Newspaper and Mail Deliverers' Union of N.Y. and Vicinity

National Labor Relations Board - Board Decisions

Feb 14, 1951

93 N.L.R.B. 237 (N.L.R.B. 1951)

NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 237
NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY
and ANTHONY FALLARA, Louis SALSANO, JACK TOBIN, THEODORE
GRAFF, ROBERT KRIOSKI, RICHARD RICCO, GEORGE HONAN, AND ROCCO
FILAZZOLA
THE HEARST CONSOLIDATED PUBLICATIONS, INC. and ANTHONY FAL-
LARA, LOUIS SALASANO, JACK TOBIN, THEODORE GRAFF, ROBERT
KRIOSKI, RICHARD ROCCO, GEORGE HONAN, AND Rocco FILAZZOLA.
Cases Nos. 2-OB-187 and 2-CA-589. February 144, 1951
Decision and Order
On August 22, 1950, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter the Respond-
ent Company, the Respondent Union, and the General Counsel filed
exceptions to the Intermediate Report. The Respondent Company
and the General Counsel also filed supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the modifications and additions noted
below.
We agree with the Trial Examiner that the Respondent Company
pursued employment practices in its delivery department which gave
preference in job assignments to members of the Respondent Union
over nonmembers and resulted in discrimination against the named
complainants, in violation of Section 8 (a) (3) and (1) of the Act.
We also agree with the Trial Examiner that the Respondent Union, in
violation of Section 8 (b) (2) and (1) (A) of the Act, caused and at-
tempted to cause the Respondent Company to engage in this dis-
criminatory conduct by calling strikes or slowdowns against the Coin-
pany, the Herald Tribune, and the Daily News, threatening strike
action against the Company and the Publishers' Association,' and
'Although the Trial Exanuner did not specifically refer in the portion of his Inter-
mediate Report entitled "Conclusions" to the stokes or slowdowns at the Herald Tribune
and the Daily News, and the threats to the Publishers' Association, he found elsewhere
in his Report that this conduct "was calculated to, and in any event had the necessary
effect of serving notice on all Association papers that any attempt to hire wihout refer-
ence to union membership, would be met by the Union with retaliatory action
93 NLRB No. 42.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatening Foreman Burnbaum with disciplinary action and actually
fining him for declining to discriminate in favor of members of the
Union.
The General Counsel excepts to the Trial Examiner's refusal to find
that the Respondents" discriminatory practices began before October
25, 1948, the date of their first contract under the amendments to the
Act. The record discloses, as the Trial Examiner also found, that
after the expiration of the Respondents' prior agreement on July 16,
1948, the Company continued its old employment practices of giving
preference to the Union's members over nonmembers, and that as
early as August 1948, when Foreman Burnbaum, on instructions from
his superior, attempted to pursue hiring practices in conformity with
the requirements of the amended Act, the Union's business agent,
Pellegrino, threatened him with disciplinary action by the Union.
Under these circumstances, we find, contrary to the Trial Examiner,a
that the Company engaged in the unfair labor practices found herein
beginning at least on July 20, 1948,3 and that the Union engaged in
unfair labor practices since August 1948.
The Remedy
Having found that the Respondents engaged in certain unfair labor
practices, we shall order them to cease and desist therefrom and to take
affirmative action necessary to effectuate the policies of the Act.
We shall also order the Respondent Company, upon application,-
to offer the complainants, employment in available jobs in the delivery
department, without regard to their membership or nonmembership
in the Respondent Union or in any other labor organization, and with-
out prejudice to their seniority or other rights and privileges. We
shall further direct the Respondent Company to notify the complain-
ants in writing that, upon their application, it will offer them employ-
ment in available jobs on such nondiscriminatory basis. In addition,
we shall direct the Respondent Union to notify the Respondent Com-
2 Unlike the Trial Examiner, we find it immaterial whethei or not the nonmembers had
seniority in a contractual sense before the expiration of the Respondents' 1948 agreement.
The fact remains that during the intervening period between the expiration of the 1945
agreement on July 16, 1948, and the execution of the successor agreement on October
25, 1948, preferential hiring practices in favor of the Union's members prevailed in the
Company's delivery depaitinent.
3'l'he date alleged in the complaint as amended at the hearing
4 Application for employment is appiopriate in this case in view of the fact, that the
complainants are part of the Respondent Company's extra labor force which the Company
hires for its delivery department on a day-to-day basis at a so-called "shape-up " Under
this sNstem , applicants for work appear at the plant at designated hiring periods during
the daN and are selected by supeivisois to fill the Company's current needs As a general
rule, the men so employed work only for the specified shift. although theie are instance
when they were hired for longer periods
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 239,
pany in writing that it has no objection to the Company's employment
of the complainants or other persons without regard to their nonmem-
bership in the Union.
We shall further order the Respondent Company 5 and the Re-
spondent Union jointly and severally to make whole the complainants
for any loss of pay they may have suffered as a result of the dis-
crimination against them, in the manner provided in the Intermediate
Report, except that the Company's back-pay liability shall com-
mence July 20, 1948, and the Union's liability shall commence August
1948.8 However, the Union may terminate its liability for further,
accrual of back pay by giving the Company the notice mentioned
above. The Union shall not be liable for any back pay accruing 5
days after such, notice.' The Company may also terminate its lia--
bility for further accrual of back pay by notifying the complainants
that available work will be offered to them without discrimination
and offering them employment on such basis, as provided above.
The General Counsel contends that the Board should extend its
back pay remedy to so-called "other" nonunion persons who shaped
the plant while the Respondents' discriminatory practices were in
effect. As the record does not show that such persons, were unlaw-
fully denied employment at any time, we find that it would not
effectuate the policies of the Act to award back pay to such an amor-
phous group as "others," as the General Counsel requests.'
Finally, we shall order the Company to make available to the,
Board, upon request, payroll and other records to facilitate the check-
ing of the amount of back pay due and to determine the right to,
employments
We expressly reserve the right to modify the back-pay and rein-
statement provisions of our order herein, if made necessary by a
change of conditions in the future, or to make 'such supplenments.
thereto as may hereafter become necessary in order to define or clarify
their application to a specific set of circumstances not now apparent.
6 Like the Trial Examiner , we find no merit in the Company' s contention that back
pay should not be awarded against it because the Union alone was responsible for its
discrimination . Acme Mattress Company, Inc, 91 NLRB 1010 ( to which Chairman
Herzog and Member Reynolds dissented , but by which they now consider themselves bound)
We also agree with the Trial Examiner that , contrary to the Company 's contention, the
complainants ' releases and waivers of back pay do not bar a back-pay of der against the
Company Of course the Company will be entitled to credit for any payments made to
the complainants on account of its liability as determined in this proceeding
6 The Respondents , however, shall not be liable for back pay for any day when, absent
discrimination , the complainants would not have been employed
' Pinkerton's National Detective Agencij, Inc., 90 NLRB 205
'In the absence of any proof to the contrary, ile must assume that it is just as possible
as not that these nonunion poisons were not employed because they had less seniorit ^.
than the union men who sought work at the same time
F. W Woolivoith Company . 90 NLRB 289
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent, Newspaper and Mail Deliverers' Union of New
York and Vicinity, its officers, representatives, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Causing or attempting to cause the Respondent, The Hearst
Consolidated Publications, Inc., its officers, agents, successors, or as-
signs, to discriminate against employees or applicants for employ-
ment, in violation of Section 8 (a) (3) of the Act.
(b) Restraining or coercing employees of the Respondent, The
Hearst 'Consolidated Publications, Inc., its successors or assigns, or
applicants for employment with the said Respondent, in the exer-
cise 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 employment, 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 Hearst Consolidated Publications, Inc., that it has
no objection to the hiring and employment of Anthony Fallara, Louis
Salsano, Jack Tobin, Theodore Graff, Robert Krioski, Richard Ricco,
George Honan, and Rocco Filazzola, or other persons, without regard
to their membership or nonmembership in the Respondent Union or
in any other labor organization, and without prejudice to their sen-
iority or other rights and privileges, except to the extent authorized
by Section 8 (a) (3)' of the Act.
(b) Post at its business offices and meeting halls copies of the notice
attached hereto as Appendix A.10 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 Union, be posted
by it immediately upon receipt thereof and maintained by it for a
period of at least sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Union to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto as Appendix A, for posting, the
10 In the event this Order Is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order" the words "A Decree of
the United States Court of Appeals Enforcing."
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 241
Respondent Company willing, at the Company's Journal-American
plant in New York, New York, in places where notices to delivery
department employees are customarily posted.
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent Union has taken to comply herewith.
II. The Respondent, The Hearst Consolidated Publications, Inc.,
New York, New York, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in the Respondent, Newspaper and
Mail Deliverers' Union of New York and Vicinity, or in any other
labor organization of its employees, by giving- preference for employ-
ment to members of the Respondent Union, or in any other manner
discriminating against its employees or applicants for employment
in regard to their hire or tenure of employment or any term or condi-
tion of their employment, except to the extent permitted by Section
8 (a) (3) of the Act.
(b) Interrogating employees or applicants for employment con-
cerning their union membership.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon application, offer employment in available jobs in its
delivery department which they are qualified to perform to Anthony
Fallara, Louis Salsano, Jack Tobin, Theodore Graff, Robert Krioski,
Richard Ricco, George Honan, and Rocco Filazzola, without discrimi-
nation in regard to their hire or tenure of employment or any term or
condition of employment because of their membership or nonmember-
ship in the Respondent, Newspaper and Mail Deliverers' Union of
New York and Vicinity, or in any other labor organization, and with-
out prejudice to their seniority or other rights and privileges.
(b) Notify the above-named complainants in writing that, upon
'their application, it will offer them employment in available jobs in
its delivery department on a nondiscriminatory basis, as provided
in the remedy section of the Board's decision.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due and the right of
employment under the terms of this Order.
943732-51-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its Journal-American plant at New York, New York,
copies of the notice attached hereto as Appendix BY Copies of such
notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the Company's representative, be
posted by the Company immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to delivery department em-
ployees are customarily posted. Reasonable steps shall be taken by
the Company to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent Company has taken to comply herewith.
