evidence establishes that the following non-
union employees presented themselves for employment at some time during the
period in question while the Union was imposing its "union preference" policy :
J. Pisicchio, Maurice Roth, V. J. Gigante, Philip Auld, P. G. Kutzman, D. Pecoraro,
B. Schulman, Wm. Annable, J. F. Birmingham, M. Di Costanzo, S. Abrams,
and L. Katz. The discriminatory policy being in effect at such times, these men
are also discriminatees. This is so whether they were actually hired or not.
Though they may or may not have suffered wage losses (a question to be de-
termined in compliance proceedings) they were entitled to be considered for
employment on a nondiscriminatory basis, and any attempt to cause their hiring
on a contrary basis was a violation of Section 8 (b) (2). The names of these
individuals will therefore be added to the remedial order 14
Having found that the union has attempted to cause the Tribune to discrimi-
nate in regard to the hire and tenure of employment of the following named
14 In the Hearst Report I declined to add to the remedial order the names of three
nonunion men not named in the complaint , shown to have presented themselves at the
shape and refused employment during the time a discriminatory hiring policy was in
effect. The reason there given, which I then thought impelling , was that, the record
not disclosing the seniority standings of these men relative to others hired, there was no
basis for finding discrimination . Upon reflection , I have concluded that that determina-
tion was erroneous , and that proof of individual presentation for employment while
a discriminatory policy is in effect establishes discrimination .- Whether that discrimina-
tion resulted in actual loss of wages to the identified individuals is a matter to be
determined in compliance proceedings . Cf. Daniel Hamin Drayage Co., Inc., 84 NLRB 458.
HARTLAND PLASTICS, INC. 439
persons, it will be recommended that the Union notify the Tribune, in writing, that
it has no objection to the nondiscriminatory employment of these individuals ;
and further, that it request the Tribune to offer them employment without dis-
crimination because of their nonmembership in the Union and without prejudice
to their seniority and other rights and privileges.
Joseph Rizzo P. G. Kutzman
Irving Shapiro Philip Auld
Fred Gorton D. Pecoraro
Rocco Nicolini B. Schulman
Joseph Satkosky Wm. Annable
Michael Contino J. F. Birmingham
Joseph Scopelliti M. Di Costanzo
J. Pisicchio S. Abrams
Maurice Roth L. Katz
V. J. Gigante
It will be further recommended that the Union make those individuals whole,
in accordance with the Board's usual policy. (See for example, F. W. Wool-
worth Co., 90 NLRB 289; Crossett Lumber Co., 8 NLRB 440; Republic Steel Cor-
poration v. N. L. R. B., 311 U. S. 7), for any losses of pay incurred by reason of
the attempt to cause discrimination against them. The Union may terminate
further accrual of back pay by notifying the Tribune that it has no objection to,
and permitting, their employment by the Tribune on a nondiscriminatory basis.
The period for which back pay is to be computed shall be from and including Oc-
tober 27, 1948, to the date of compliance with these recommendations.
On the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. New York Herald Tribune, Inc., is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. Newspaper and Mail Deliverers' Union of New York and Vicinity is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By attempting to cause the New York Herald Tribune, Inc., to discriminate
against the employees named in Section V, above, the Union has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
4. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
HARTLAND PLASTICS , INC. and DISTRICT No. 48, INTERNATIONAL Asso-
CIATION of MAbHINISTS. Case No. 13-CA385. February 27,1951
Decision and Order
On November 6, 1950, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
93 NLRB No. 72.