Hearst Publishing Co., Inc.

National Labor Relations Board - Board Decisions

May 6, 1960

127 N.L.R.B. 591 (N.L.R.B. 1960)

HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 591
Hillbro Newspaper Printing Company, Division of Hearst Pub-
lishing Company, Inc. and Marcellus B. Wiesler
Los Angeles Mailers Union No. 9, International Typographical
Union and Marcellus B. Wiesler. Cases Nos. 21-CA-.603 and
21-CB-844. May 6, 1960
DECISION AND ORDER
On November 18, 1959, Trial Examiner Maurice M. Miller issued
his Intermediate Report in the above-entitled consolidated proceed-
ings, finding that the Respondents had engaged in and were engaging
in certain unfair labor practices, and recommending that they cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. The Trial
Examiner further found that the Respondents had not engaged in
certain other unfair labor practices alleged in the complaint. There-
after, the Charging Party and the Respondents i filed exceptions to
the Intermediate Report and briefs in support thereof.2
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions I and briefs, and the entire record in the
case and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations'
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:
' Los Angeles Mailers Union No 9 , ITU, was joined in its exceptions and brief by
Inteinational Typographical Union which intervened in this proceeding on November 14,
1957
2 The requests by Respondent Rillbro Newspaper Printing Company; Respondent Los
Angeles Mailers Union No 9, ITU, the Intervenor, International Typographical Union;
and the Charging Party for oral argument is hereby denied as the record, exceptions, and
briefs in our opinion adequately present the positions of the parties
3In the absence of any exceptions , we adopt, pro forma, the Trial Examiner 's finding
that it was unnecessary to pass upon the allegation of the complaint that the contract in
dispute herein was invalidated by the failure of Los Angeles Mailers Union No. 9 to
comply with the then existing Section 9(f), (g), and (h) of the Act
4 Inasmuch as we affirm herein the Trial Examiner ' s conclusion that the Charging
Party was not subjected to it pattern of "nerve warfare" legally attributable to the
Respondent Los Angeles Mailers Union No 9 , we do not deem it necessary to pass upon
the legality or illegality of such conduct where the evidence establishes it as an express
policy designed and implemented by a union.
127 NLRB No 71.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The Respondent, Hillbro Newspaper Printing Company, Divi-
sion of Hearst Publishing Company, Inc., Los Angeles, California, and
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) The maintenance, effectuation, or enforcement of any provisions
in a contract with Los Angeles Mailers Union No. 9, International
Typographical Union, pursuant to which employment in the Respond-
ent Hillbro's mailroom is conditioned upon union membership, prefer-
ence in employment is accorded to union members, or the control and
maintenance of a contractually established employment seniority and
priority system is delegated to the Respondent Union, except where,
and to the extent that, such conditions of employment may be lawfully
established by an agreement in conformity with Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
(b) The maintenance, effectuation, or enforcement of any provisions
in a contract with the Respondent Union which require mailroom fore-
men or superintendents, who do the hiring, to be union members,
unless and until such foremen or superintendents have been directly
informed by the Respondent Union that they are not obligated to
comply with 'specified provisions of the General Laws of the Interna-
tional Typographical Union which call for the maintenance of closed-
shop conditions or union preferential hiring.
(c) Interference with, restraint, or coercion of its employees or
applicants for employment, in any like or related manner, in the
exercise of their right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their
own free choice, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid and protection,
or to refrain from any and all such activities, except to the extent that
such rights 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, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act, as amended :
(a) Specify, in its current contract with the Respondent Union,
either the specific lawful provisions of the General Laws of the Inter-
national Typographical Union which are incorporated therein, or the
specific provisions which are not incorporated because they are in con-
flict with the Act.
(b) Notify all of its mailroom employees that they are not bound to
follow the particular provisions of the General Laws of the Interna-
tional Typographical Union which call for the maintenance of closed-
shop conditions or union preferential hiring. Such notice shall be in
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 593
addition to that conveyed by the posting of the notices specified in
paragraph A 2 (c) of this Order.
(c) Post at its place of business in Los Angeles, California, copies
of the appropriate notice attached hereto marked "Appendix A." I
Copies of the notice, to be furnished by the Regional Director for the
Twenty-first Region, shall be posted immediately upon their receipt,
after being duly signed by Respondent Hillbro's representative. They
shall remain posted for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent Hillbro to
insure that these notices are not altered, defaced, or covered by any
other material.
(d) Post at the same places and under the same conditions as set
forth in (c), above, as soon as they are forwarded by the Regional
Director, copies of the notice, signed by a representative of the Re-
spondent Union, which is attached hereto marked "Appendix B."
(e) File with the Regional Director for the Twenty-first Region
within 10 days from the date of this Order, a statement, in writing,
setting forth the manner and form in which it has complied herewith.
B. The Respondent, Los Angeles Mailers Union No. 9, Interna-
tional Typographical Union, Los Angeles, California, and its officers,
representatives, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) The maintenance, effectuation, or enforcement of any pro-
visions in a contract with Hillbro Newspaper Printing Company,
Division of Hearst Publishing Company, Inc., pursuant to which
employment in Respondent Hillbro's mailroom is conditioned upon
union membership, preference in employment is accorded to union
members, or the control and maintenance of a contractually estab-
lished employment seniority and priority system in the Respondent
Employer's mailroom is delegated to the Respondent Union exclu-
sively, except where, and to the extent that, such conditions of
employment may be lawfully established by an agreement in con-
formity with Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(b) The maintenance, effectuation, or enforcement of any provision
in a, contract with Respondent Hillbro which requires mailroom fore-