III. The Respondents, Newspaper and Mail Deliverers' Union of
New York and Vicinity and The Hearst Consolidated Publications,
Inc., their officers, agents, successors, and assigns, shall jointly and
severally make whole Anthony Fallara, Louis Salsano, Jack Tobin,
Theodore Graff, Robert Krioski, Richard Ricco, George Honan, and
Rocco Filazzola, for any loss of pay they may have suffered as a
result of the discrimination against them, in the manner prescribed
in the remedy section of the Board's decision.
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 JOURNAL-AMERICAN
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause THE HEARST CONSOLI-
DATED PUBLICATIONS, INC. (NEW YORK JOURNAL-AMERICAN), its
officers, agents, successors, or assigns, to discriminate against its
employees or applicants for employment in regard to their hire
or tenure of employment or any term or condition of employ-
ment, in violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of THE HEARST
CONSOLIDATED PUBLICATIONS, INC. (NEW YORK JOURNAL-AMERI-
CAN), its successors or assigns, or applicants for employment
with the said company, in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bar-
11 See footnote 10.
NEWSPAPER . AND MAIL' DELIVERERS ' UNION OF N. Y. AND VICINITY 243
gain 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 protection, 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 Anthony Fallara, Louis Salsano, Jack
Tobin, Theodore Graff, Robert Krioski, Richard Ricco, George
Honan, and Rocco Filazzola , for any loss of pay suffered as a
result of the discrimination against them.
We have no objection to the employment of the above -mentioned
individuals , without discrimination because of their nonmembership
in the union , and without prejudice to their seniority or other rights
and privileges , or to the employment of other individuals on a non-
discriminatory basis . We-have given The Hearst Consolidated Pub-
lications , Inc. notice to this effect.
NEWSPAPER AND MAIL DELIVERERS' UNION OF
NEW YORK AND VICINITY.
By -------------------------------------------
'Dated --------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date hereof and must not be altered, defaced, or covered by any other
material.
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage membership in NEWSPAPER AND MAIL
DELIVERERS' UNION OF NEW YORK AND VICINITY, or in any other
labor organization of our employees, by giving preference for
employment to members of the named union, or in any other
manner discriminating against our employees or applicants for
employment in regard to their hire or tenure of employment or
any term or condition of employment in our delivery department,
except to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT interrogate our employees or applicants for em-
ployment concerning their union membership.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of rights guaranteed
in Section 7 of the Act.
WE WILL offer, upon application, employment in available jobs
in the delivery department which they are qualified to perform to
Anthony Fallara, Louis Salsano, Jack Tobin, Theodore Graff,
Robert Krioski, Richard Ricco, George Honan, and Rocco Filaz-
zola, without discrimination in regard to their hire or tenure of
employment or other term or condition of employment because of
their membership or nonmembership in NEWSPAPER AND MAIL DE-
LIVERERS' UNION OF NEW YORK AND VICINITY, or in any other labor
organization, and without prejudice to their seniority or other
rights and privileges.
WE WILL notify the above-named individuals in writing that,
upon their application, we will offer them such employment on a
nondiscriminatory basis.
WE WILL also make whole the above-mentioned individuals for
any loss of pay suffered as a result of the discrimination against
them.
THE HEARST CONSOLIDATED PUBLICATIONS, INC.,
Employer.
By ------------------------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 consecutive days from the
date hereof and must not be altered, defaced, or covered by any other
material.
Intermediate Report and Recommended Order
Benjamin A. Theeman, Esq., for the General Counsel.
McCauley & Henry, by John B. Siefke2, Esq., and Townley, Updike & Carter,
by J. Howard Carter, Esq., both of New York, N. Y., for the Journal-American
and Hearst Publications.
Samuel Duker, Esq , of New York, N. Y, for the Union.
Irvin Yankwitt, Esq., of New York, N. Y., for the Complainants.
Statement of the Case
Upon original charges filed on January 18, 19, and 20, 1949, by Anthony Fal-
lara, Louis Salsano, Jack Tobin, Theodore Graff, Robert Krioski, Richard Ricco,
Russell Rocks, George Honan, and Rocco Filazzola (the Complainants herein),
and an amended charge filed May 18, 1949, the General Counsel of the National
Labor Relations Board caused the cases to be consolidated and his complaint to
be issued on July 29, 1949.
The Respondents named in the complaint were : The Hearst Consolidated Pub-
lications, Inc., New York, New York, publisher of the New York Journal-Ameri-
can; and Newspaper and Mail Deliveries' Union of New York and Vicinity.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 245
Copies of the complaint, the charges, and the order of consolidation, accompanied
by notice of hearing thereon, were duly served on the Respondents and the
Complainants
The complaint alleged the commission by the Respondents of unfair labor
practices affecting commerce within the meaning of the National Labor Rela-
tions Act, 61 Stat. 136. More specifically, as amended at the hearing, it asserted
that since July 20, 1945, the Respondent Company in violation of Section S (a)
(1) and (3) gave preference in employment to union members over the Com-
plainants because the Complainants were not members of the Union. As to the
Respondent Union the complaint asserted that, in violation of Section S (b) (2)
and 8 (b) (1) (A) the Union demanded and caused Respondent Company to
give such preference.
About August 12, 1949, Respondent Company filed its answer in which it de-
nied having committed the alleged unfair labor practices, and further averred
that the Board had no jurisdiction in the matter for the reason that the issues
were pending in an action then before the New York State courts. The pendency
of an action in the State court does not, however, divest the Board of jurisdic-
tion to decide the subject matter.'
About August 30, 1949, the Respondent Union also filed its answer denying the
commission of unfair labor practices.
Upon due notice a hearing was held at New York, New York, on various dates
from November 22, 1949, to April 13, 1950, inclusive, before the undersigned Trial
Examiner. The General Counsel, both Respondents, and the Complainants were
represented by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. Upon motion of the General Counsel,
the 8 (a) (3) and 8 (b) (2) allegations of the complaint with respect to Russell
Rocks were dismissed on December 12, 1949. Various motions to dismiss other
portions of the complaint made by the Respondents during the course of the hear-
ing were either denied, granted in part, or taken under advisement. Those
motions upon which ruling was reserved are disposed of by the findings herein-
after. At the conclusion of the hearing the parties were afforded opportunity
to argue the issues orally and to file briefs with the Trial Examiner. Briefs have
been received from the General Counsel and from the Company, and considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following
FINDINGS Or FACT
I THE BUSINESS OF TIIE RESPONDENT COMPANY
The Hearst Consolidated Publications, Inc., is a Delaware corporation, a sub-
sidiary of The Hearst Corporation, engaged in the business of newspaper pub-
lishing. It maintains its principal office at 220 South Street, New York, New
York, and also maintains plants and factories at the same address, as well as a
I See Section 10 (a) which provides , in part as follows : "The Board is empowered, as
hereinafter provided , to prevent any person from engaging in any unfair labor practice
(listed in Section 8) affecting commerce . This power shall not be affected by any other
means of adjustment or prevention that has been or may be established by agreement, law,
or otherwise . " For decisions under the prior Act ( 49 Stat. 449 ) see Consolidated
Edison Co . v N. L. R. B., 305 U. S 197 , 223; Amalgamated Workers v Consolidated Edison,
309 U. S 261 , 266 et seq ; N L. R B v Bachelder, 120 F 2d 574 , 576 (C. A 7) ; N. L. R. B.
v. Federal Engineering , 153 F. 2d 233 ( C. A 6) ; United Brick and Clay Workers v. Clay
Company, 158 F. 2d 552 (C. A. 6).
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warehouse. Its employees number 2,500. During the past year Hearst Consoli-
dated has purchased raw materials, supplies, and commodities, consisting of
newsprint, ink, and metals, having an approximate value of $1,000,000. During
the same period the approximate percentage of such raw materials, supplies, and
commodities shipped to its plants from places outside of New York was 90 per-
cent. The principal products of Hearst Consolidated Publications are news-
papers, among them the New York Journal-American. During the past year
Hearst Consolidated sold or shipped newspapers having an approximate value
in excess of $1,000,000. During the same period, the percentage of such sales
or shipments which were made to places outside the State of New York was
approximately 25 percent.
It is conceded for the purpose of this proceeding that the Hearst Consolidated
Publications, Inc., is engaged in interstate commerce. See Hearst Consolidated
Publications, Inc, 10 NLRB 1299; 83 NLRB 41.
IT. TIIE LABOR ORGANIZATION INVOLVED
Newspaper and Mail Deliverers' Union of New York and Vicinity is a labor
organization within the meaning of Section 2 (5) of the Act.
III THE UNFAIR LABOR PRACTICES'
A. Introduction; pre-July 17, 1948
The case involves the validity of hiring practices in the delivery department
of the New York Journal-American and of conduct of the Union relating thereto.
The Journal-American is one of a number of large daily newspapers published
in the New York metropolitan area. Among this group, in addition to the
Journal, are the New York Times, the Herald-Tribune, the Daily News, the
Mirror, the -World- Telegram, the Post, and until its merger with the TVorld-
Telegram in January 1950, the Sun. These, along with several other area news-
papers of financial, language, or local interest, were in 1948, and for sometime
past had been, represented for collective bargaining purposes by the Publishers'
Association of New York City.
In 1948 and for many years prior thereto, the employees in the delivery depart-
ments of the various metropolitan papers were organized into the Newspaper
and Mail Deliverers' Union of New York and Vicinity, an unaffiliated labor
organization and one of the Respondents herein.
The function of the delivery department in these publications is to handle
newspapers coming from the presses and to convey them, afoot or by truck,
to various delivery points, from which they are either directly or ultimately
distributed to readers.
