Rockaway News Supply Co., Inc.

National Labor Relations Board - Board Decisions

Jun 5, 1951

94 N.L.R.B. 1056 (N.L.R.B. 1951)

1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Auditor.-This employee who the Employer contends is a confi-
dential employee handles all billings to advertisers, prepares the
financial statements of the network, calculates daily income at the
station, and prepares the monthly statement of income and expenses
which she turns over to a certified public accountant. The Board has
held that the preparation of such data as done by this employee does
not render such employee a confidential employee within the Board's
definition of that term. Therefore, we shall include her in the
clerical unit''
We find that the following employees of the Employer at its radio
stations WFPG-FM at Atlantic City, New Jersey, excluding all con,
fidential and professional employees, guards, watchmen, and super-
visors, constitute separate units appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act:
(1) All announcer-control board operators and specialists, ex-
cluding the program director.
(2) All office clerical employees including the auditor, but excluding
the secretary and continuity traffic supervisor.
(3) All salesmen.
[Text of Direction of Elections omitted from publication in this
volume.]
10 Federal Telecommunication Laboratories, Inc, 92 NLRB 1395.
ROCKAWAY NEWS SUPPLY COMPANY, INC. and NEWSPAPER AND MAIL
DELIVERERS' UNION OF NEW YORK AND VICINITY and ROBERT LEON
BROWN, JOHN BRUCATO, ARTHUR CROMEYN, FRANK LEHMAN AND
MILWARD QUINEY. Cases Nos. 2-CA-617 and 2-CB-190. June
5,1951
Decision and Order
On October 27, 1950, Trial Examiner James J. Fitzpatrick 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 both Respond-
ents filed exceptions and the Respondent Company filed a supporting
brief.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error Was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
94 NLRB No. 156
ROCKAWAY NEWS SUPPLY COMPANY, INC. 1057
mediate Report, the exceptions and brief, and the entire record in
the case,l and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.
1. On December 5, 1950, and again on January 16, 1951, the General
Counsel, with the consent of all the other parties, moved the Board to
reopen the record in this proceeding and to incorporate therein stipu-
lations executed by the parties which were attached to the motions and
made part thereof. Having duly considered the matter, the Board
hereby grants the motions of the General Counsel and orders that the
record be, and it-hereby is, reopened, and that the aforesaid stipula-
tions be, and they hereby are, made part of the record in this
proceeding.
Pursuant to the stipulations of the parties on the record as reopened,
we find that the Respondent Company, a New York corporation, is
engaged in the sale and delivery of newspapers, magazines, and
periodicals, including the New York Times, the New York Herald
Tribune, the Daily News, and the Daily Mirror. During the past
year the Respondent Company performed services valued in excess
of $50,000 for the above newspapers, each of which sold outside the
State of New York newspapers having a value in excess of $25,000.
During the past year, the Respondent Company returned magazines
having a value in excess of $25,000 to publishers located outside the
State of New York. In view of the facts set forth above and in the
Intermediate Report, we affirm the Trial Examiner's finding that the
Respondent Company is engaged in commerce within the meaning
of the Act.2
2. In January 1946, the two Respondents executed an agreement,
to expire in October 1947, which provided that the Union was the
recognized bargaining agent of its members in the Company's employ,
and that the Company would hire only members of the Union, unless
not available, in which event it was permitted to hire nonmembers.
The agreement also provided for up to 2 weeks' vacation, double time
for holidays, and time and a half for time worked in excess of five
shifts or working days a week. In October 1946, the term of this
agreement was extended to October 1948. In October 1947, the parties
executed a supplemental agreement raising the rates of pay and
providing that if, at the termination of the current agreement, the
parties should negotiate a new one, the wage rates contained therein
'The request of the Respondent Company for oral argument is hereby denied as the
record and brief , in our opinion , adequately present the issues and the positions of the
parties.
2 Stanislaus Implement and Hardware Co , Ltd, 91 NLRB 618; Hollow Tree Lumber
Company, 91 NLRB 635 see also Hanson News Agency Inc, 93 NLRB 1123; The Ifearet
Consolidated Publications Ice, et at , 93 NLRB 237
953841-52-vol 94-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should apply retroactively to the last 3 months of the expiring agree-
ment. On October 25, 1948, the parties entered into a new agreement,
which recognized the Union as the exclusive bargaining agent of all
employees of the Company, and which provided for a union shop. No
election authorizing a union shop has ever been held. The agreement
also provided for higher wages and for an additional week's vacation.
It was stipulated that from August to October 1948, union-member
employees were paid time and a half for time worked in excess of
five shifts or working days per week, were paid double time for
holidays, and were given 3 weeks' vacation with pay. These were
benefits which were not accorded to nonunion employees. It was
further stipulated that after the October 1948 agreement went into ef-
fect, the union-member employees were given a lump sum to bring the
wages they had received between July 17 and October 23, 1948, up to
the level established by the new agreement. They were also given an
extra week's vacation with pay or the money equivalent. Nonunion
employees were not given any of these benefits either.
We agree with the Trial Examiner's findings that by thus dis-
criminating between union-member and nonunion employees, the Re-
spondent Company violated Section 8 (a) (1), (2), and (3) of the
Act. The Respondent Company claims as a defense that this discrimi-
nation based upon union membership was justified by the 1946 agree-
ment and its 1947 supplement, which the Company contends were
valid agreements under the provisions of the Wagner Act prior to its
amendment in 1947. We do not agree. The 1946 agreement and its
1947 supplement embodied some features of both a closed-shop and a
"members-only" contract without complying with the legal require-
inents of either. The Act, before its amendment, as well as since then,
permitted union-security contracts only when the union making such
a contract was the exclusive collective bargaining agent of all of the
employees in the uilit.3 Here, although the Union, in the 1946 agree-
inent and its 1947 supplement, was representing its members only, this
agreement and its supplement nevertheless required that the Company
exhaust the available supply of union members before hiring any
nonunion employees, and limited the acquisition of seniority rights to
union-member employees.
Even if contracts containing such provisions were entered into by a
majority bargaining representative on behalf of all the employees in
the unit, they would not be lawful or enforceable by the parties thereto.
The Supreme Court has ruled that contracts between an employer and
the majority bargaining representative of his employees cannot arbi-
trarily discriminate between groups of employees in the unit for "the
3 Section 8 (3) of the National Labor Relations Act and Section 8 (a) (3) of the Act
as amended.
ROCKAWAY NEWS SUPPLY COMPANY, INC. 1059
organization chosen to represent the craft is to represent all its mem-
bers, the majority as well as the minority, and act for and not against
those whom it represents ." 4 By withholding from the nonunion em-
ployees all the benefits thereof, the 1946 agreement and its 1947 sup-
plement arbitrarily "acted against" these employees . We therefore
find that this agreement and its supplement were unlawful , regardless
of whether or not at the time of their execution the Union represented
a majority or minority of the employees . Being unlawful , the 1946
contract and the 1947 supplement cannot justify the preferential treat-
ment of union -member employees.
