Hamilton News Co.

National Labor Relations Board - Board Decisions

Nov 28, 1960

129 N.L.R.B. 770 (N.L.R.B. 1960)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Kahr and Leon Mohill , d/b/a Hamilton News Co. and
John B. Graham, Jr.
Albany Mailers Union , Local No. 26, ITU, AFL-CIO and John
B. Graham, Jr. Cases Nos. 3-CA-1425 and 3-CB-446. Novem-
ber 28, 1960
DECISION AND ORDER
On May 6, 1960, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent Company had engaged in and was engaging in certain
unfair labor practices and recommending that the Respondent Com-
pany cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent Union had not
engaged in any unfair labor practices and recommended dismissal of
the complaint in Case No. 3-CB-446. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief,
and the Respondent Union also filed a brief.
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 Interme-
diate Report, and the entire record in these cases, including the ex-
ceptions and the briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner only insofar as consistent
with our decision herein.
The Trial Examiner concluded, on the basis of the evidence adduced
at the hearing, that the General Counsel had failed to sustain the bur-
den of his case against the Respondent Union. Accordingly, he dis-
missed the complaint insofar as it alleged that the Respondent Union
had violated Section 8(b) (1) (A) and 8(b) (2) of the Act by causing
the Respondent Company to discharge John B. Graham. However,
the Trial Examiner also concluded that the Respondent Company had
violated Section 8(a) (1) and (3) of the Act, basing this conclusion
solely on the Company's failure in its answer to deny the pertinent
allegations of the complaint.' We disagree with the Trial Examiner's
finding of a violation by the Company. In our opinion, the Com-
pany's failure to deny the pertinent allegations in the complaint
should not, under the circumstances, prevail over the failure of the
record developed at the hearing to establish that the Company had,
as a matter of fact, violated the Act.
1 Section 102 20 of the Board 's Rules and Regulations , Series 8 , provides in relevant
part . . any allegation in the complaint not specifically denied or explained in an
answer filed, . shall be deemed to be admitted to be true and shall be so found by
the Board, unless good cause to the contrary is shown."
129 NLRB No. 94.
HAMILTON NEWS CO. 771
Although the Trial Examiner fully accepted the Company's failure
to deny the allegations of the complaint as an admission of its liability
for Graham's discharge, he nevertheless found "unreliable" the testi-
mony of the Company's witnesses and of Graham that Graham was
discharged at the Union's request. This testimony was entirely con-
sistent with the Company 's answer . The result of the Trial Exam-
iner's disposition of this matter is that the Company is found to have
discharged Graham at the request of the Union in violation of Section
8(a) (1) and (3), even though the testimony developed at the hearing
was not deemed adequate to support a finding that the Union had
made such a request. Such a result is clearly inequitable, for it would
impose a backpay order on an employer for discharging an employee
at the behest of a union even though there has been a failure of proof
that the union demanded the discharge.
In the rather unique circumstances of this case, we believe that the
Board would be exalting formalism and placing undue reliance on a
technicality were it to accept the Company's failure to deny certain
allegations of the complaint as adequate grounds for issuance of an
order against the Company. Although at common law a party might
have to stand or fall on his strict adherence to the rules of pleading,
the flexibility of the administrative process permits the relaxation of
pleading requirements where the purposes of the statute and the ends
of justice will be served best. Accordingly, we conclude that the only
equitable resolution of this case is to dismiss the entire complaint.
[The Board dismissed the complaint.]
MEMBERS JENKINS and FANNING took no part in the consideration
of the above Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This consolidated proceeding , with all parties represented,' was heard before
the duly designated Trial Examiner in Albany, New York , on February 23 and
24, 1960, on complaint of the General Counsel and answers of the respective Re-
spondents. The issues litigated were whether Respondent Company ( as the indi-
vidual employers are herein collectively designated ) violated Section 8 ( a)(1) and
(3) of the Act and whether Respondent Union violated Section 8(b)(1)(A) and
(2) of the Act.
Upon the entire record and my observation of the witnesses and upon considera-
tion of briefs , I hereby make the following:
3 Respondent William I{ahr died on January 24, 1959 , shortly before this hearing, and
the record does not indicate the present status respecting the administration of his estate
However , an answer was filed in his and his copartner ' s behalf ( Respondent Mohill) and
their Company was otherwise represented by counsel at this hearing. A compliance hear-
ing can be had, if necessary , to resolve pertinent questions which cannot otherwise be
settled by the parties For purposes of this proceeding , the designation "William Kahr"
will refer to the Individual or his estate.