Partially because the size of and demand for newspapers is not constant and
stable statistic each and every day the manpower needs in the delivery depart-
ments of the publishers vary from time to time. Sunday editions, to cite one
example, require a considerably expanded work force, partly on Friday, mainly
on Saturday. A reservoir of labor to fill these peak and temporary demands
is therefore necessary. At the same time there is a minimal expectancy of
2 The following findings are based substantially on uncontroverted testimony or undis-
puted evidence . Where there Is conflict in the testimony , not specifically adverted to, the
findings represent the credited version. In the main , they are based on the testimony of
William Mapel , vice chairman of the Publishers ' Association of New York City ; Harry
Burnbaum , foreman of the Journal -American delivery department ; John Krloski, at times
acting dispatcher at the Journal ; and the Complainants.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 247
employment every day. Whatever the size and circulation, a work force of ascer-
tainable size is required. This results in a number of regular jobs, known as
regular situations, assigned permanently to certain individuals on a 5-day week
basis In addition to regular situation holders, there are two other categories
of delivery department employees : regular substitutes and extras. Regular
substitutes are employees who have completed a "5 x 5"; that is, have worked
in a particular shop 5 days a week for five consecutive weeks ; thereby acquiring
certain promotional, hiring, and other prerogatives. Those who are not regular
situation holders or regular; substitutes are known as extras.'
Regular substitutes and extras constitute the extra labor force from which,
on a day-to-day basis, they are assigned to whatever open jobs may be available.
They are hired from a shape-up. At appropriate hiring periods during the day
they present themselves at the plant, where supervisors make selections from
among them. Regular substitutes have priority in hiring over extras. Vacancies
are first filled from the regular substitutes list according to seniority. When
this list is exhausted, resort is had to the extra list in the same order. In
general, extras are not 5 day a week shapers, though they may be. Some are
regular situation holders who shape other plants on their days off; or persons
regularly employed outside the industry. When union members, these extras
are called "outside card men."
For a number of years the Deliverers' Union has had collective bargaining
contracts with the metropolitan newspapers, including the Journal-Amerwcan,
on a multiple-employer basis; the Publishers' Association acting as the bargain-
ing agent of the contracting papers. The latest of those contracts was executed
on October 25, 1948, effective to October 24, 1950. It was preceded by a con-
tract effective July 17, 1945, which expired on July 16, 1948. Under the 1945
contract, and for some years prior thereto, the Union agreed to furnish com-
petent workmen at regular rates in sufficient number as the publishers required.
In the event the Union failed to furnish such men promptly the publishers were
authorized to employ such men as they were able to obtain, provided that:
if the men so employed are not members of the Union they shall be
employed only so long as the Union does not furnish members of the
Union willing and qualified to take their places ; but any man so employed
shall be allowed to complete his day's work. Nothing herein contained
is to be construed as conferring of power upon any Publisher to fill a regular
situation with anyone not a member of the Union.
Seniority with the particular employer was, contractually and in practice,
the basis for promotional and hiring priority.
Due to the Union's inability to supply adequate manpower, a number of non-
union men found it possible over a period of years to secure fairly regular
employment from the shape-up. The provisions of the contracts, however,
precluded them from acquiring any seniority, subjected them to displacement
at any time by union men, however recent the latter's appearance on the scene,
and denied them any right to hold a regular situation. Substantial distinctions
in employee tenure and status were therefore based purely on the fact of union
3 Occasionally an extra who announces to a foreman his intention to shape that shop
regularly 5 days a week is denominated as a "substitute," and he may be given some
preference because of his steadiness. Foreman Burnbaum at the Journal -American seems
to have had such an arrangement
There are some deviations in definition of those various categories of employment, but
those given here seem to be most generally accepted.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership or nonmembership No contention is made, however, that this
arrangement was in any respect illegal prior to July 17, 1948.
At the same time union membership was difficult to acquire ; generally passing
only by descent and being largely entailed. For some years the membership list
has been frozen and substantially only sons of members and employees in newly
organized shops are eligible to fill any vacancies.
The provisions of the 1945 contract were presumptively legal under the Wagner
Act of 1935; at least no contention is made here that they were illegal. The
Labor-Management Relations Act of 1947, however„ effectively curtailed con-
tinuance of the requirement for hiring preference based on union membership.
Nevertheless, Section 102 of the latter statute preserved, for the duration of the
contract, the legality of existing contractual arrangements valid under Section
8 (3) of the Wagner Act Presumably the 1945 contract due to expire July
17, 1948, was saved by this provision. In any event it is not contended here
that preference accorded to union members was in any way illegal prior to
July 17, 1948. But it is plain that any such preference accorded after the latter
date, other than that inherent in the legitimate application of a "union shop"
clause, would be in violation of the statute ; and here the facts do not disclose
that such a clause was the basis for, or is a defense to, any action taken by either
Respondent.'
Briefly,, the issue here is whether the Union caused, and the Company con-
tinued to accord, illegal preference to union men after the expiration of the
contract in July 1948.
B. The 1948 contract
The 1945 contract expired on July 16, 1948. Negotiations between the Union
and the Association for renewal began several months prior to that date, but,
except for an agreement reached between the negotiators sometime in July which
was rejected by the union membership, the negotiations were unsuccessful
until October. On October 25, 1948, a new 2-year contract was signed.
During the interim period between July 17 and October 25, 1948, the pub-
lishers, including the Company, continued to maintain the old hiring practices,
namely absolute preferment of union men, without change
Section 4 of the new contract provided, in part, as follows.
SENIORITY
4-A. As of the effective (late hereof, all employees, including foremen
and assistant foremen, holding regular situations with each newspaper
signatory hereto shall be arranged in a seniority and priority list in accord-
ance with their length of service with such newspaper.
In like manner, all regular substitutes connected with each particular
newspaper shall be listed in the order of their length of employment
All other persons seeking employment with the paper shall he classified
as extras and shall be listed as such in order of original employment No
man's name shall remain on the list of extras, however, if five weeks have
elapsed since the date of his last employment.
* The 1948 contract, referred to hereinafter, provided that employees should become
members of the Union 30 days after employment, and the execution of such a clause
was authorized by the employees as required by the Act, but those facts are not of
critical significance on the instant issue.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 249
When the manpower needs of the office cannot be filled from regular
employees, from available substitutes, or from extras entitled by former
employment to perform the work the foremen shall select necessary men
from the following categories in order, providing such men are familiar
with the work of the available opening :
First • Former regular situation holders.
Second : Other persons who have worked in the delivery department.
Third: Persons with experience in other delivery departments in the
Metropolitan area.
Fourth : Persons concerning whose competency the foreman has no
reason to doubt, but this discretion by the foreman shall not be exercised
as a means of discriminating against any person because of his membership
or non-membership in the Union.
Following paragraphs of section 4 provided for the filling of regular situa-
tions on the basis of seniority from among, first, regular situation holders, and
second, substitutes ; and for layoffs among regular situation holders in reverse
order of seniority standing.
Though this section does not explicitly state that substitutes and extras
were to be hired from the shape in the order of their standing on the seniority
,lists, this was the contemplation of the section and the parties, and it was so
construed.
C. The negotiations for the 1948 contract
During the early part of the negotiations the union representatives took the
position that hiring priority among substitutes and extras should be on the basis
of seniority in the industry, rather than on a plant basis, and that the publishers
should notify the Union of any manpower needs. These provisions were not,
however, adopted. The Union likewise wished the contract worded in such
fashion as to insure preference to union members wherever possible. As to this
the Publishers' Association took the position that hiring practices had to con-
form to the Taft-Hartley Act, but that the Association was willing to accord the
Union every permissible benefit under the Act. The prior contract had con-
sistently referred to "union members" in defining its application. The sub-
stitution of the word "employees" for "union members" in the 1948 `contract, at
the instance of the Association, caused concern for a time to the union representa-
tives. As the negotiations progressed and the limitations imposed by the law be-
came clearer the position of the Union's negotiators with respect to preferment of
union men, at first strongly stated, moderated. With the result that by mid-
July 1948 the negotiating representatives came to agreement on the terms of the
contract When the agreement was submitted to the union executive board and
the membership, however, it was rejected. The evident and substantial reason
for the rejection was the shift in emphasis and rights inherent in the substitu-
tion of the word "employees" for the words "union members" in the beneficial
sections of the contract. In sum, the objection was to any substantial reduction
of the exclusive preference previously accorded union members. In addition,
the Union insisted on the right to discipline foremen, a demand which the As-
sociation resisted. Further negotiating sessions were begun late in July 1948,
this time with the Union's executive council in attendance, who brought in
Professor Milton Handler for advice. Handler assured the apparently sus-
picious executive council that there was no "shenanigan" and that the agree-
ment was "a good contract and the best one they could hope to get under the
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taft-Hartley Act." ` Nevertheless, negotiations continued and it was not until
October that the contract was finally ratified by the Union.
D. October 1948 to November 1949; the publishers' attempts to establish seniority
lists
As has been noted, section 4-A of the 1948, contract contemplated the establish-
ment of hiring lists of extra men "in order of original employment" by the par-
ticular publisher, with provision for dropping the name of anyone who had not
received employment during the past 5 weeks. It is thus seen that the 1948
contract, as had the prior ones, despite the industry-wide bargaining pattern,
incorporated a system of seniority by shop, and net industry, employment.
Moreover, seniority and precedence on the lists was to be determined, according
to the contract, by the date of "employment." The materiality of these factors
will be apparent from later discussion.
On October 26, 1948, therefore, the Association and the Union met to discuss
the compilation of the hiring lists. The categories of regular situation holders
and regular substitutes appeared to present no substantial problem. Difficulties
arose, however, regarding the composition of the extra list. Since the contract
provided that nonemployment over a 5-week period resulted in elimination from
the list, the Association suggested, and there was apparent agreement at the
October 26 meeting, that the initial list should contain the names of all persons
who had worked in the 5-week period preceding October 25, 1948, the effective
date of the contract.
On the following day, however, basic disagreement arose which ultimately
led to the issuance of the present complaint and the unsettlement to the present
day of hiring conditions in the delivery departments of all the major New York
newspapers. On that day, October 27, 1948, the Union notified the Association
that it disapproved the method of extra listing determined upon at the October
26 meeting. The reason for this disapproval was that "the listing in prospect
would result in the inclusion on the extra list of a significant number of non-
union men."