Furthermore , aside from the legality - or illegality of their agree-
ments, the Respondents , by granting more advantageous working con-
ditions to union -member employees , unlawfully discriminated against
nonunion employees . Section 8 ( a) (3) of the Act makes it illegal
for an employer to discriminate , on the basis of union membership, in
regard to hire or tenure of employment or any term or condition of
employment of his employees . To hold that because a collective bar-
gaining agreement purports to establish terms and conditions of em-
ployment for union members only, an employer may refuse to give his
nonunion employees equal terms and conditions , would not only be
contrary to the plain meaning of Section 8 (a) (3) of the Act, but
would also violate the spirit and intent of the entire Act.,'
We find no merit in the Respondent Company's contention that it
cannot be found in violation of Section 8 (a) '(3) of the Act without
proof that its discrimination actually encouraged membership in the
Respondent Union. It is enough to show that the discrimination was
such as to have the natural tendency to encourage or discourage
union membership . e Limiting the payment of substantial sums of
money to employees who were union members would certainly con-
stitute a strong inducement to them to retain their membership, and
to nonmembers to seek union membership . In fact, several nonunion
employees testified without contradiction that they had attempted to
join the Union but had been rejected.
By thus encouraging membership in the Respondent Union, the
Respondent Company lent its support thereto in violation of Section
8 (a) (2) of the Act. The limitation of benefits to union-member
employees by the Company also constitutes a violation of Section S
(a) (1) of the Act.
3. We also agree with the Trial Examiner that by executing the
1948 contract, which contained an unauthorized union-security clause,
4 Steele v Louisville and Nashville Railroad Co , et al , 323 U S 192, 202; Tunstall v.
Brotherhood of Locomotive Firemen and Enginemen , 323 U S 210.
5 See House Committee Repoit on the NLRA , H. Rep No 1147 , 74th Cong 1st session
pp 20, 21.
6 General Motors Corp , 59 NLRB 1143 , enforced 150 F 2d 201
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent Company violated Section 8 (a) (1), (2), and (3) of
the Act. Contrary to the contention of the Company, the effectiveness
of the the union-security clause was not conditioned upon the holding
of a union-authorization election. The Company also raises the de-
fense that it did not enforce the union-security clause. As the mere
execution of an unlawful union-security contract, however, constitutes
a violation of Section 8 (a) (1), (2), and (3) of the Act, the fact that
the union-security clause was not enforced does not preclude a finding
that the Company violated these sections of the Act.7 Moreover, by
putting into effect the discriminatory provisions of the 1947 supple-
ment, the 1948 agreement violated Section 8 (a) (1), (2), and (3),
without reference to the unlawful union-security clause.
4. We agree with the Trial Examiner's finding that after the execu-
tion of the 1948 contract, the Respondent Company discriminated
against some of its nonunion employees in the matter of route assign-
nients and of extra pay when shifts were changed without due notice.
However, the Trial Examiner failed to recommend that the employees
who were discriminated against with respect to route assignments
should be assigned to those routes to which their seniority and com-
petence entitled them.8 As it is Board policy to restore discriminatee3
to the position they would have occupied but for the discrimination,
we shall order the Respondent Company to assign the discriminatees;
to those routes to which their seniority and competence entitle them.
5. The Trial Examiner found, and we agree, that the Respondent
Union, by executing the 1948 agreement containing an unauthorized
union-security clause, violated Section 8 (b) (1) (A) and 8 (b) (2)
of the Act.9 Because of this violation, the Trial Examiner found that
the Union should be made jointly and severally liable with the Re-
spondent Company for any losses of pay suffered by nonunion em-
ployees by reason of all the discriminatory treatment accorded them
because of their nonmembership in the Union.
The state of the pleadings and of the record, however, do not jus-
tify quite so broad an order. Although the complaint sets forth the
specific acts of discrimination committed by the Respondent Com-
pany against nonunion employees in violation of Section 8 (a) (1),
(2), and (3) of the Act, it alleges as to the Respondent Union only
that on October 25, 1948, the Union executed and has since kept in
7 Julius Resnick, Inc, 86 NLRB 38; Childs Company, 93 NLRB 281.
s The Trial Examiner, although he indicates his intention in "The remedy" section of
his Intermediate Report to recommend that the Respondents make whole the discriminatees
for all the discrimination practiced against them, omits to provide in his recommended
order that they should be made whole for the discriminatory route assignments and the
failure to receive extra pay when their shift was changed without notice As there is
no explanation of this omission, it was probably due to an oversight, which we shall
correct by ordering that the discriminatees be made whole for losses of pay they may
have suffered by discriminatory route assignments and failure to receive extra pay when
their shifts were changed without notice.
6 Childs Company, supra.
ROCKAWAY NEWS SUPPLY COMPANY, INC. 1061
'effect an invalid collective bargaining agreement which required mem-
bership in the Union as a condition of employment and which other-
wise provided for preferential treatment of members of the Union in
violation of Section 8 (b) (1) (A) and 8 (b) (2) of the Act. At the
hearing, counsel for the General Counsel asserted that the 8 (b) (1)
(A) and 8 (b) (2) allegations were based solely upon the 1948 agree-
ment. As the allegations and evidence against the Union are thus
limited to violations arising out of the 1948 agreement, we are pre-
cluded from finding the Union responsible for acts of discrimination
arising solely out of the 1946 agreement and its 1947 supplement, and
for any other acts of discrimination not provided for or arising out of
the 1948 agreement.
As the discriminatory retroactive benefit provisions of the 1947 sup-
plement would not have become effective except for the increased wage
and vacation benefits provided by the 1948 agreement, the Respondent
Union, by executing the 1948 agreement, "caused" the Respondent
Company to limit these benefits to union-member employees. We
have found this limitation of benefits by the Respondent Company
violative of Section 8 (a) (3) of the Act. Therefore, the Union, by
causing this limitation, violated Section 8 (b) (1) (A) and 8 (b) (2)
of the Act. Accordingly, we shall hold the Union jointly and sever-
ally responsible with the Company for 1 week's vacation pay and for
retroactive pay for the period from July 23 to October 23, 1948, which
ivas given to members and denied to nonmembers of the Union.
Two weeks' vacation with pay, double time for holidays, and time
and a half for hours worked in excess of five shifts or working days a
week were provided for union-member employees by the 1947 supple-
ment and for all employees by the 1948 agreement. It was stipulated
by the parties that until the execution of the agreement in 1948, these
benefits were limited to union-member employees, and the record indi-
'cates that, with the minor exceptions set forth in the Intermediate Re-
port, these benefits have been applied to all employees since the execu-
tion of the 1948 agreement. In view of the state of the pleadings and
of the record, as set forth above, we shall not hold the Union respon-
sible for 2 of the 3 weeks' vacation with pay, for double time for holi-
days, or for time and a half for hours worked in excess of five shifts
or working days a week. For the same reasons we shall not hold the
Union responsible for the Company's grant of retroactive pay for 1
week in excess of the requirements of the 1947 supplement.