772
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT COMPANY
William Kahr and Leon Mohill, herein collectively called the Company, have con-
stituted a partnership doing business under the trade name and style of Hamilton
News Co. The Company has its principal office and place of business in Albany,
New York, where it is engaged in the wholesale distribution of newspapers, peri-
odicals, and related products. During the past year (1959), the Company made
interstate purchases exceeding a value of $100,000, but less than $500,000.
Admitting in effect legal jurisdiction in the premises and that the amount of its
aforestated interstate activities meets the current jurisdictional standards of the
Board, the Company contends that such dollar volume is insufficient under the
jurisdictional standards of the Board in effect at the time of the alleged discrimina-
tory discharge of John B. Graham. The complaint alleges, and the Company admits,
that the Company discharged Graham "on or about November 17, 1958," and the
record fixes the date as November 17, 1958. More than a month before said dis-
charges, the Board had publicly announced the adoption of the current jurisdictional
standards,2 and it promulgated these standards by decisional holding on November
14, 1958, in Siemons Mailing Service, 122 NLRB 81. The current jurisdictional
standards were operative at the time of Graham's discharge, and I accordingly find,
without regard to other considerations, that the Company's interstate business satis-
fied both the statutory and the Board's own jurisdictional requirements as of
November 17, 1958. I therefore reject Respondent Company's claim, and I find
that the Company was and is engaged in commerce within Section 2(6) and (7)
of the Act.
II. RESPONDENT LABOR ORGANIZATION INVOLVED
Albany Mailers Union , Local No . 26, ITU, AFL-CIO, herein called the Union
or Local No . 26, is a labor organization within Section 2(5) of the Act.
III. PRELIMINARY PROCEDURAL MATTERS
The Union moves to dismiss the complaint against it on the ground that the charge
in Case No. 2-CB-2567 was not filed and served within the limitations period pre-
scribed in the proviso to Section 10(b) of the Act. This proviso reads, in part, as
follows:
... no complaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such charge is
made ...
The pertinent portions
SEC. 102.111
(a) Charges
* *
SEC. 102.113
of the Board's Rules and Regulations 3 are as follows:
may be served personally or by registered mail ... .
(a) The date of service
in the United States mail
computing the time from
SEC. 102.114
shall be the day when the matter served is deposited
or is delivered in person, as the case may be. In
such date, the provisions of section 102.114 apply.
* * * * *
(a) In comp-ang any period of time prescribed or allowed by these rules,
the day of the act, event, or default after which the designated period of time
begins to run, is not to be included. The last day of the period so computed
is to be included, unless it is a Sunday or a legal holiday, in which event the
period runs until the end of the next day, which is neither a Sunday or a legal
holiday. . . . For the purpose of this section a Saturday on which the Board's
offices are not open for business shall be considered as a holiday, but a half
holiday shall be considered as other days and not as a holiday....
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 Press Release (R-576) October 2, 1958
s Series 8, effective November 13, 1959. These particular provisions are identical to
provisions in the Board's Rules and Regulations, Series 7, which were operative at material
times here, from November 1958 through May 1959.
HAMILTON NEWS CO. 773
(b) When the act or any of these rules require the filing of a motion, brief,
exception, or other paper in any proceeding, such document must be received
by the Board or the officer or agent designated to receive such matter before
the close of business of the last day of the time limit, if any, for such filing....
Accordingly, in order to satisfy Section 10(b), an unfair labor practice charge
respecting an alleged discriminatory discharge on November 17, 1958, must have
been filed and served no later than by the close of business on May 18 , 1959. See
Crosby Construction Co., 93 NLRB 28; The Baltimore Transfer Company of Balti-
more City, Inc., 94 NLRB 1680.
The Board has no Regional Office in Albany, New York, where the Company,
Local No. 26, and Graham are located. Albany is serviced by the Board 's Second
Regional Office in New York City, which is approximately 150 miles from Albany.'
Graham filed charges in the CB portion of this consolidated case on May 11, 1959,
and these charges were served on or about May 12, 1959. Instead of naming Local
No. 26 as Respondent labor organization, the May 11 charge in Case No. 2-CB-2567
incorrectly designated, and was served upon, Albany Typographical Union Local
No. 4, a sister local of Local No. 26. Local No. 26 and Local No. 4 are the only
ITU locals located in Albany, and Local No. 4 is the only ITU local listed in the
Albany telephone directory. Allen Loveday is president of Local No. 4; Ralph
Cippolo and his brother, John Cippolo, are president and secretary-treasurer, respec-
tively, of Local No. 26. Loveday called John Cippolo shortly after receiving the
May 11 charge, and he in effect informed Cippolo that Graham had charged Local
No. 4 with having caused Respondent Company to discharge Graham on Novem-
ber 17, 1958. Respondent Local No. 26 had been in contractual relationship for
several years with Respondent Company at the time and Graham had been an
employee of Respondent Company and a member of Local 26 fora 2-year period
immediately preceding his discharge. So far as appears , Local No. 4 is in no way
involved with Respondent Company. Loveday's call plainly put Respondent Local
No. 26 on notice that Graham was instituting an unfair labor practice action against it
because of the November 17 discharge.