1. October 29, 1948-The refusal to work at the Herald-Tribune
0
Within a day or two after the execution of the October 1948 contract, the
Herald-Tribune posted hiring lists in accordance with section 4-A of the contract.
On Wednesday, October 27, 1948, Leon Braunstein, a union business agent, ob-
jected to the presence of a number of nonunion men on these lists. Braunstein
further said that nonunion men could have no seniority rights antedating July
17, 1944. In addition, Braunstein asked that several recently hired union mem-
bers be given positions on the extra list higher than their seniority entitled
them. Braunstein further said that the Tribune was the only paper which had
proceeded to post lists, that the Tribune's work force was "disturbed over the
introduction of the lists," and that he "could not be around the Tribune all night
every night to calm the men down." Braunstein concluded with the statement
that "somebody was going to sue" the Tribune and that the Tribune "to keep
everything in the family . . . might as well avoid being sued by union men."
Nothing more untoward occurred at the Herald-Tribune on that or the follow-
ing night. Friday and Saturday are the heavy nights at the Tribune, in prepara-
6 The quotations are from the testimony of William Mapel, vice chairman of the
Publishers' Association.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY- 251
tion for the Sunday edition. On Friday night, October 29, 1948, eight regular
week end shapers, all union men, refused to go to work when called from the
shape line, thus delaying operations. The reason for the refusal was that non-
union men were higher on the hiring lists than they. Spokesman for the men
was Frank Cancillero, chapel chairman.' The Herald-Tribune finally resolved
the dilemma by withdrawing the hiring lists for "further study," and hiring was
then resumed on the old basis of union preference. During the discussion, it was
indicated that unless the lists were withdrawn, the eight men would also re-
fuse to work on Saturday night.
No other newspaper attempted to follow the Tribune's example and post hiring
lists. On the following Monday, protracted negotiations began between the
Publishers' Association and the Union to solve the problem.'
2. The November 1, 1948-meeting
A meeting was held on November 1, at which the union attorney, Samuel
Duker, suggested that a proper interpretation of the contract required the list-
ing on the original extra list, in the order of original employment, of all persons
who had ever worked in the delivery departments of the publishers ; and that
all who did not work in the 5-week period from October 25, 1948, should then
be eliminated. This suggestion became known as the "Duker formula" and the
"Back to Methuselah" theory. The Union's position on this suggestion was thus
stated by Vice-Chairman Mapel of the Publishers' Association in his testimony :
[The] point being, and not being concealed, that it would be a very simple
thing to have a list of employees made up or created to include a great
many men, a great many union men who perhaps had worked only once, or
maybe only a dozen times, or maybe a number of years, but many, many
years ago, it being the position of the Union that by taking advantage of
the language of the contract in that respect, and by listing men according
to the date of their original employment, obviously you would get a great
mass of union men at the top of the list and any nonunion men, who might
have worked and who might have crept into the so-called industry in the
last few years would be well down on the list, since the hiring would be
done from the top of the list to the bottom, then and I quote [the Union] :
"The problem of the non-union man would be solved."
The compilation of such a list going back many years presented a formidable
problem.
The position of the Union at this November 1 meeting, as related by Mapel,
was that "we are going to take every step we can to have union men go in ahead
of non-union men."
3. November 2, 1948
At another meeting on the following day it was ascertained that the effect
on union men of the proposed new hiring order was greater than had at first
been supposed. Thus it was now realized that outside card men who regularly
shaped for employment on certain nights were subject to "bumping" by non-
union men of senior shop standing. This situation caused some concern to the
Tribune, for example, which was apprehensive that it might lose some regular
Saturday night extra shapers. In addition it was also realized that some non-
6 The equivalent of shop steward.
* The findings as to the events at the Herald-Tribune are based on the testimony of
John Bogart, labor relations executive at the Tribune.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union men were sufficiently senior to compete for regular situations It was
the extra list, however, which provided the major problem. The publishers
suggested a system of daily hiring lists based substantially on regularity of
employment on each particular day, but this got nowhere when it became ap-
parent that such a system would also include a significant number of nonunion
men. At this point, Pellegrino, union business agent, stated the Union's posi-
tion to be that no nonunion men could go to work before union men under the
contract, for the reason that nonunion men had no seniority antedating the
expiration date of the prior contract. To this the publishers demurred, con-
currently suggesting that Professor Paul P. Hays, impartial chairman under
the contract, be called in informally. A meeting with Chairman Hays present
was arranged for November 15, 1948.8
4. November 15. 19-18
At the meeting on this day the suggestion was made , either by Chairman
Hays or by Samuel Duker, union counsel, that industry-wide, rather than plant
seniority , might be a proper criterion for hiring priority , but apparently the
proposal was not seriously discussed . Further suggestions , designed to meet
union objections , were made with respect to the compilation of daily hiring
lists, but the Union declined to take a definite position without further ex-
ploration . As Mapel quoted the Union , its representatives said "we are not
interested in this thing as an academic matter We want to know what will
happen to our men. We want to see these lists." As a result the Herald-Tribune
was designated to compile a trial list based on its records in order that the
conferees might have something concrete to visualize
5. November 17, 1948
At a meeting on November 17 the Tribune presented the test list, on which
the nonunion men were identified. The Union objected to the list because of
the presence of high ranking nonunion men and reiterated its position that
they could have no seniority antedating July 17, 1948. After study, the Union
further announced that it could not commit itself until a similar test list was
made up at the Daily News, the largest employer of union men. The publishers
objected to any further delay, pointing out that unfair labor practice charges
had been filed by nonunion men against the Tribune. After some further dis-
cussion, Publishers' Association Vice-Chairman Mapel said that he was going
to lay the entire matter before Charles Douds, the Board's Regional Director,
invited the union representatives to join him in so doing, and on November 19,
1948, union and publisher representatives met with Regional Office officials.
16. January 1949-the Union changes its leadership ; the entrance of the
Adjustment Board
In late November or early December 1948, union officers were elected. The
incumbents were largely swept out of office. The new officers, however, could
$ Though , as is hereinafter found , the contention is valid as to the situation before
October 25, 1948 , I see no merit in the Union 's assertion that after that date the non-
union men had no seniority antedating July 17 , 1948 The 1948 contract ( section 4-A)
provided that "seniority and priority " should be on the basis of "length oh service,"
"length of employment ," and "order of original employment." [ Emphasis supplied.]
Hence, whatever the validity of the union position up to October 25, 1948, the contract of
that day made former lack of status immaterial so far as hiring priority thereafter was
concerned.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 253
not act until January 1, 1949 As a result no meetings were held in December.
In the interim the publishers, as Mapel put it, merely "rocked along." With
the induction of the new officers on January 1, 1949, the Union's position be-
came more militant. Among the new union officers were Joseph Simons, presi-
dent, and William Walsh and Harry Waltzer, business agents
On January 14, 1949, the publishers and the new officers met for the first
time, with Chairman Hays present. The Union announced that all the plans
previously proposed were unworkable, but when asked for suggestions stated
that it had none to offer. At this meeting it became evident that the Union
had determined to make a firm stand for the preferment of union men. Union
President Simons made the following statements, not necessarily consecutively,
to the publishers : "The Taft-Hartley Act, in my humble opinion, does not apply
whatsoever . . . Until the law is interpreted, nobody knows ; if you need
extras the Union will supply them . . . I serve notice in the meantime union
men are going to work before non-union men . . . you have got to pay somebody,.
so you might as well pay union men . . . I am not interested in seniority.
This contract was made for members of this union . . . If non-union men have,,
a quarrel, let them go to the government . . . you do the hiring. You do the
violating if there is any violating."
The contract provided machinery, known as the Adjustment Board, for the
determination of disputes not resolvable by negotiation The board consisted
of two representatives of each party. If the dispute was not resolved there
the impartial chairman was added. Decisions of the five-man board were final,
and binding At the January 14, 1949, meeting publishers' Vice-Chairman
Mapel invited the Union to join in submitting the dispute to the Adjustment
Board. Not receiving an affirmative answer the publishers invoked the ad-
justment machinery unilaterally.
Several Adjustment Board meetings were held in the latter part of January
1949 along with a conference with officials of the Regional Office During these
sessions union representatives told the publishers several times, in substance,
that unless union men were hired, the papers were "not going to be delivered,"
At the insistence of the Union the publishers supplied the Union with lists of
regular situation holders, regular substitutes, and of all extras who had worked
in the 5-week period from mid-December 1948 to late January 1949; with the
nonunion men designated. Nevertheless when the parties met again in late
February, the union representatives indicated that they had not studied the lists
much, if at all. At this meeting the Union made a number of proposals, in-
cluding one to the effect that the publishers secure all manpower through the
Union Meetings continued through the month of March in an effort to arrive
as a mutually satisfactory hiring procedure, without success.
Finally, in mid-March, apparently convinced that there was no prospect of
bilateral solution, the publishers decided to set up hiring lists unilaterally,
listing employees on the basis of seniority without regard to union affiliation,
and to put them into operation.
7. The May 1949 strikes
The compilation of these lists was completed by May 11, 1949, and on May
16 they were posted in the various newspapers. In several shops, notably the
Journal-American and the Tribune, they were removed;,at the Tribune admit-
tedly by Business Agent Walsh
On May 17, 1949, the publishers began to hire according to the lists. This
action evoked strikes and threats of strikes by union officials at various papers-
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Business Agent Walsh made repeated threats of strikes at the Herald-Tribune
if that paper attempted to hire from the lists, saying that he would "close down
the plant," and on May 19 the Union there engaged in a slowdown. On the
same day the Union struck the Journal-American to compel the hiring of union
men before nonunion , without regard to their standing on the hiring lists. This
stoppage, more fully described hereinafter, lasted some 12 minutes and was
terminated when the Journal-American capitulated and put to work six union
members of junior seniority whom Union President Simons demanded be hired?