Order
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that :
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
• Rockaway News Supply Company, Inc., Valley Stream, New York,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from,:
(a) Encouraging membership in Newspaper and Mail Deliverers'
Union of New York and Vicinity, or in any other labor organization
of its employees, by discriminating against its employees because of
their nonmembership in the Union in-regard to overtime pay, vaca-
tions with pay, and extra pay for shift changes without notice, or by
discriminating in the hire or tenure of employment or any term or
condition of employment of any of its employees.
(b) Performing or giving effect to its contract of October 25, 1948,
with Newspaper and Mail Deliverers' Union of New York and Vicin-
ity, or to any modification, extension, supplement, or renewal thereof,
or to any other contract, agreement, or understanding entered into with
said organization, or any successor thereto, relating to grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said organization shall
have been certified by the', National Labor Relations Board as the col-
lective bargaining representative of the affected employees.
(c) Recognizing Newspaper and Mail Deliverers' Union of New
York and Vicinity, or any successor thereto, as the representative of
any of its employees for the purposes of dealing with the Respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until said
organization shall have been certified by the National Labor Rela-
tions Board.
(d) Entering into, renewing, or enforcing any agreement with
Newspaper and Mail Deliverers' Union of New York and Vicinity, or
any other labor, organization, which requires its employees to join or
maintain their membership in such labor organization as a condition of
employment, unless such agreement has been authorized as provided by
the National Labor Relations Act, as amended.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities, ex-
cept to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative, action, which the Board finds will
effectuate the policies of the Act:
ROCKAWAY NEWS SUPPLY COMPANY, INC. 1063
(a) Assign to Robert Leon Brown, John Brucato, Arthur Cromeyn,
.and Frank Lehman routes to which their seniority and competence
entitle them without regard to whether or not they are members of
Newspaper and Mail Deliverers' Union of New York and Vicinity.
(b) Make whole Robert Leon Brown, John Brucato, Arthur
Cromeyn, and Frank Lehman for any losses of pay each of them may
have suffered by reason of the Respondent Company's discrimination
against them in route assignments.
(c) Make whole Frank Lehman for his failure to be given extra
compensation when his shift was changed without due notice and
without extra pay.
(d) Make whole Robert Leon Brown, John Brucato, Arthur
Cromeyn, Frank Lehman, and Milward Qiliney, and any other non-
union employees similarly situated, for any losses of pay each of them
may have suffered by reason of the Respondent Company's discrimin-
atory, denial, because of nonmembership in the said Union, of the
following benefits : Retroactive pay for the period from July 17 to
July 24,4948; 2 weeks' vacation with pay for 1948; double time for
holidays worked in the period from August 7, 1948, to October 23,
1948; time and a half for days or shifts in excess of five worked during
the week in the period from August 7, 1948, to October 25, 1948.
(e) Withdraw and withhold all recognition from Newspaper and
Mail Deliverers' Union of New York and Vicinity as the representa-
tive of any of the Respondent Company's employees for the purposes
of dealing with the Respondent Company concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, unless and until said organization shall have
been certified by the National Labor Relations Board.
(f) Upon request, make available to the Board or its agents for
examination and copying all payroll and other records necessary to
analyze the amounts of pay due under the terms of this Order.
(g) Post at its plant in Valley Stream, New York, copies of the
notice attached hereto and marked "Appendix A." 10 Copies of the
notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the Respondent Company, be posted
by it immediately upon receipt thereof, and maintained by it for at
least sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
11 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words, "A Decision and Order," the words,
"A Decree of the United' States Court of Appeals Enforcing."
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(h) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
Newspaper and Mail Deliverers' Union of New York and Vicinity
shall :
1. Cease and desist from :
(a) Causing Rockaway News Supply Company, Inc., to discrim-
inate against its employees, because of nonmembership in the Union,
in regard to their wages, vacations, and other terms and conditions
of employment.
(b) Performing or giving effect to its contract of October 25, 1948,
with Rockaway News Supply Company, Inc., its successors or assigns,
or to any modification, extension, supplement, or renewal thereof, or
to any other contract, ,agreemePt, or understanding with Rockaway
News Supply Company, Inc., relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, unless and until it shall have been certified by the National
Labor Relations Board as the collective bargaining representative of
the affected employees.
(c) Entering into, renewing, or enforcing any agreement with
Rockaway News Supply Company, Inc., its successors and assigns,
which requires the employees of that organization to maintain their
membership in the Respondent Union as a condition of employment,
unless such agreement has been authorized as provided by the National
Labor Relations Act, as amended.
(d) In any other manner interfering with, restraining, or coercing
employees of Rockaway News Supply Company, Inc., in the exercise
of their rights to self-organization, to form, join, or assist labor organ-
izations, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the purposes and policies of the Act:
(a) Post at its offices in New York and wherever notices to its
members are customarily posted, and mail to each of its members,
copies of the notice attached hereto t,nd marked "Appendix B" 11
Copies of the notice, to be furnished by the Regional Director for
11 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words, "A Decision and Order ," the words,
"A Decree of the United States Court of Appeals Enforcing."
ROCKAWAY NEWS SUPPLY COMPANY, INC. 1065
the Second Region, shall, after being duly signed by an official rep-
resentative of the Union, be posted by it immediately upon receipt
thereof, and maintained by it for at least sixty (60) consecutive clays
thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, of covered by any
other material.
(b) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto, marked "Appendix B," for post-
ing, the Company willing, at the Company's bulletin board and in
places where notices to employees are customarily posted. Copies of
said notice, to be furnished by the Regional Director, shall, after being
signed as provided by paragraph 2 (a) of this Order, be forthwith
returned to said Regional Director for said posting.
(c) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
Rockaway News Supply Company, Inc., and Newspaper and Mail
Deliverers' Union of New York and Vicinity, jointly and severally
shall make whole Robert Leon Brown, John Brucato, Arthur Cromeyn,
Frank Lehman, and Milward Quincy, and any other nonunion em-
ployees similarly situated, for any losses of pay each of them may
have suffered by the discriminatory denial, because of nonmembership
in the Union, of 1 week's vacation with pay and of retroactive pay for
the period of July 24, 1948, to October 25, 1948.
MEMBER STYLES took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL assign to Robert Leon Brown, John Brucato, Arthur
Cromeyn, and Frank Lehman routes to which their seniority and
competence entitle them without regard to whether or not they
are members of NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW
YORK AND VICINITY.
WE WILL make whole Robert Leon Brown, John Brucato,
Arthur Cromeyn, and Frank Lehman for any losses of pay each
of themmay have suffered by reason of our discrimination against
them in route assignments.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole Frank Lehman for his failure to be paid
extra compensation when his shift was changed without due
notice and without extra pay.