The Regional Office meanwhile became aware of the incorrect designation of
the Respondent labor organization in the May 11 CB charge,5 and it accordingly
sent five duplicate originals of a corrected charge to Graham for .the latter' s signature;
Graham received these corrected forms on Friday, May 15. Charge forms contain
a box for the insertion of the filing date, with instructions that such information is to
be inscribed by the Regional Office; the corrected forms sent to Graham did not
contain a filing date. Graham signed the five charge forms and mailed four to the
Regional Office on May 15. The next day, May 16, Graham personally delivered
the fifth copy .to Ralph Cippolo. On Monday, May 18,8 the Regional Office received
the newly signed charges mailed by Graham; the Regional Office inscribed a May
18 filing date thereon and the next day, May 19, it mailed one of them to Respond-
ent Local No. 26.
Respondent Union (Local No. 26) had notice of the incorrect charge and then
received the corrected charge by personal service within the 6-month period. And
it also appears that the charge was timely filed. Contrary to Respondent Union's
contention, there is "no directive, implicit or otherwise, that the filing and service be
made in the same order as those words appears in the Act." The Baltimore Transfer
Company of Baltimore City, Inc., 94 NLRB 1680, 1681. I conclude that the charge
in Case No. 2-CB-2567 was timely served and timely filed, and I accordingly deny
the motion to dismiss on such basis. Cf. Peterson Construction Company, Inc., 106
NLRB 850, 851.
IV. THE UNFAIR LABOR PRACTICES
Respondent Company discharged John Graham, Jr., on November 17, 1958, and
rehired him on May 20, 1959. The General Counsel alleges that Respondent Union
caused the Company to discharge Graham because Graham was not a member in
good standing in the Union. The Company admits 7 discharging Graham because
he was not a union member and because Respondent Union "caused, compelled, re-
quired'and instructed" the Company to do so. I accordingly conclude that the Corn-
4 Albany will be within the Buffalo Regional Office of the Board, effective May 2. 1960.
5 The CA charge against the Company contains the same erroneous designation of labor
organization.
6 The Regional Office Is closed on Saturday.
7 By failure of its answer to deny material allegations of the complaint. See Section
102 20, Board's Rules and Regulations, Series 8
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany has thereby violated Section 8(a)(1) and (3) of the Act, as alleged The
Union denies causing Graham's discharge and it further asserts that the Company
terminated Graham for absenteeism.
The Company and the Union have been parties to a series of collective-bargaining
agreements tor many years. The contract, which was effective during material times
here, does not contain a union-shop or any similar provision, and the record shows
that there are nonunion employees in the unit covered by this contract.
Graham entered Respondent's employ in June 1956. He voluntarily joined the
Union in December 1956, without any solicitation by union or company representa-
tives. Graham stopped paying union dues. in 1957. The union bylaws provide,
in effect, that a member is automatically suspended upon a 4-month delinquency.
The Union nevertheless carried Graham on its roster since 1957, and it paid Graham's
per capita tax to the International during this entire period. Sometime in October
1958, Secretary-Treasurer John Cippolo told Graham that he would be suspended
from union membership unless he paid 2 months' dues 8 by November 10; Graham
testified, and Cippolo denied, that Cippolo also said on this occasion that Graham
would not be working for the Company unless Graham made such payment.
Graham did not pay the dues, and'Cippolo noted Graham's suspension on union
records on or about November 10.
Graham had been either laid off or discharged in or about March 1958 for absen-
teeism, and the Union interceded for Graham and secured his reinstatement on that
occasion even though-as already indicated-Graham was long delinquent at the
time in his dues payments to the Union. John Cippolo testified without contra-
diction, that Graham's foreman, Edward Cox, frequently complained to Cippolo
concerning Graham's persistent absenteeism and he testified that Cox also asked
Cippolo on these occasions how long the Union would continue to protect Graham.