At the request of the publishers, Impartial Chairman Hays had been standing
by since the night of May 18 to meet anticipated trouble. On May 19, the pub-
lishers invoked the five-man Adjustment Board. After discussion of the situa-
tion a majority of that board (Chairman Hays, Union President Simons, and
Business Agent Walzer) decided, in substance, to reinterpret section 4-A of the
contract. Chairman Hays announced the decision to the parties, saying that
the board would issue a new and temporary hiring formula on May 23, but
added that until it was prepared the existing hiring lists would continue to be
effective. The announcement that the lists would remain in effect in the interim
period evoked a storm of protest from the union representatives, who declared
that the publishers' unilateral action in posting the lists had created "chaos"
in the industry. When Business Agent Walzer attempted to calm Business Agent
Walsh, the latter told Walzer that when the men "walked out" Walzer would
"have to be responsible for it." Union President Simons announced that he
was now dissociating himself from the award. He admitted having ordered
the stoppage at the Journal-American that day and threatened another strike
if nonunion men were put to work there. Business Agent Walsh said, referring
to the strike at the Journal that "If I violate [the no-strike clause in the con-
tract] it won't be for any 8 [sic] minutes It will be for all night." With
reference to the Daily News, Walsh said : "I don't know how long I can hold out.
It is coming. The first night I get three drinks inside of me it is coming."
Union Vice-President Walters declared that the decision nullified the contract, a
position which Union Attorney Duker observed was erroneous Simons said that
he would not be responsible for what happened that night and the conference
terminated, as Mapel put it, in a "chaotic state "
8. The May 23 award-the abandonment of the hiring lists
On May 23, 1949, the Adjustment Board, with the publisher members dis-
senting, handed down what became known as the interim award. This award
revoked the outstanding hiring lists, and in effect changed the contract criteria
for hiring preference from length of plant service substantially to length of em-
ployment in the industry. As described by the parties, it substituted industry
seniority for plant seniority as the basis for hiring order. In addition it gave
the foremen in each plant final authority to determine qualifications for em-
ployment. Foremen were members of the Union and covered by the bargaining
contract.
The text of the majority award is as follows :
1. The lists now posted by the various publishers shall not be used as the
basis for hiring and are to be withdrawn immediately.
9 There is also evidence of union threats to strike and to take other action at the Times
and the Daily News in the period between May 16 and May 19. Since the only evidence
of this is hearsay testimony , however, no findings are made on it
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 255
2. Effective immediately the foreman of each delivery room in hiring
extra men shall give preference to those applicants for employment who
have the most complete claim to, and are best qualified for the work, on
the basis of length of service , and regularity and continuity of employment
in the industry . In administering this clause the foremen shall use their
best efforts to observe the spirit and letter of this provision . Where a dis-
pute arises the foreman's determination shall prevail, but any case in which
the foreman willingly and knowingly discriminates may be pressed as a
grievance and any applicant against whom such discrimination in hiring
was exercised shall be entitled to payment for work clone . Perseverance in
discriminatory hiring after notice may also be made the basis for imposition
of a penalty.
3 The Publishers and the Union shall immediately undertake in joint
conferences to work out hiring lists which will regularize the principles set
forth in the foregoing paragraph.
It was recognized by all that this formula would result in priority for many
union members , but as Chairman Hays observed in an opinion accompanying
the award , that consequence was a "fortuitous result of the existence of a per-
fectly legal closed shop," and not illegal.
Despite the preferred position accorded many union members under the interim
award the Union continued to oppose any hiring of nonunion men before union
members. On June 1, 1949 , when the foreman at the Herald-Tribune, pursuant
to the authority granted him in the interim award, adjudged that certain re-
cently employed union members were subordinate in seniority to some non-
union shapers , Walsh called a strike and the union members walked out. The
Tribune then put the union members to work under protest.
9 The point system ; its abandonment
in the meantime the Adjustment Board proceeded to draft a final award to
replace the interim award; a task finally completed and announced on June
30. 1949. This award spelled out a detailed and complicated procedure for the
maintenance of hiring lists In essence it continued the industry-wide seniority
concept of the interim award but provided for ranking on the extra list by a
system of numerical ratings, which became known as the point system Under
this system employees were awarded points of differing values for service in
the shop, in the industry, or substantially equivalent employment 10 In addition
the award lumped regular substitutes and extras on the extra employment
list The union members of the Adjustment Board dissented from this award.
Following the issuance of the June 30 award Chairman Hays resigned and
was succeeded by Chairman Feinberg. The latter proceeded to set up lists in
accordance with the award. These were finally completed and went into effect
on September 14, 1949, over protests by the Union that they contained errors.
The Union then filed an action in the New York courts to set aside the award;
in which it ultimately succeeded. The ground asserted for the court action
was that the Adjustment Board has exceeded its authority in lumping regular
substitutes and extras on the same hiring list. The lists remained in use only
about 5 days They weie set aside because of union objections under the fol-
lowing circumstances
00'I'hus, for example, service in the particular shop after April 1, 1949, was given three
times the value of service prior to March 31, 1946 ; and service in a shop twice the value
there of service in other shops.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 19, 1949, the publishers and the Union net to discuss the prob-
lems raised by the Union ' s count action and its pi otests against the use of the
point lists . The Union raised three objections : ( 1) That the lists improperly
placed regular substitutes and extras on the same hiring lists ; ( 2) that there
were errors in computation , and (3 ) that provision must be made for giving
employment to employees , of The Interborough News Company , which had ceased
business . Impartial Chairman Feinberg pointed out that there was provision
for ironing out individual inequity or error
,Union President Simons then threatened to strike the papei s that night if the
lists were used . As Mapel testified , Simons and Business Agent Walsh made
the following statements , among others.
SiioNs If the publishers do not get into line, we will take the law into
our own hands. I aim going to put union men on tonight.
Everything aunt going to be all right We want our pound of flesh
before the non-union men. It it has got to come to a tight, we will fight,
ge got a good army ! Thei e aint going to he any union men turned away
tonight, and I am giving the orders.
* * * * * *
WALSH That is all I want to hear Joe You give the order tonight, .1
will walk the men tonight
SIMONS. You have my order If a paper wants a mail , the paper should
call the union: 1 am telling Walsh ui0front of all of you that union men
go to work tonight . . . oil better be prepared tonight.
* * * * * *
If you think you are going to work tonight. you got rocks in your head.
If the union is in wrong with the Taft-Hartley Act let Washington get
us on the ball !
I am putting you on notice that those bundles won't have feet on them
tonight, and that is that.
Chairman Feinberg-said that any individual who claimed prejudice because
of his standing on the list would be interviewed and any injustice rectified.
He further warned the union officials that lie would enforce the contract's no-
strike clause to the hilt Nevertheless Business Agent Walsh said, illapel
testified, that be was "going to the shops tonight to see that no non-union men
went to work, if a union man did not have work," "No union man will go away
without a job "
Faced with a threat of shutdown the publishers suggested that the Union
file a formal grievance and that the Adjustment Board set aside the point
system and return to the interim award pending further study by Chairman
Feinberg This was done, and on the same evening the Adjustment Board set
aside the June 30 award and reinstated the interim award Individual grievers
were thereafter interviewed under Chairman Feinbeig's supervision but there
is no evidenc of any further action with respect to the point system award
On November 10, 1949, the Union struck the Daily Neics for 1 hour and 28
minutes to compel the pieferential hiring of certain union members. The Daily
News filed a grievance with the Adjustment Board and asked compensatory and
punitive damages for violation of the no-strike clause of the contract. Damages
were ultimately awarded by the board in the amount of $1,500.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 257
E Bt ents at the Journal-Anierican
1. The 8 (b) (2)
As the foregoing facts indicate, while the Union was dealing with Publishers'
Association with respect to all the newspapers collectively, it was also dealing
with and taking action with respect to individual newspapers. The strikes or
slowdowns at the herald-Ti ibune on October 29, 194S, May 19, and June 1, 1949,
and at the Daily News on November 10, 1949, which followed the papers'
attempts to hire men without reference to union membership have been adverted
to. This action, coupled with the strike threats already related, no doubt was
calculated to, and in any event had the necessary effect, of serving notice on all
Association papers that any attempt to hire without reference to union member-
ship , would be met by the Union with retaliatory action. Through the Pub-
lisher's Association, as well as through individual communication, union action
with respect to one paper was promptly transmitted to all others. -
Events at the Journal-American, and union action there, were largely in keep-
ing with the broader pattern described above.
At the Journal the man responsible for hiring in the delivery department was
Foreman Harry Burnbaum. As has been noted, the award of May 23, 1949„
placed complete authority in the hiring foremen to determine qualifications, but
on a nondiscriminatory basis. Foremen in the various shops were all members
of the Union. The contract contained a clause in which the Union agreed not
to discipline foremen for "carrying out the instructions of the Publisher . . . in
accordance with this Agreement " Burnbaum was a member of the Union
As early as August 1948 the Journal sought to change its hiring practices to
conform to its interpretation of the Taft-Hartley Act. At that time Journal
Circulation Manager Smith issued instructions to Foreman Burnbaum to hire
men on the basis of length of employment with the Journal. When Burnbaum
notified Union Business Agent Pellegrino of this decision, however, Pellegrino
told Burnbaum that he "couldn't operate that way," and that union men would
have to be preferred When Burnbaum persisted, Pellegrino further said, "If you
do put non-union men out [sic] before union men, I will be compelled to issue a
union subpoena" (Summoning of a union member before the union executive
board to answer charges of violation of union rules ) On two other occasions
in August and September 1948, Pellegrino repeated these threats to Burnbaum.
As a result Burnbaum, despite contrary instructions from Circulation Manager
Smith, continued with occasional aberrations, to hire union before nonunion men
During the remainder of 1948 Union Business Agent Braunstein made similar
threats to Burnbaum. In November and December 1948, however, Pellegrino
permitted Burnbaum more leeway, and as a result the nonunion men were able
to get substantial employment, even up to mid-January 1949"
In January 1949, however, the new union officers were inducted Among other
changes, William Walsh and Harry Waltzer replaced Pellegrino and Braun-
stein as business agents. As has been noted, with the advent of the new officers,
the Union became more militant and aggressive on the subject of preferment
of union men . In early 1949 the closing of The Interborough News Company
and the newspaper Star threw more union members into the labor market, who
began to shape the Journal, as well as other papers.