WE WILL make whole Robert Leon Brown, John Brucato, Ar-
thur Cromeyn, Frank Lehman, and Milward Quiney, and any
other nonunion employees similarly situated, for any losses of pay
each of them may have suffered by reason of our discriminatory
denial, because of nonmembership in the said Union, of retro-
active pay for the period from July 17 to July 24, 1948; 2 weeks'
vacation with pay for 1948; double time for holidays worked in
the period from August 7, 1948, to October 23, 1948; time and a
half for days or shifts in excess of five worked during the week
in the period from August 7, 1948, to October 25, 1948.
WE WILL jointly and severally with NEWSPAPER AND MAIL DELIV-
ERERS' UNION or NEW YORK AND VICINITY make whole Robert
Leon Brown, John Brucato, Arthur Cromeyn, Frank Lehman,
and Milward Quiney, and any other nonunion employees similarly
situated, for any losses of pay each of them may have suffered
by reason of the discriminatory denial, because of nonmember-
ship in the Union, of 1 week's vacation and retroactive pay for the
period from July 24, 1948, to October 25, 1948.
WE WILL withdraw and withold all recognition from NEWS-
PAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY
as the representative of any of our employees for the purposes of
dealing with us concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment,
unless and until said Union shall have been certified by the Na-
tional Labor Relations Board as the bargaining representative.
WE WILL NOT encourage membership in NEWSPAPER AND MAIL
DELIVERERS' UNION OF NEW YORK AND VICINITY, or any other
labor organization of our employees, by discriminating against
our employees in regard to overtime pay, vacations with pay, or
extra pay on shift changes without notice, or by discriminating in
the hire or tenure of employment or any term or condition of em-
ployment of any of our employees.
WE WILL NOT perform or give effect to our contract of October
25, 1948, with NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW
YORK AND VICINITY, or to any modification, extension, supple-
ment, or renewal thereof, or to any other contract, agreement, or
understanding entered into with said Union, or any successor
thereto, relating to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless
and until said organization shall have been certified by the
ROCKAWAY NEWS SUPPLY COMPANY, INC. 1067
National Labor Relations Board as the collective bargaining
representative of our employees.
WE WILL NOT recognize NEWSPAPER AND MAIL DELIVERERS'
UNION OF NEW YORK AND VICINITY, or any successor thereto, as
the representative of any of our employees for the purposes of
dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of em-
ployment, unless and until said Union sliall have been certified
by the National Labor Relations Board.
WE WILL NOT enter into, renew, or enforce any agreement with
NEWSPAPER AND MAIL DELTVERERS' UNION OF NEW YORK AND VI-
CINITY, or any other labor organization, which requires our em-
ployees to join or maintain their membership in such Union as
a condition of employment unless such agreement has been au-
thorized as provided by the National Labor Relations Act.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
ROCKAWAY NEWS SUPPLY COMPANY, INC.,
Employer.
By ---------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from date hereof, and
must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE To ALL MEMBERS OF NEWSPAPER AND MAIL DELIVERERS' UNION
OF NEW YORK AND VICINITY AND To ALL EMPLOYEES OF ROCKAWAY
NEWS SUPPLY COMPANY, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT cause ROCKAWAY NEWS SUPPLY COMPANY, INC.,
to discriminate against their employees, for nonmembership in
the Union, in regard to their wages and vacations and other terms
and conditions of employment.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AVE WILL NOT perform or give effect to our contract of October
25, 1948, with ROCKAWAY NEWS SUPPLY COMPANY, INC., its suc-
cessors or assigns, or to any modification, extension, supplement,
or renewal thereof, or to any other contract, agreement, or under-
standing entered into With ROCKAWAY NEWS SUPPLY COMPANY,
INC., relating to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless
and until we shall have been certified by the National Labor
Relations Board as the collective bargaining representative of the
affected employees.
WE WILL NOT enter into, renew, or enforce any agreement with
ROCKAWAY NEWS SUPPLY COMPANY, INC., its successors and as-
signs, which requires the employees of that organization to main-
tain their membership in Newspaper and Mail Deliverers' Union
of New York and Vicinity, or in any other labor organization, as
a condition of employment, unless such agreement has been au-
thorized as provided by the National Labor Relations Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE WILL jointly and severally with ROCKAWAY NEWS SUPPLY
COMPANY, INC., make whole Robert Leon Brown, John Brucato,
Arthur Cromeyn, Frank Lehman and Milward Quiney, and any
other nonunion employees similarly situated, for any losses of
pay each of them may have suffered by reason of the discrimina-
tory denial, because of nonmembership in the Union, of 1 week's
vacation and retroactive pay for the period from July 24, 1948,
to October 25, 1948.
NEWSPAPER AND MAIL DELIVERERS' UNION OF
NEW YORK AND VICINITY,
Labor Organization.
By ------------------------------------------------
(Representative) (Title)
Dated -------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
ROCKAWAY NEWS SUPPLY COMPANY, INC.
Intermediate Report and Recommended Order
1069
Messrs. Merton C Bernstein and Jerome A. Reiner, for the General Counsel.
Bandler, Haas & Kass, by llr. .Jvlras Kass and Mr. Richard L Halpern, of New
York City, for Respondent Company.
Mr. Samuel Decker, of New York City, for the Union.
Warner & Birdsall, by Mr. Arthur G. Warner and Mr. Mordecai Bressler, of
New York City, for the Claimants.
STATEMENT OF THE CASE
Upon charges in Cases Nos. 2-CA-617 and 2-OB-190, filed by Robert Leon
Brown, John Brucato, Arthur Cromeyn, Frank Lehman, and Mildred Quiney,
herein called Claimants,' the General Counsel of the National Labor Relations
Board, herein called the Board, through the Regional Director for the Second
Region (New York, New York), issued a consolidated complaint dated June 19,
19x0, against Rockaway News Supply Company, Inc, Valley Stream, New York,
herein called the Respondent Company, and Newspaper and Mail Deliverers'
Union of New York and Vicinity, herein called the Respondent Union,' alleging
that the Respondent Company and the Respondent Union have engaged in and are
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1), (2), and (3) and Section 8 (b) (1) (A) and (2), respectively,
and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61
Stat 136), herein called the Act. Copies of the charges, the consolidated com-
plaint, and the order consolidating the cases and notice of hearing were duly
served upon the Respondents and the attorneys for the Claimants
With respect to the unfair labor practices the complaint, as amended at the
hearing, alleges in substance :
(1) That on or about October 25, 1948, the Respondents entered into a
collective bargaining agreement requiring as a condition of employment mem-
beiship in the Respondent Union and which otherwise provided for preferential
treatment of union members, in violation of the Act.