According to Cippolo's testimony, Cox made such complaint to Cippolo on No-
vember 10, 1958; Cippolo further testified that he told Cox on that occasion that
Graham was suspended from the Union but that the Union would continue to repre-
sent and protect Graham should Graham file any grievances against the Company.9
Graham testified that he answered the telephone 'at work on November 17, that
John Cippolo was calling, and that Cippolo recognized Graham's voice. According
to Graham's testimony, Cippolo inquired whether Graham was going to pay his union
dues and Graham replied he would not. Graham further testified that Cippolo
then asked to speak with Foreman Cox and that Graham then heard Cox say to
Cippolo, as part of Cox's telephone conversation with Cippolo, that "if that is the
way it has to be, that is the way it has'to be " Graham testified that Cox then went
into the company office and directly returned to the shop area and that Cox then
dialed the shop telephone and asked to speak with Company Manager Charles
Fruscione -and that Cox then told the person on the other end, presumably Fruscione
according to Graham's testimony, that he (Cox) was told to get rid of Graham.
Cox hung up the telephone and then told Graham, according to Graham's testi-
mony, that "this is it," and in effect discharged Graham.
It appeared, on cross-examination of Graham, that Graham had executed an
affidavit on May 19, 1959, during the investigation of the case and that Graham
stated in his 'affidavit that it was Cox who answered the telephone on the afore-
mentioned occasion of Cippolo's purported call and that Cox thereupon called
Graham to the telephone. The affidavit then later recites that Graham was not cer-
tain whether he or Cox first answered the telephone on that occasion. Graham then
testified in purported explanation of the inconsistency, that in reading over the
affidavit he recalled that was he, and not Cox, who had answered the telephone.
Cox testified 10 that Graham answered the telephone call from Cippolo on No-
vember 17 and that Graham told Cox the call was for Cox. Cox testified that he
then spoke to Cippolo and Cippolo inquired why Graham had not been discharged.
Cox testified that, upon completing this conversation with Cippolo, he (Cox) went
into Fruscione's office and informed Fruscione of Cippolo's call and that Fruscione
said, "if that is .the way it's supposed to be, that is the way you will do it," and that
he (Cox) thereupon returned to the shop and discharged Graham. Cox further
testified that during the period from November 10 (when Cippolo advised Cox of
Graham's suspension) until Cox told Fruscione of Cippolo's purported call on No-
8 This was much less than Graham's dues arrearages
8 Cox testified that Cippolo advised him at a union meeting on November 10, of Graham's
suspension There was no union meeting on that date , and I mention this only in con-
nection with credibility matters hereinafter discussed.
10 Cox was called as a witness for the General Counsel . Cox is a member of the Union.
HAMILTON NEWS CO. 775
vember 17, he (Cox) did not recall discussing the union suspension of Graham with
Fruscione.
Fruscione was called and examined by the General Counsel under Rule 43(b) of
the Federal Rules of Civil Procedure.ii Fruscione testified on direct examination
that Cox came into his office on November 17 and advised him that the Union had told
Cox to discharge Graham and that Fruscione then discussed the matter with one of
the Respondent partners, following which he instructed Cox to discharge Graham if
that was the Union's wish. Fruscione testified on cross-examination that the decision
to discharge Graham was made several days after Cox had informed Fruscione of the
Union's requested discharge of Graham. Fruscione further testified that his men-
tioned discussion with Cox did not concern any telephone call made by the Union,
but that the conversation dealt only with the Union's purported request as To Graham;
Fruscione's affidavit executed during the investigation of the case states that Cox
had advised him of Cippolo's "call."
John Cippolo testified that he called the Company on November 17 and that his
only conversation on that occasion was with Cox concerning private matters, un-
necessary to state here, which were unrelated to Graham or to any union affairs.
Cippolo testified that he did not learn of Graham's discharge until at least a month
after the event, and it also appears that Graham did not file a grievance with the
Union concerning his discharge.
The Union contends, as already stated, that the Company discharged Graham for
absenteeism and other unsatisfactoriness and Union President Ralph Cippolo testi-
fied without contradiction that Cox had frequently complained to him (Cippolo)
about such absenteeism during the months immediately before the discharge and that
Cox had mentioned in such connection that Graham was driving,a cab Graham did
operate a cab for another employer and at first he testified that he drove the cab only
once a week, on Sunday nights, during the period before his November discharge.
Later he testified that he drove the cab once or twice a week, but that it did not
interfere with his work at the shop. It is recalled that Graham had been laid off
for absenteeism on March 1958; the record shows that Graham's absenteeism con-
tinued during the period immediately before his discharge.12 Fruscione testified that
Graham was an "average" worker and that he, Fruscione, was aware of Graham's
absenteeism . Fruscione also testified that he reemployed Graham without discussing
the matter with the Union and that, so far as he knows, the Union has not opposed
such reemployment.