,o Another reason that nonunion men were able to secure employment in late 1948
was that in November the Company forbade further premium work. Under the contract
work over 5 days a week was compensated at higher rates
943732-51-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 11, 1949, Business Agent Waltzer told Foreman Burnbaum that
nonunion men who were then at work would have to be replaced with union
members, and when Burnbaum demurred , Waltzer and Chapel Chairman Las-
panuso threatened him with a subpoena . Burnbaum , upon instructions from
Circulation Manager Smith , did not comply with the demand . On the following
day Waltzer reiterated his threat and specifically demanded the removal of
Anthony Fallara and George Honan, two nonunion complainants in this action,
who were at that time working on routes on indefinite assignment . This time
Burnbaum complied, and Fallara and Honan were replaced by union members of
lesser seniority . On that occasion , and again later in January, Waltzer and
Laspanuso also told Burnbaum that they would supply all the men he needed,
As a consequence of these conversations Burnbaum virtually ceased hiring
nonunion men except when union men were not available , and proceeded to hire
instead the outside card men who began to appear at the Journal in January
1949. The nonunion complainants , told by Burnbaum that he was compelled
to hire the union men first, then filed unfair labor practice charges with the
National Labor Relations Board.
Prior to 1949 there had been a daily shape about 6 p. m. at which men were
booked to work the midnight shift. Nonunion men were sometimes hired at
that shape . In early 1949 , February or later, Business Agent Walsh demanded
that the 6 p. in. booking be discontinued in order that union men , who could
not or did not wish to appear at the 6 p. in. shape, could be hired at midnight.
Burnbaum protested , both on the ground of illegality and because the change
would impede his operations . Walsh's reply was'that union men had to be
hired at all times prior to nonunion , else Burnbaum would receive a subpoena.
Burnbaum then discontinued the 6 p in. booking.12
Despite these pressures, Burnbaum sought from time to time to hire non-
union men in proper seniority order. Thus in late February 1949 he so instructed
the garage dispatcher, âIullaney. Waltzer immediately threatened to stop the
work, and the instruction was revoked. In late March and April 1949 Burnbaum
made similar attempts . Each time Waltzer reiterated his threats of a work
stoppage and the attempt was abandoned.
On May 16, 1949, pursuant to the publishers' unilateral decision to begin hiring
from lists, Foreman Burnbaum posted the Journal's hiring lists in which
employees were ranked in the order of seniority and without reference to union
membership . Contemporaneously Circulation Manager Smith instructed Burn-
baum to hire according to the lists beginning May 18, even if a strike resulted.
Burnbaum notified Chapel Chairman Laspanuso and Business Agent Waltzer
of these instructions . Waltzer's reply was "If you go through with this I am
going to pull the shop."
On the morning of May 18 Garage Dispatcher Mullaney notified Foreman
Burnbaum that Waltzer would not let him hire nonunion men at the garage
shape. Burnbaum thereupon went to the garage himself and hired employees
from the shape line in accordance with their standing on the list. Among those
selected were six of the nonunion complainants. In the afternoon Union Presi-
dent Simons, Waltzer , and Chapel Chairman Laspanuso called on Circulation
Manager Smith . As they emerged from their conference , Simons told Burn-
baum that he (Simons) "didn't get anywhere" with Smith. Simons then
turned to Laspanuso and directed him to give a subpoena to Burnbaum for hiring
12 Later in the year the 6 p in shape was resumed , with the qualification that any non-
union men booked at that time were subject to being "bumped" if a union member appeared
at midnight.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 259
nonunion men before union members. When Burnbaum protested that the
contract required him to follow management orders, Simons replied that Burn-
baum "had no business carrying out those instructions."
Later the same afternoon Business Agent Walsh saw Burnbaum and told
him : "Harry, don't apply that [Taft-Hartley] law tonight . . . I don't want
to pull your shop but if you do the same thing as you did [this] morning I am
going to pull it."
On the following day, May 19, 1949, Foreman Burnbaum again instructed
Dispatcher Mullaney to hire according to the posted lists. Again Mullaney
reported from the shape that Business Agent Waltzer was preventing him
from doing it. On instructions from Circulation Manager Smith, Burnbaum
went to the garage and made the selections himself. In the process six non-
union complainants were hired while six union members junior in seniority
"walked" (were not hired). About an hour later President Simons appeared
at the plant and ordered the men to stop working. Operations in the delivery
room came to a halt and the presses had to be shut down. Simons informed
Circulation Manager Smith that work would not be resumed until the six union
men were hired. After 12 to 15 minutes Smith capitulated and work was
resumed.
On the following day, May 20, Smith instructed Burnbaum to return to the
practice of hiring union members before nonunion men, or they would have
another strike. The hiring lists were then removed and abandoned.
On May 21, 1949, Burnbaum was notified to appear before the Union 's execu-
tive council on June 7 to answer charges of violation of the union constitution.
At that hearing Chapel Chairman Laspanuso charged that Burnbaum had hired
nonunion before union men on 19 different occasions. The council adjudged
Burnbaum guilty and fined him $100. On appeal by Burnbaum to the general
body the fine was sustained. Upon the filing of a grievance by the Publishers'
Association; however, the Adjustment Board ordered the fine set aside on the
ground that the contract forbade discipline of foremen for carrying out manage-
ment's express orders.
On May 23, 1949, the Adjustment Board's interim award regarding industry-
wide seniority became effective. Circulation Manager Smith instructed Burn-
baum to follow the award so far as possible.
The exact extent to which Burnbaum followed these instructions is not
altogether clear from Burnbaum's testimony. His testimony is consistent and
undenied, however, that he has uniformly, since May 23, 1949, continued to hire
certain union men in preference to nonunion men entitled by both shop and
industry seniority standards to priority in hiring." It is further consistent
and not substantially denied in that he followed this preferment solely because
of union demands. While Chapel Chairman Laspanuso, the Union's only wit-
ness, denied that he ever told Burnbaum which men to hire, the other facts
recited above are not credibly disputed. Laspanuso further testified that there
were differences between the Union and Burnbaum as to seniority standing of
" Burnbaum first testified that he used shop seniority as the hiring standard after
May 23 ; later that he used the interim award and generally tried-though he was not
always permitted by the Union to-follow it. The uniform testimony of the Complain-
ants and of John Krioski, at times acting dispatcher, was that they had never heard of
industry seniority being used as a hiring standard at the Journal; and that the standard
was always shop seniority and-with the exception of a few specific days, such as May
18 and 19 , 1949- "union men before nonunion men " In view of Burnbaum 's consistent
testunonv that lie continuously preferred certain named union men solely on the basis
of their union membership, the actual fact need not be determined.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
various individuals and as to the proper interpretation of awards and the con--
tract. Such bona fide differences undoubtedly did exist, but it is clear from the-
evidence that they were not the substantial reason for the Union's actions. The-
contract and the various awards provided a complete remedy for erroneous
judgments It is plain, and it is found. that the basis for the Union's actions-
was its insistence that union members be accorded complete and absolute prefer--
ence in hiring
2 The 8 (a) (3)
While the Company contends in its beef that "there is ample substantial
credible evidence to support the allegations of unfair labor piactices by the
union respondent," it contests the allegations of unfair labor practices con-
cerning itself.
Burnbauni's testimony, however, is ieplete with instances of preference of
union members over nonmembers on the sole basis of union inembei ship. Thus,
his testimony establishes the following
Beginning in August, he on "numerous occasions" in 1948 hired union men_
before nonunion because of threats by Chapel Chaim man Pellegrino and Business
Agent Braunstein, a practice which, with some ielaxation by the Union, be-
followed throughout 1948. After the new officers were inducted in January
1949, however, and the problem raised by unemployment among the Interborough
News and Star men became pressing. the Union adopted a stricter attitude.
Burnbaum then hired outside card men in preference to nonunion men. In
fact, after January 11, 1949, he "discontinued to hire non-union nien, only
where I had no more union men, the non-union men, went to work "
On January 12, 1949, Burnbaum removed Complainants Fallara and Honan
from their jobs and replaced them with union members ; " at the same time
telling Honan and Fallara that because of union pressure he could not hire
then) before union men
During the week beginning January 16, 1949, the Complainants secured little
employment because, Buinbauin testified, "Due to union threats I was not able
to employ them before card men " In February 1949 Burnbaum discontinued
the 6 p. in shape in order that union men would not have to shape at that time
for midnight assignments. Late in the same month and again in late March
1949 when Waltzer threatened a strike Burnbauni rescinded orders given to,
Dispatcher Mullaney to hire on a nondiscriminatory basis On May 19, 1949,
Circulation Manager Smith ordered six union members to be hired in accordance
with Union Piesident Simons' conditions for terminating the strike of that
day On May 20 Smith ordered, and Burnhaum resumed, the practice of hiring
union men first In fact, since May 24. 1949. union men, Burnbauni testified,
have uniformly been hired before nonunion men."
14 In April 1949 Complainant Ricco was somewhat similarly "Bumped " by Russnok, a-
union man
36 Thus, at one point , Burnhaum testified as follows.
Q Now on and after May 24, Mr Buinbaum , what are your hiring practices until'
the present time'
A I am compelled to put union men before non-union
Q And you hire according to a shop seniority list?
A Ido
Q Does this shop seniority list contain the names of the non-union men ahead of'
the union men'
A They do but they cannot carry it out in full The non-union men go to work_
after the union
-NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 261
On May 25, 1949, Burnbaum testified, Glottstein, a union member junior to the
'Complainants by both shop and industry standards, was hired in preference to
-the Compainants "because of union pressure . . by [Business Agent] Walsh."
In preferring Glottstein and Loesch (another union member) over the C'om-
_plainants he knew that he was violating the interim award16 He protested to
Chapel Chairman Laspanuso that the latter was forcing him to discriminate and
he constantly discriminated with respect to Loesch and Glottstein because of the
threat of work stoppagesn He also instructed Dispatcher Mullaney in late
May 1949 to discriminate in favor of Loesch and Glottstein, and Mullaney did so
Burnbaum's testimony that he discriminated against nonunion men is corrob-
orated by other evidence On several occasions since late December 1949
.John Krioski, has acted as dispatcher on Saturdays. Krioski testified that uni-
formly since July 17, 1948, the practice of the Company has been to hire union
9 men before nonunion men, without regard to seniority standing ; resulting in
junior union men working, while senior nonunion men walked; and further that
-on the occasions when lie acted as dispatcher he followed that practice.