(2) That on or about October 25, 1948, the Respondent Company instituted
an increased wage rate and other benefits for those of its employees performing
the operations of chauffeurs, distributors, route men, tiers, floormen, wrapper
writers, and relay men
(3) That by the above acts and by paying, awarding, and according union
employees in the above categories the following increases, preferences, advan-
tages, and benefits, but refusing and denying them to nonunion employees per-
forming the same or similar work, i. e.: (a) Retroactive wages for a period
lioiu July to October 1948, (b) additional vacation time with pay or its equiva-
lent in money for the year 1948, (c) higher wages for holidays and overtime
work, (d) pay for the day on which work changes were made, and (e) prefer-
ence in the assignment of work, the Respondent Company has violated Section
8 (a) (1), (2), and (3) of the Act; and by entering into the illegal contract
above described, the Respondent Union caused and is causing the Respondent
Company to discriminate against its employees, including the Claimants, in
The original charges filed February 7, 1949, and duly served upon the Respondents
respectively on February 9, 1949 , were signed by the above five Claimants and four other
individuals . Amended charges in each case filed June 12 , 1950 , and served upon the
Respondents it few days thereafter were signed by Warner and Birdsall as attorneys for
the five Claimants , above set forth
2 Rockaway News Supply Company and Newspaper and Mail Deliverers ' Union will be
referred to collectively as the Respondents
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard to the tenure of their employment and the terms and conditions thereof,
in violation of Section 8 (a) (3), and is thereby engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act.
In its answer, the Respondent Company admits the allegations of the com-
plaint: (a) As to the nature of its business; (b) the institution, about October
25, 1948, of wage increases and other benefits to employees in the categories
described in the complaint ; and (c ) the payment to union employees in said cate-
gories of retroactive wages, granting them vacations with pay and allowing them
a day's pay when changes in their working shifts were affected, and that it failed
to grant like benefits to nonunion employees doing similar work The answer
further admits entering into a collective bargaining contract with the Union
but denies the other allegations of the complaint as to the contract provisions,
or that it granted union employees higher holiday pay, higher pay for similar
work and preferences in work assignments, while denying such benefits to non-
union employees ; or that it committed any unfair labor practices!
The Respondent Union's answer denies the invalidity of the contract, that
the Respondent Company interfered with, restrained, or coerced its employees
or assisted the Union, or that the Respondent Union violated Section 8 (b)
(1) (A) and (2) of the Act. The answer affirmatively alleges that the Union
filed a petition for a union-shop election as provided by Section 9 (e) of the
Act, but that the Board's Regional Director arbitrarily refused to entertain
said petition and thereby deprived the Respondent Union of the benefits of the
union-shop provisions in the contract.
Pursuant to notice, a hearing was held on July 19, 20, and 21, 1950, at New
York City before J. J. Fitzpatrick, the undersigned duly designated Trial Ex-
aminer. The General Counsel, the Respondents, and the Claimants were repre-
sented by counsel. All participated in the hearing and were granted full op-
portunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues At the opening of the hearing, Respondent
Company moved that Merton C. Bernstein be barred from participating in the
case on behalf of the General Counsel on the ground that he was not a Govern-
ment employee.' The motion was denied. When the General Counsel rested,
Respondent Company's motion to dismiss the complaint as to it was denied.
Ruling was reserved on a similar motion, renewed at the conclusion of the
hearing by the Respondent Company. The motion is disposed of as will here-
after appear. Respondent Company also moved to strike all testimony with
reference to matters prior to October 25, 1948 (6 months prior to the filing
of the amended charge against it) because of the limitation in Section 10 (b)
of the Act. The motion was denied.` Oral argument was presented on behalf
I In an amended answer the Respondent Company alleged as an affirmative defense that
the contract , containing grievance and arbitration procedures , established the rights of
the parties , and that the Claimants are precluded fiom filing charges with the Boaid until
they have exhausted the available contractual remedies. At the opening of the hearing,
on motion of the representative of the General Counsel , this defense was stricken over
the Respondent Company's objection.
* Due to a reduction in force , Bernstein had been severed from the payroll on June 30,
1950 , as an attorney for the Board ' s Second Region . Thereafter , and prior to the hearing
herein , he had been reappointed as an attorney to complete this and other similar cases
he had previously worked on , and to serve without compensation
5 Respondent Company attacked this ruling in its brief at considerable length However,
the original charge alleged exactly the same facts as did the amended charge , the only
difference being that in the amended charge the facts stated were alleged to constitute
not only a violation of Section 8 (a) (1) and ( 3) as alleged in the first charge, but also
a violation of Section 8 (a) (2) of the Act The factual allegations of the original charge,
if proven , are sufficient to support a finding of assistance under Section 8 (a) (2) 1 am
ROCKAWAY NEWS SUPPLY COMPANY, INC. 1071
of the General Counsel, the Claimants, and the Respondent Company. All
parties were granted time to file briefs and/or proposed findings of fact and
conclusions of law. Since the close of the hearing, a brief has been received from
the Respondent Company.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT COMPANY
Rockway News Supply Company, Inc, is a New York corporation with prin-
cipal office and place of business in Valley Stream, Nassau County, New York,
and also a place of business in Long Island City, Queens County, New York.
It is engaged in the purchase, sale, and wholesale, distribution and delivery
of newspapers, magazines, and periodicals. During the 12-month period im-
mediately preceding the hearing it caused to be purchased, transferred, and
delivered to its places of business in the State of New York, newspapers, maga-
zines, and periodicals, including but not limited to the New York Times, New
York Herald Tribune, the Daily News, and the Daily Mirror, each of which
used one or more of the wire services known as the United Press, the Associated
Press, and International News Service, valued at an amount in excess of
$500,000, of which a substantial percentage (15 percent) was transported di-
rectly to its places of business from States other than New York. During the
same period, the Respondent Company sold, distributed, and delivered news-
papers, magazines, and periodicals to ietail distributors in New York State,
and shipped unsold magazines and periodicals to parties located outside the
State of New York.
As alleged in the complaint, admitted in the Respondent Company's answer,
and stipulated at the hearing, I find that Rockaway News Supply Company, Inc.,
is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Newspaper and Mail Deliverers' Union of New York and Vicinity is a labor
organization admitting to membership employees of the Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. Contractual relations between the Respondents
For a number of years prior to the enactment in 1947 of the Taft-Hartley
amendment to the National Labor Relations Act, the Respondent Company had
contractual relations with the Respondent Union, as did other employers doing
similar work in the New York City area. The last formal contract between
the Respondents prior to the October 25 , 1948, contract referred to in the
complaint , was executed in January 1946, and was effective from October 1, 1945,
to October 16, 1947. This contract specified in its preamble that it was between
the Respondent Company and the Respondent Union "for and in behalf of the
Union and for and in behalf of the members thereof now employed and here-
after to be employed by the employer and collectively designated as the 'em-
ployees.' " It provided that the employer was to "employ only members of
of the opinion that the cases cited in support of the Respondent's contention are not
determinative of the question, and that the statute of limitations does not apply in the
instant case See Jaques Power Saw Co , 85 NLRB 440; Cathey Lumber Company, 86
NLRB 157 ; and Tennessee Knitting Mills, Inc., 88 NLRB 1103.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union" and that the Union should at all times furnish such men as were
required by the employer, but that when the Union "fails to fur rash such men
promptly the employer is authorized to meet its needs" by employing such men
as it was able to secure; but that if the men "so employed" are not union mem-
bers they shall be employed only so long as the Union fails to furnish union
members "willing and qualified to take their places." By written stipulation
dated October 22, 1946, the term of the contract was extended to October 16, 1948.