Concluding Findings
Section 10(c) provides that findings of unfair labor practices may be made only
where supported by a preponderance of the record as a whole. Suspicion is not
enough for these purposes . Respondent Company in effect conceded in its answer
that it discharged Graham for union reasons at Respondent Union's behest, and
there thus was no trial issue in that regard in the General Counsel's case against the
Company. The Union did contest its responsibility for Graham's discharge, and
the General Counsel is therefore obliged to establish such union liability by record
preponderance.
I have set forth testimony of all witnesses respecting the November 17 and related
events, particularly in regard to the inconsistencies of the Cippolo-Cox-Graham
telephone conversation , and the General Counsel offered the testimony of Graham,
Cox, and Fruscione to establish what he considers the historical facts under con-
sideration. I am mindful , of course , that even honest witnesses may give testimony
which varies in some respect from the testimony of other honest witnesses and
That an honest witness may himself be inconsistent in his own testimony. The
inconsistencies in and between the testimonies of the three -named witnesses are
material ones in my judgement , and sufficiently so as to render all their testimony
unreliable in this connection . This circumstance , together with the fact that I have
no reason to discredit the testimony of John and Ralph Cippolo , leads me to con-
clude that the General Counsel has not sustained the burden of his case against the
Union.
"It was clear at this point in the proceedings that, apart from its jurisdictional con-
tentions mentioned above, the Company had conceded the gravamen of the complaint
against it and that its further interest in the case was to establish the joint liability of
the Union for Graham's backpay Fruscione, in other words, was not adverse to the
General Counsel.
v During the week ending November 2, 1958, Graham was absent 1 day ; October 26,
3 days ; October 19, 1 day ; October 12, 1 day ; October 5, 1 day ; Septembei 28, 2 days ;
September 21, 4 days ; September 14, the whole week ; and September 7, 1 day.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Again , because of the unusualness of the instant situation 13 in finding against the
Company on the pleadings and for the Union on the entire record made, it should be
stated that it is not enough to raise suspicious circumstances in order to support an
adverse finding against a party respondent ; nor is it necessary that I sustain a re-
spondent party 's affirmative defense contentions as an exclusive alternative to finding
such party to have violated the Act . All I find and all I need find here is that the
contentions of the General Counsel are not supported by a preponderance of reliable
testimony.
I accordingly conclude in Case No . 2-CA-6599 that Respondent Company dis-
criminatorily discharged Graham for union reasons ; and, in Case No. 2-CA-6599,
I conclude that General Counsel has failed to prove Respondent Union responsible
for Graham 's discharge.
V. THE REMEDY
Having found that Respondent Company has engaged in unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take affirmative
action to effectuate the policies of the Act.
Respondent Company has reinstated Graham but without otherwise making him
whole. I shall accordingly recommend that the Company make Graham whole for
any loss of pay he may have suffered by reason of his discharge by paying him a
sum of money equal to the amount he would have earned from the date of his dis-
charge to the date of offer of reinstatement less his net earnings 14 to be computed
on a quarterly basis in the manner established by the Board in F. W . Woolworth
Company, 90 NLRB 289 , 291-294 . Earnings in one quarter shall have no effect
upon the backpay liability for any other such period . It will also be recommended
that Respondent Company make available to the Board , upon request , payroll and
other records to facilitate checking the backpay due. F . W. Woolworth Company,
supra.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Respondent Local No. 26 is a labor organization within Section 2(5) of the Act.
2. Respondent Company is engaged in commerce within Section 2(6) and (7)
of the Act.
3. Respondent Company has violated Section 8(a)(3) and (1) of the Act by
discriminatorily discharging John B . Graham, Jr.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within Section 2(6) and (7) of the Act.
5. The record does not preponderantly establish that Respondent Local No. 26
has violated Section 8 (b) (1) (A) and (2) of the Act.
[Recommendations omitted from publication.]
. 21 Cf United Brick a4 Clay Workers of America , et al. v. Deena Artioare, Inc., 198 F. 2d
637, 642 ( C.A. 6), cert. denied 344 U S 897.
14 Crossett Lumber Company, 8 NLRB 440, 497-498.
Holland Manufacturing Company and United Steelworkers of
America, AFL-CIO. Case No. 22-CA-525. November 28, 1960
DECISION AND ORDER
On July 20, 1960 , Trial Examiner Phil Saunders issued his Inter-
mediate, Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto . Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
129 NLRB No. 95.