In addition all the Complainants but Salsano were witnesses. All testified
-that they shaped regularly from July 1948 to November 19491 and that con-
sistently throughout that period, with a few exceptions, the invariable practice
was to hire them after all available union men had been hired, and that junior
union men were thus often hired while the Complainants walked. Ably cross-
.examined by company counsel, they were usually unable to state the exact oc-
.currences on specific days or even weeks Their testimony to the effect that
they shaped regularly and were generally subordinated to union men, is however,
uncontradicted and supported by that of Burnbaum. Virtually all, moreover,
-were without contradiction, able to name specific dates or instances when union
Footnote 15-Continued
Q And that was the practice and that continues through until today'1
A. Yes
At a later point Burnbaum corrected the above testimony that lie used shop senioiity as a
hiring standard after the issuance of the interim m ard, but the testimony as to union
Treference is not affected thereby.
16 Examination by counsel for Complainants
Q As a matter of fact as a general policy, wherever you attempt or have attempted
in this same period to put a non-union man to work, whet e there was a union man
available, these was always pressure brought to bear upon you by the union, is that
correct1
A Yes, sir
Q. And in many instances you were obliged not to put a non-union man to work,
and you were obliged to put the union man to work because of this pressure ; is that
a fact'1
A Yes, sir
17 Cross-examination by union counsel on February 28, 1950, the last day Burnbaum
testified
A. As far as Loesch and Glottsteinstein [are concerned] that is a standing threat,
and I will not have another stoppage in my shop, and I am not taking any chances.
Q When you say that is a standing threat-
A And I employ them there and discriminate constantly because of the constant
[and daily] threat.
s s • e • s •
There had been a strike on May 19, and when they both [Business agents Walsh
and Waltzer] warned nie, I was not taking any more chances
s s s s a a
Q Was there any day after May 19, sir, when you did not discriminate in favor
of Glottstein and Leosch'i
A Be n miracle when I did not discriminate with them
18 Filazolla shaped only evenings; the others both clay and evening. Tobin was injured
in April 1949 and did not shape thereafter.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men of lesser seniority bumped them or were preferred in hiring. Work records
of the Company showing with substantial consistency greater incidence of em-
ployment for junior union men than for the Complainants from late January
1949 to November 1949 also tend to support the conclusion of preferential union
hiring. In November 1949, convinced that their chances of securing employment
were poor, the Complainants ceased to shape except on weekends. They ex-
plained their reasons to Burnbaum. The latter's response was as follows : "I
explained to them that due to union pressure I can't-I wouldn't be able to hire
them before a union man."
Additionally it is undenied that on Saturday nights, when the hiring is done
by Burnbaum's assistants, their invariable practice is, after hiring all known
union, men, to ask whether there are any more union men present. If none,
nonunion men are then hired in the order of their shop seniority.
Conclusions
From the foregoing findings it is apparent, and it is found, that since October
25, 1948, to date, the Union has attempted to cause the Company to give prefer-
ence in hiring to union members solely on the basis of their union membership,
and that as a consequence of threats, demands, and strikes, the Company ac-
corded such preference. On the part of the Union this action constituted a
violation of Section 8 (b) (2) of the statute, National Maritime Union, 78 NLRB
971; and on the part of the Company a violation of Section 8 (a) (3), Phelps
Dodge Corp. v. N. L. R. B., 313 U. S. 177. Plainly the Union was the primary
offender and the Company's discrimination a result of the compulsion of the
Union. From the beginning the Company, like its bargaining agent, the Pub-
lishers' Association, sought to pursue a legal hiring policy and, absent union pres-
sure, there is no apparent reason to doubt that it would have. But faced with
the possibility of shutdown the Company capitulated and discriminated Eco-
nomic exigencies, intimidation, or the compulsion of circumstances are, how-
ever, no defense of unfair labor practices. N. L. R. B. v. Gluck Brewinq Com-
pany, 144 F. 2d 847 (C. A. 8) ; N. L. R. B. v. Star Publishing Co, 97 F. 2d 465
(C. A. 9) ; N. L. R. B. v. Hudson Motor Car Co., 128 F. 2d 528 (C. A. 6) ; Allis-
Chalmers v. N. L. R. B., 162 F. 2d 435 (C. A. 7) ; Guy F. Atkinson Co , 90 NLRB 143;
General American Aerocoach Corp., 90 NLRB 239
The Union contends, in justification, that the Company in 1948 gave preference
to nonunion men in order that the latter could acquire seniority. There is no
substantial evidence to support this contention, however. Additionally it is
urged that there were genuine differences of opinion between the Union and
various publishers, the Company and Foreman Burnbaum over relative seniority
standing of individuals, and over interpretation of the contract and the various
awards. As has been noted, this is no doubt true Burnbaum's testimony in-
dicates that there were occasions when union contentions on these scores had
merit Were such differences the basis of the Union's conduct, it would likely
be entitled to press them by action. The basic union position, however, was
that union men must be accorded absolute preferment, whatever the law and
the reasonable interpretation of-the contract. However erroneous the Employ-
ers' judgments, they were not the substantial cause of the Union's actions.
Moreover, as has been seen, there was adequate provision under the contract and
the awards for rectification or error.
It is found that by threatening to strike, and by striking, the Company, and
by threatening Foreman Burnbaum and fining him for declining to give unlawful
preference to union members, the Union has caused and attempted to cause the
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 263
Company to discriminate against employees in violation of Section 8 (a) (3) of
the Act; the Union thereby violating Section 8 (b) (2) and 8 (b) (1) (A) ."
It is further found that by hiring union members in preference to nonunion
employees on the basis of union membership, by "bumping" or removing nonunion
employees, and by "padding" its payroll by the addition of union men, the
Company has discriminated in the hire and tenure of employees, thereby encourag-
ing membership in the Union. By that action, and by interrogation as to the
union membership of employees, the Company has interfered with, restrained,
and coerced employees in the exercise of rights guaranteed in Section 7 of
the Act.
F. Other issues
A number of additional issues raised by the parties will be discussed seriatim.
1. The General Counsel contends that it was unlawful at all times after July
20, 1948, for the Union to demand and the Company to accord, hiring priority
to any union man whose shop seniority, measured in terms of original- employ-
ment by the Company, was less than that of available nonunion men. No find-
ings of unfair labor practices are made, however, prior to October 25, 1948, the
date the existing contract became effective. Prior to July 17, 1948, hiring was on
a seniority basis. Nonunion men had no seniority and did not begin to acquire
any until July 17, 1948. Neither the expiration of the old contract nor the law
operated to confer additional seniority upon the nonunion men. The 1948 con-
tl act, however, placed seniority on the basis of , length of service or date of
original employment. The nonunion men thereby contractually acquired retro-
active seniority in some cases. So far as the record discloses, hiring between
July 17 and October 25, 1948, was on the prior and legal seniority basis. It is
therefore found that it was not an unfair labor practice for the Company to
pursue, or the Union to attempt to compel, a policy of hiring on that basis up
to October 25, 1948.
2. The General Counsel alternatively takes the position that the system of
industry-wide seniority envisioned by the interim award is per se illegal. I find
to the contrary. While it is true that such a system worked to the advantage
of some union men it did not thereby become illegal. The pattern of bargaining
was on an industry-wide basis. The interim award was issued by the Adjust-
ment Board under the chairmanship of Professor Hays, not by the bilateral
action of the parties ; and under the contract the award was final and binding
on the disputants. The closing of the Interborough News Company and the
19 Earlier Board decisions indicate that Section 8 (b) (1) (A ) is to he narrowly con-
strued : International Typographic Union, 86 NLRB 951 ; National Maritime Union, 78
NLRB 971 ; Seampru fe Co., 82 NLRB 892; Smith Cabinet Co., 81 NLRB 866; Perry Norvell
Co , 80 NLRB 225 ; Sunset Line and Twine Co , 79 NLRB 1487 ; and further indicate that
it is not necessarily a violation of the subsection for a union to cause an employer to
discriminate against employees • H. Milton Newman , 85 NLRB 725 . In more recent
decisions , however, such violation has been uniformly found . See, for example, Randolph
Corporation, 89 NLRB 1490; Union Starch and Refining Co , 87 NLRB 779 ; Clara-Val
Packing Co , 87 NLRB 703; General American Aerocoach, 90 NLRB 239. The instant
finding of 8 (b) (1) (A) is made on the authority of the line of decisions illustrated by
the latter cases.
The record contains evidence that in March 1949 Chapel Chairman Laspanuso told
Complainant Fallara to shape the garage only, and not the plant proper. When Fallara
defied this instruction , Laspanuso threatened to have him put out of the building saying
further , " You won ' t get a union card, or you won't get work in this building , even if I
freeze over in hell " Laspanuso 's agency status is disputed . The complaint alleges
violation of 8 (b) (1) (A) derivatively only (flowing from the violation of 8 (b) ( 2)) and
not independently In view of doubt as to the agency question and the allegations of the
complaint , no finding is made as to whether this incident constituted 8 (b) (1) (A) by
the Union.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
newspaper Star in 1949 and the later merger of the New York Sun with the
Woi ld-Telegram in January 1950 created employment problems of an industry-
wide nature in the delivery field. The men displaced by these closings sought
employment in the remaining papers The publishers are no doubt desirous
of retaining experienced personnel in the industry and the Union anxious to
provide employment for members, some of whom have devoted a lifetime to it.
Under such circumstances, in the absence of any persuasive evidence that the
interim award was contrived for the purpose of giving unlawful preference to
union members, I see nothing illegal in the system of industry seniority Pacific
American Shipowners Association, 89 NLRB 1016.
3 Additionally it is contended by the General Counsel that Burnbaum, because
of his union membership, was acting in the dual capacity of company representa-
tive and union agent in hiring. This assertion is found to be without merit.