On October 9, 1947, by a second supplementary agreement the rates of pay of
those covered in the contract were raised for the period starting October 17,
1947, and ending October 16, 1948. It also provided:
In the event that the parties enter into a new written contract effective
from the expiration of the existing contract which contract shall expire no
earlier than three months after the effective term of any new written contract
which the Union may enter into with the Publisher's Association of New
York City, then and in such event, the wage rates provided in such new
contract between the parties hereto shall be applicable retroactively for
the past three months of the present existing contract. . . .
The Respondents entered into a new contract on October 25, 1948, current at
the time of the hearing, which contract apparently was contemporaneous with
a contract Respondent Union had engaged in with the Publishers' Association
(referred to in the 1947 supplement above quoted). This 1948 agreement
recognized the Union as "exclusive representative for collective bargaining" of
all • chauffeurs, distributors, routemen, tiers, label writers, and relay men" em-
ployed by the Respondent Company in the handling and delivery of newspapers,
magazines, periodicals, and merchandise
The 1948 contract provided for pay raises, a vacation period of 3 weeks an-
nually for older employees,' double time for work on holidays and a provision
that when an employee's work time was changed he was entitled to 4 days'
notice thereof. In the event of failure to give the 4 days' notice the employee
was entitled to time and a half for the "tune involved in the change." It in-
cludes the following:
2-b The Employer agrees to employ only members of the Union thirty
days following the effective date of this agreement, it being understood that
any new employees employed after the effective date of this agreement as a
regular situation holder be required to become members of the Union thirty
days following the beginning of employment
2-c The parties hereto agree that when a definition or interpretation of
the 30 day period has been handed down by law, then such definition or
interpretation shall thereafter govern in so far as this contract is concerned
Because of the enactment of the Labor Management Relations Act, 1947,
this contract differs from its immediate predecessor and from contracts be-
tween these parties over a period of many years Specifically, this agree-
ment eliminates closed shop and references thereto because it no longer is
permissible under the federal law. This provision is appended hereto as an
appendix to, but not as a part of, this contract.
It is understood and agreed, however, for the duration of this contract,
that if any provision, as shown in the appendix hereto, and as modified from
the preceding contract or excluded from this contract, solely because of the
restrictions of law, no longer is held to be inoperative either by legislative
6 The 1946 contract granted these old employees a maximum of 2 weeks annual vacation
with pay.
ROCKAWAY NEWS SUPPLY COMPANY, INC. 1073
enactment or by decision of the Court of highest recourse, then such pro-
vision automatically shall become a part of this contract, to the extent per-
mitted, and be in force and effect as though it had been originally made a
part hereof.
None of these provisions was retroactive. No union-shop election has been
held in compliance with the proviso in Section 8 (a) (3) and the terms of
Section 9 (e) of the Act.'
In addition to extra help as the business requires, the Respondent Company
normally employs steadily about 40 workers in the categories described in the
1948 agreement, all of whom were members of the Union, except the 9 who signed
the original charges herein.'
B. Benefits and preferences received in 1948 and thereafter by union employees
but not by nonunion workers
It was stipulated at the hearing, the evidence shows and I find, that union em-
ployees in the above categories received the following benefits, payments, and
preferences which were not granted to nonunion employees doing similar work
during the year 1948 and thereafter :
(1) Three weeks annual vacation with pay, or its equivalent for the year 1948.
(2) Since August 1948, double time for holidays.
(3) Since August 1948, time and a half for hours in excess of five working
days, or shifts, per week.
(4) About December 3, 1948, an additional sum as retroactive pay for the
period July 17, 1948, to October 23, 1948 9
In addition to the above, there is credible testimony that the Respondent
Company accorded union employees other privileges over the Claimants herein
as follows :
1. Assignment of work
Claimant John Brucato had a regular situation as chauffeur on Tuesday and
Saturday nights each week on what is known as the Huntington run or route.
This job, which carried overtime, was posted in the summer of 1948. Although
Brucato applied for the position it went to Al Magiel, a union man of less sen-
iority than Brucato° Brucato protested to Foreman Daniel Coakley who stated
that Magiel had demanded the job and as he was a union man he had to give
it to him ll
In the late summer of 1948 Claimant Arthur Cromeyn who had been employed
by the Respondent Company from about January 1943, asked to be assigned
to the Montauk route on which he had had previous experience while the regular
7In December 1949 , Respondent Union filed UA petitions with the Board involving
employees of the Respondent Company herein referred to, but on January 4, 1950, requested
leave of the Board to withdraw the petitions
8 As heretofore noted ( see footnote 1, supra), these nine employees consisted of the
five claimants heretofore named plus Michael Thomas Clark , John J Scarry , Edward A.
Waring, and Vincent La Plata. The record shows that all nine sought to join the Union,
and that the four last named were admitted to membership in the Union subsequent to
the time when they had signed the original charges herein.
° It will be noted that this retroactive payment followed the provisions of the October
9, 1947, "supplement" to the 1946 contract, except that an additional week was added
to bring it up to date with the 1948 contract.
10 The 1946 contract as well as the 1948 contract provided that in the event of a
vacancy of a regular situation the job was to be filled on the basis of qualifications and
competency in accordance with seniority standing . No question is raised as to the quali-
fications and competency of Brucato or any of the Claimants herein.
11 Coakley, in effect , denied that Brucato had protested against this awarding of the
extra time run to Maglel. The denial is not credited under the circumstances.
953841-52-vol 94-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montauk driver, Lester Waring, was on vacation. This route also carried
considerable overtime and was much sought after. Foreman Coakley assigned
the route to Patrick Dugan, a union employee of less seniority than Cromeyn,
explaining to Cromeyn that Dugan as a union man had "priority." 32 Dugan had
been driving the Middle Island route which also carried overtime, but less than
that of the -Montauk route. When Dugan was assigned to Montauk, Cromeyn
was given Middle Island. That fall Charles Jeffries, a union employee with less
seniority than Cromeyn, claimed the route and under instructions from Coakley,
Cromeyn taught the route to Jeffries who then superseded him thereon. When
Cromeyn protested against this treatment Coakley replied there was nothing
"he could do about it." 13 Cromeyn was then given the Great Neck run which had
no overtime opportunities.
In addition to working a regular night shift, Claimant Frank Lehman had
what is called the Sunday Recovery route from May 1948 to June 1949. This
route began in the early morning after the regular night shift routes were com-
pleted and was designed to take care of dealers' newspaper shortages that de-
veloped. It amounted to 5 hours overtime. On June 5, 1949, the Sunday Re-
covery route was taken from Lehman and given to John Waugh, a union employee
first employed on June 13, 1948, and with considerable less seniority than Lehman.
In early 1949 Lehman was working the Springfield route which carried no over-
time. February 25, 1949, he was instructed to teach the route to Paul Leinfuz,
a union man employed on February 14, 1949. After the training had been com-
pleted Leinfuz was assigned the route over Lehman's protest and the latter was
thereafter given only irregular runs."
In April 1950, Assistant Night Foreman Anthony D'Alessandro instructed
Lehman to report at 8 p. in. on Sunday, April 24, 1950, to take Robert Near's
place on the Bull Dog edition," and also to finish the shift as tail man on the
South Shore run thus giving Lehman 4 hours overtime However, the first night
he was given a run to Wantaugh which gave him only 2 hours overtime.
The next night when he objected to this treatment D'Alessandro told him he
was not a union man and would be sent wherever D'Alessandro decided. About
May 1950, Lehman bid for a job on the day shift, but it was given to either Ed
Waring or Al Magiel, both juniors to him in seniority.
Robert Leon Brown, claimant, who till May 1949 had been doing relief work on
the night shift, applied for a regular route but was told by Foreman Coakley
that he (Coakley) was a union man and he had to "take care of the union men
first." 16
12 Coakley denied that Cromeyn ever asked to be assigned to the Montauk route t
was not impressed with Coakley as a frank witness. In addition to being somewhat
evasive at times, he testified flatly on cross-examination that he had never discussed
his testimony with the Respondent 's attorneys or anyone including his superiors prior
to the hearing To anyone experienced in court work it is incredible that any attorneys.
certainly not those of the competency and ability displayed by. Respondent Company's
counsel, would come into court without any previous knowledge of what their key witness
would testify about. Coakley ' s denial , therefore , is not credited.
13 All the routes and assignments discussed were on the night shift under the super-
vision of Foreman Coakley. The record is not too clear but apparently after Warings'
vacation was completed, Dugan was given a position on the day shift.
14 Coakley testified that Lehman's testimony that he had protested about his removal
and Coakley replied he had to give the run to Leinfuz, was "not correct" ; and that
Lehman asked to be taken off the Springfield route. I do not credit Coakley ' s version
under all the circumstances.
15 Apparently a fob at the distributing station.
16 Coakley denied he said he had to take care of union men. The record shows that
foremen were included in the 1946 contract , and that Coakley was a union member.
His denial is not credited under all the circumstances.
ROCKAWAY NEWS SUPPLY COMPANY, INC. 1075
2. Change of day off without 4 days' notice or extra pay
. Frank Lehman's testimony is further credited that his shift was changed with-
out notice but with no extra pay to compensate therefor on the following dates :
August 10, September 24, 29, and 30, October 29, 1948; January 20 and 21, April
8, 1949; and June 13, 1950,' although union men received extra pay under similar
circumstances.
C. Contentions
The General Counsel argues that as a result of the contract provisions, and by
the disparate treatment of employees above found, admittedly based on union
membership or lack of it, the Respondent Company has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8 (a) (1) thereof, has illegally as-
sisted the Respondent Union in violation of ;Section 8 (a) (2), and has discrimi-
nated against employees with respect to terms or conditions of employment
thereby encouraging membership in the Respondent Union, in violation of Section
8 (a) (3) ; and that the Respondent Union, by entering into the illegal union-
shop contract dated October 25, 194S, caused the Respondent Company to dis-
criminate against its employees in regard to their conditions of employment in
violation of Section 8 (a) (3), and thereby violated Section 8 (b) (1) (A) and
(2) of the Act. The General Counsel contends that not only is the 1948 contract
between the Respondents illegal, but that the 1946 contract, by its specific terms
and application, is vulnerable under the Statute.
It is the contention of the Respondent Company that the 1946 contract,
and its supplements, was a legally protected "closed shop" contract, and that
all it did was to comply with the terms thereof. Both the Respondents insist
that the 1948 contract is legal. Although, in effect, conceding that the Union
failed to meet the requirements of Sections 8 (a) (3) and 9 (c) on the union-
security clause therein set forth, they urge that this clause in the contract was
not enforced and that all the employees thereunder, union and nonunion, were
treated on equal terms.
D. Conclusions
As previously found, the preamble of the 1946 contract stated that it was
between the Respondent Company and the Respondent Union "for and in behalf
of the Union and for and in behalf of the members thereof now employed and
hereafter to be employed...." Although this contract also provides for a
closed shop, in practice it did not operate that way due largely to the difficulty
in securing experienced and otherwise qualified union employees As a result,
the nine employees above referred to, including the Claimants, had been regularly
employed by the Respondent Company although none of them were members
of the Respondent Union. Nevertheless, under the terms of the contract they
'7 Lehman admitted that he had been convicted and served 15 years in prison beginning
in 1932 for a homicide. Respondent Company attacks his credibility as a witness on
that ground In giving the above testimony, as well as that with reference to working
more than five shifts in 1 week, Lehman refreshed his memory from a notebook in which
he testified he had kept his work record. A vigorous cross-examination failed to shake
his testimony as to many of these dates. Under the circumstances, I credit his testimony,
especially as Respondent's records of wages paid Lehman if produced, could easily have
pointed up any discrepancies However, Arthur Cromeyn's testimony that "since August
10; 1948, there was one Sunday when his day off was changed without 4 days notice and
without extra pay" is disregarded herein as too indefinite to warrant a specific finding
thereon.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could earn no seniority rights and were subject to displacement at any time by
a union worker regardless of when the latter was employed . Under the con-
tract terms, and as they were construed and applied by both the Respondents,
these nonunion workers were treated as second class employees.
Although the 1948 contract covers nonunion as well as union employees it
contains no retroactive clause. Nevertheless , the pay increases , additional week
of annual vacation with pay, double time for holiday work, and overtime for the
sixth shift worked each week, therein provided applicable to all employees, was
applied retroactively to union employees only as heretofore found. Largely be-
cause of these retroactive payments and benefits , the General Counsel attacks the
validity of both the 1946 and the 1948 contracts.
With its benefits limited to employees who were members of the Union, the
1946 contract with its supplements was discriminatory as it provided for a greater
degree of union security than permitted by the proviso in Section 8 (3) of the
original Act. That proviso permits an employer ( under certain conditions not
here material ) to make a contract with a labor organization requiring as a condi-
tion of employment membership in a union provided the union is the represent-
ative of the employees in an appropriate unit. In the contract under considera-
tion employment was limited to union members , provided the Union produced
competent workers when needed. If it did not and nonunion employees were
hired, they were later subject to displacement at any time as it was a "closed"
Union and very difficult to join.18 In short, employee status and tenure were
based entirely on membership or nonmembership in the Union.