Mere union membership is not sufficient to establish union agency Sunset Line
and Twine Company, 79 NLRB 1487: Irwin-Lyons Lumber Co., 87 NLRB 54;
Daily Cong. Rec 4561 (May 2, 1947) : Id. 4142 (April 25, 1947)
4. It is further asserted that by reason of its status as a "closed union" the
Union also violated the following underlined portion of Section 8 (b) (2) :
(b) It shall be an unfair labor practice for a labor organization or its
agents-
* * a a * r r
(2) To cause or attempt to cause an employer to discriminate against
an employee in violation of subsection (a) (3) or to discriminate aga/inst
an, employee ioith respect to whom membership in such organization has
been dented or terminated on sonic ground other than his failure to
tender the periodic dues and the initiation fees uniformly required as
a condition of acquiring or ietainin.g nbembershbip. [Emphasis supplied.]
In the same connection it is contended that the Company violated a similar
proviso to Section 8 (a) (3). The Complainants were not eligible for member-
ship in the Union Since violations of Section 8 (a) (3) on the part of the
Company and of 8 (b) (2) on the part of the Union have already been found, it
is unnecessary further to constine these portions of the statute or to determine
whether the facts establish violations of them.
5. The Company contends in its brief, inter alia, that the General Counsel
has not established that the Complainants applied for or obtained union Inem-
bership within 30 days in accordance with the union-shop clause of the contract;
and that as a consequence the General Counsel has not made out a violation of
Section 8 (a) (3). Apart from other considerations, none of the evidence sug-
gests that the union-shop clause had anything to do with the conduct either of
the Union or the Company ; in fact, it quite clearly establishes the contrary.
But whatever the fact, the burden is not upon the General Counsel to negative
every possible defense If the union-shop clause was a material factor in the
Company's decision to discriminate, and a valid defense thereto, the evidence
does not reveal it.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in Section III, above, occurring
in connection with the operations of the Respondent Company described in
Section I, above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of commerce.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 265
V. THE REMEDY
It having been found that the Respondents have engaged in and are engaging
in unfair labor practices, it will be recommended that they cease and desist
therefrom and take affirmative action designed to effectuate the policies of
the Act
"And Others"
The complaint, Section 9, alleged that the Union demanded, and the Company
gave, "preference to union members for employment . . . over [the Complain-
ants] and others, because the complainants and others were not members of the
Union." (Emphasis supplied.) The General Counsel, citing Reliable News-
papei Delivery, Imo , 88 NLRB 659 as authority, contends that the phrase "and
others" makes this a class action, and that the remedial order should therefore
contain a direction to renubuise all nonunion employees, whether named or not,
for loss of wages due to discrimination As I understand the General Coun-
sel's position, the identity of such persons, if not established in this record, may
be ascertained in compliance proceedings.
The Reliable Newspaper case involved a class action. See also Somerset
Classics, Imo, 90 NLRB 1676. In the Reliable case the Board said:
Although the charge in this case states that the Respondent discriminated
with respect to four named employees, the complaint alleged, more broadly,
that the Respondent discriminated against all of its nonunion employees.
On the basis of the entire record in this case, it seems clear that all non-
union employees, who were similarly situated, including the four named
employees suffered identical disciiminatory treatment Accordingly, we
shall provide that the Respondent make whole all nonunion employees
similarly situated who were in its employ during the period in question
for any loss of pay they may have suffered . . .
The instant complaint does not. howevet,,as I construe it. envisage a class
action Unlike the Reliable complaint, which pleaded discrimination against
all nonunion members, the instant one names the individuals discriminated
against and adds the phrase "and others " At the hearing the General Coun-
sel was permitted, over objection, to attempt to identify, and to prove discrim-
ination as to, what additional individuals were embraced in the phrase "and
others." Foreman Burnbaum testified generally that about January 1, 1949,
about 26 senior nonunion men were shaping the shop, but that he discriminated
only as to the Complainants The testimony of Robert and John Krioski
establishes that on several identified dates in December 1949 and January and
February 1950, 3 nonunion men, De Masi, La Scala, and Thomas Dolan, were
at the shape and not employed The record does not establish their seniority,
however, relative to the men who were hired, there is therefore no basis for
finding that they were disctinunatorily denied employment on the dates in
question. Other than these 3 and the Complainants there is no evidence of
a specific occurrence of refusal to hire The order will therefore be limited
to the complainants
The Waivers and Releases
During the course of the hearing the Complainants and the Company, without
the approval of the General Counsel, executed releases and waivers whereby the
Complainants, in consideration, inter alma of a joint money payment of $2,000
waived "any and all back pay," and released the Company from "all manner of
actions . . . judgments . . . claims and demands." Citing Botany Waisted
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mills, 4 NLRB 292, 106 F. 2d 263, the Company contends that back pay should not
be awarded. In that case, the discriminatee having testified that he did not want
back pay, the Board did not order it. The Board noted, however, that the amount
involved was small (approximately $11). No similar assumption can be made
here. It is found that in the present circumstances an order of reimbursement
is required in order to effectuate the policies of the Act. The Company will be
entitled, no doubt, in the compliance stage of proceedings, to set off any payments
it has already made.
The Company also asserts that the Union was responsible for the discrimina-
tion and that therefore it only should be required to pay back pay. While, as has
been found, the discrimination occurred at the instance of the Union, was re-
sisted by the Company, and indulged in only to prevent deliveries from coming
to a halt, the Company was also responsible. Though the Company's position
was without doubt unenviable, it and only it could deny the nonunion men
nondiscriminatory order of hiring. As a matter of policy, moreover, the wisdom
of assessing back pay against only one of two feasors is doubtful. Resistance
to union demands for unlawful discrimination is likely to be discouraged if the
employer is discharged from responsibility for his own advertent action.
Wilful Loss of Wages
-In November 1949, convinced that they could not expect substantial employ-
ment under the discriminatory order of hiring, the bulk of the Complainants
ceased shaping except during weekends and sought other employment. It is
argued that any loss of wages thereafter was wilfully incurred. This contention
is not to be sustained. Presumably not persons of unlimited resources, and
some of them family men, the Complainants were scarcely in a position to wager
on the successful outcome of their claim The decision to seek other employment
was, under the circumstances, reasonable wisdom. Whether they would have
received employment, and to what extent, if they had continued to shape daily,
sometimes from early morning to midnight, is speculative. Moreover, the cause
of this decision was the failure to receive expectable employment. The Com-
pany's action is therefore analogous to that of a constructive discharge, for which
back pay should not be abated. In any event, whatever net sums were earned
as wages by the Complainants in other employment are to be considered in de-
termining the amount of back pay due. Finally, as a matter of policy, the seek-
ing of gainful and useful employment, rather than idleness in expectation of
reimbursement by the Board, is to be encouraged. See Harvest Queen Co., 90
NLRB 320.
Similar conclusions follow with respect to Complainant George Honan who,
offered other employment in August 1949, accepted it after first consulting Fore-
man Burnbaum and being informed that the chances of employment were lessen-
ing because of the influx of union men, and that it "would be best" for Honan to
take the other job.
Since April 23, 1949, Complainant Jack Tobin has been, and at the time of
hearing still was, incapacitated with a work-incurred back injury. In his case
back pay will be abated from that date to the date Tobin is able to resume work.
Having found that the Respondent Company has discriminated in regard to
the hire and tenure of employment of the Complainants, Anthony Fallara, Louis
Salsano, Jack Tobin, Theodore Graff, Robert Krioski, Richard Ricco, George
Honan, and Rocco Filazzola, it will be recommended that the Company offer em-
ployment to those individuals without discrimination because of their nonmem-
bership in the Union , and without prejudice to their seniority and other rights
and privileges.
NEWSPAPER AND MAIL DELIVERERS ' UNION OF N. Y. AND' VICINITY 267
Having further found that the Respondent Union has caused the Respondent
Company so to discriminate it will be recommended that the Union notify the
Company, in writing, that it has no objection to the nondiscriminatory employ-
ment of the Complainants ; and further that it request the Company to offer the
Complainants employment without discrimination because of their nonmember-
ship in the Union and without prejudice to their seniority and other rights and
privileges.
Both Respondents being responsible for the discrimination suffered by the
Complainants , it will be recommended that they jointly and severally make them
whole for any losses of pay incurred by reason of the discrimination . Except for
Tobin , the back-pay period will be from October 25, 1948, to the date of compli-
ance with these recommendations . In the case of Tobin, back pay will be
abated from the date of his incapacity , April 23, 1949 , to the date he is able, and
notifies the Company of his desire , to return to work. Exact computations shall
be in accordance with the Board 's usual policies : F. W. Woolworth Co., 90 NLRB
289: Crossett Lumber Comp any, 8 NLRB 440; Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
It will also be recommended that the Respondent Company make available
to the Board upon request payroll and other records to facilitate the computa-
tion of back pay.
The Respondent Company may terminate further accrual of back pay by offer-
ing and according the Complainants nondiscriminatory employment ; the Union
by notifying the Company that it has no objection to, and permitting them, such
employment.
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. The Hearst Consolidated Publications , Inc., is engaged in commerce within
the meaning of Section 2 (6) and ( 7) of the Act.
2. Newspaper and Mail Deliverers ' Union of New York and Vicinity is a labor
organization within the meaning of Section 2 ( 5) of the Act.
3. By causing and attempting to cause the Respondent Company to discrimi-
nate against employees Anthony Fallara , Louis Salsano , Jack Tobin , Theodore
Graff , Robert Krioski , Richard Ricco, George Honan, and Rocco Filazzola, in
violation of subsection 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.
4 By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act , the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( b) (1) (A) of the Act.
5. By discriminating in regard to the hire and tenure of employment of
Anthony Fallara, Louis Salsano , Jack Tobin, Theodore Graff, Robert Krioski,
Richard Ricco, George Honan , and Rocco Filazzola , thereby encouraging member-
ship in a labor organization , the Respondent Company has engaged in unfair
labor practices within the meaning of Section 8 ( a) (3) of the Act.
6. By interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act , the Respondent Company has en-
gaged in, and is engaging in, unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]