Moreover, in addition to permitting the operation of a "closed union" in the
plant with the discriminatory benefits above described , the agreement covered a
unit that by no Board yardstick or standard that I know of has ever been held
to be an appropriate unit. It covered all the Respondent Company's employees
engaged in the handling and delivery of newspapers and other merchandise, pro-
vided such employees were members of the Union 38 I therefore find no merit
in the contention of the Respondent Company that in the activities of 1948 and
thereafter heretofore described it was protected by the terms of a valid closed-
shop contract."
Nor can I discern any legitimate contractual defense for those activities in the
1947 supplementary agreement which, in effect , provided that if a new contract
with increased "wage rates" was entered into such increase would retroactively
apply for 3 months immediately preceding October 16 , 1948 ( the extended termi-
nation date of the 1946 contract). There was nothing in the supplementary
agreement that precluded the Respondent Company from making such retroac-
tive payments to the nonunion as well as the union employees. Moreover, these
retroactive payments to union employees extended to October 23, 1948, a week
beyond the period specified in the supplementary agreement . Furthermore, it
made no mention of increased holidays and other benefits that were granted retro-
actively to union employees only.
The union -security provision in the 1948 contract was not conditioned on rati-
fication by a union-shop election in accordance with Sections 8 (a) (3) and 9 (e)
of the Act, and in fact there was no such ratification . The Respondents , however,
contend that the union -security clause does not violate the At because it was not
enforced. The Board had ruled to the contrary . In the C. Hager and Sons
Hinge Manufacturing Company, 80 NLRB 163, it said:
is The Respondent Company had dealt with the Respondent Union for many years and
was aware of its "closed" status.
19 Cf. McQuay-Norris Mfg. Co , 116 F. 2d 748 (C. A. 7).
20 Reliable Newspaper Delivery, Inc., 88 NLRB 659.
ROCKAWAY NEWS SUPPLY COMPANY, INC. 1077
As the union-shop provision does not satisfy the conditions laid down in the
proviso to Section 8 (a) (3), it is illegal; even if no action has been taken
pursuant to it. The mere existence of such a provision acts as a restraint
upon those desiring to refrain from union activities within the meaning
of Section 7 of the Act, and is evidence that the Intervenor and the Employ-
ers are in accord in denying employment to those who refused to join the
Union within the required time.21
I find, therefore, that the 1948 contract with its union-security provision violated
the Act regardless of whether the clause was enforced or not. In reaching this
conclusion I have not overlooked the saving clause in the contract which states:
The parties hereto agree that when a definition or interpretation of the 30
day period has been handed down by law, then such definition or interpre-
tation shall thereafter govern insofar as this contract is concerned.
But the Board has held that such type of clause cannot save a union-security
provision.' Furthermore, contrary to the contentions of the Respondents, and as
above found, the Respondent Company did not treat its union and nonunion em-
ployees on an equal basis subsequent to October 25, 1948, but continued to grant
privileges and benefits to union employees while refusing them to nonunion
workers.
I find that the Respondent Company (1) by signing and enforcing the 1948
agreement containing a union-security clause without meeting the requirements
of the Act, thereby assisting the Respondent Union, (2) by granting an additional
week's vacation with pay, or its equivalent, double time for holidays, overtime for
more than five work shifts a week and retroactive pay for approximately 3
months in 1948, to union employees while denying these payments and benefits
to nonunion employees including the Claimants; by further discriminating in
favor of union employees in assignments of work to Claimants Brucato, Cromeyn,
Lehman, and Brown, and in not paying Lehman overtime when his shift was
changed without notice, are found in detail heretofore, has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act and in violation of Section 8 (a) (1), (2), and (3) thereof 2'
I find further that by executing the 1948 contract containing the illegal union-
shop clause, the Respondent Union has violated Section 8 (b) (1) (A) and (2)
by causing the Respondent Company to discriminate against its nonunion em-
ployees in violation of Section 8 (a) (3) of the Act.
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 operation of the Respondent Company described in Section
I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
21 See also, Julius Resnick, Inc., 86 NLRB 38.
22 Unique Art Manufacturing Co., 83 NLRB 1250; Lykens Hosiery Mills, Inc, 82 NLRB
981; Julius Resnick, Inc, supra.
21 The Respondent Company argues that there could be no discrimination to encourage
membership in the Union, because the record shows conclusively that its nonunion em-
ployees have always wanted to loin the Union, and that when four of the nine original
Claimants were accepted into the Union they withdrew from the case prior to the issuance
of the complaint herein. I agree with these facts as stated but not with the conclusion
The test is whether the employer's action tends to interfere with the free exercise of the
employees' rights under the Act. Link-Belt Company, 311 U. S. 584; N. L. R. B. v. Illinois
Tool Works, 153 F . 2d 811 (C. A. 7) ; Reliable Newspaper Delivery, Inc., supra.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since it has been found that the Respondent engaged in unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
The 1948 contract having been found to include a union-shop provision in viola-
tion of Section 8 (a) (2) and (1) and Section 8 (b) (1) (A) and (2) of the
Act, it will be recommended that the Respondent Company withdraw recognition
from the Respondent Union and cease giving effect to the 1948 contract with
that organization, or to any modification, extension, supplement, or renewal
thereof unless and until the Union has been certified by the Board. Nothing in
this recommendation shall be deemed to require the Respondent Company to
vary or abandon those wage, seniority, or substantive features of its relations
with its employees established in conformance with the terms of said contract,
or to prejudice the assertion by employees of any rights they may have under
such agreement.
Inasmuch as both of the Respondents brought about the illegal preferences
and advantages to union members, they should share in the responsibility. It
will be recommended, that they, jointly and severally, make the Claimants,
Robert Leon Brown, John Brucato, Arthur Cromeyn, Frank Lehman, Milward
Quiney, and all other employees similarly situated, whole for any loss in pay
they or any of them may have suffered by reason of their discriminatory treat-
ment because of their nonmembership in the Union ; and that the Respondent
Company, upon request, make available to the Board its payroll and other rec-
ords to facilitate the computation of back pay.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following:
CONCLUSIONS or LAw
1. Newspaper and Mail Deliverers' Union of New York and Vicinity is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By granting back pay, overtime, and double time, and other preferences to
union employees but not to nonunion employees, the Rockaway News Supply
Company, Inc., has discriminated in regard to the hire and tenure of employment
of John Brucato, Robert Leon Brown, Frank G. Lehman, Arthur Cromeyn, and
Milward Quincy as well as other nonunion employees similarly situated, within
the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise
of their rights as guaranteed in Section 7 of the Act, Rockaway News Supply
Company, Inc., has engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. By executing and giving effect to an illegal union-shop contract Rockaway
News Supply Company, Inc., has assisted the Newspaper and Mail Deliverers'
Union of New York and Vicinity and has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (2) of the Act; and News-
paper and Mail Deliverers' Union of New York and Vicinity has thereby
engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (b) (1) (A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]