men or superintendents, who do the hiring, to be union members,
unless and until said foremen or superintendents have been directly
informed by the Respondent Union that they are not obligated to
comply with specified provisions of the General Laws of the Inter-
'In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to it Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
560940-61-vol. 127-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
national Typographical Union which call for the maintenance of
closed-shop conditions or union preferential hiring.
(c) Restraint or coercion of the Respondent Hillbro's employees,
or applicants for employment, in any like or related manner, in the
exercise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives
of their own free choice, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid and
protection, or to refrain from any and all such activities, except to
the extent that such rights 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, as modified by the Labor-
Manag'ment Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act, as amended :
(a) Specify, in its current contract with the Respondent Hillbro,
either the specific lawful provisions of the General Laws of the Inter-
national Typographical Union which are incorporated therein, or
the specific provisions which are not incorporated because they are in
conflict with the Act.
(b) Notify all of its members in Respondent Hillbro's employ
that, in connection with their employment in the mailroom of the
respondent employer, they will not be bound to follow the specific
provisions of the General Laws of the International Typographical
Union which call for the maintenance of closed-shop conditions or
union preferential hiring. Such notice shall be in addition to that
covered by the posting of the notices specified in paragraphs B 2(c)
and (d) of this Order.
(c) Post at its business office in Los Angeles, California, copies of
the appropriate notice attached hereto marked "Appendix B."'
Copies of the notice, to be furnished by the Regional Director for the
Twenty-first Region, shall be posted immediately upon their receipt,
after being duly signed by Respondent Union's representative. They
shall remain posted for 60 days thereafter, in conspicuous places, in-
cluding all places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent Union to insure that
these notices are not altered, defaced, or covered by any other
material.
(d) Mail to the Regional Director for the Twenty-first Region
additional signed copies of the appropriate notice marked "Appendix
B," to be posted by Respondent Hillbro at its place of business in Los
Angeles, California, as provided above. Copies of this notice, to be
G See footnote 5.
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 595
furnished by the Regional Director, shall be returned to him forth-
with for appropriate disposition, after being signed by Respondent
Union's representative.
(e) File with the Regional Director for the Twenty-first Region,
within 10 days from the date of this Order, a statement, in writing,
setting forth the manner and form in which it has complied herewith.
C. Respondent Hillbro Newspaper Printing Company, Division of
Hearst Publishing Company, Inc., its officers, agent, successors, and
assigns, and Respondent Los Angeles Mailers Union No. 9, Inter-
national Typographical Union, its officers, representatives, agents,
successors, and assigns, shall, jointly and severally, reimburse the
mailroom employees of Respondent Hillbro and persons formerly
employed in Respondent Hillbro's mailroom, for moneys illegally
exacted from them, in the manner and to the extent set forth in the
"Remedy" section of the Intermediate Report, pursuant to the con-
tractual union-security provisions herein found violative of the Act,
as amended, or pursuant to any superseding agreements between the
Respondents designated, with similar or identical union-security
provisions.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent Hillbro Newspaper Print-
ing Company, Division of Hearst Publishing Company, Inc., has
committed violations of the Act other than those specifically found
herein.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent Los Angeles Mailers
Union No. 9, International Typographical Union, has committed
violations of the Act other than those specifically found herein.
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, as amended, we hereby notify our employees that :
WE WILL NOT maintain, effectuate, or enforce any provisions in
a contract with Los Angeles Mailers Union No. 9, International
Typographical Union, pursuant to which employment in our
mailroom is conditioned upon union membership, preference in
employment is accorded to union members, or the control and
maintenance of a contractually established employment seniority
and priority system is delegated to the Union designated, except
where, and to the extent that, such conditions of employment may
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be lawfully established by an agreement in conformity with Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL NOT maintain, effectuate, or enforce any provisions
in a contract with the Union named above which requires mail-
room foremen or superintendents, who do the hiring, to be union
members, unless and until such foremen or superintendents have
been directly informed by the Union named above that they are
not obligated to comply with specified provisions of the General
Laws of the International Typographical Union which call for
the maintenance of closed-shop conditions or union preferential
hiring.
WE WILL NOT interfere with, restrain, or coerce our employees
or applicants for employment, in any like or related manner, in
the exercise of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through repre-
sentatives of their own free choice, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid and protection, or to refrain from any and all such
activities, except to the extent that such rights 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, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILT, specify in our current contract with the Union named
above, either the specific lawful provisions of the General Laws of
the International Typographical Union which are incorporated
therein or the specific provisions which are not incorporated
therein because they are in conflict with the Act.
AVE WiL L notify all of our mailroom employees that they are
not bound to follow the particular provisions of the General Laws
of the International Typographical Union which call for the
maintenance of closed-shop conditions or union preferential
hiring.
AVE WILL refund to all of our present and former mailroom em-
ployees, in accordance with the Board's direction, the initiation
fees, periodic dues, or other moneys illegally exacted from them,
which they have paid to Los Angeles -Mailers Union No. 9, Inter-
national Typographical Union.
All our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization, except
to the extent that this right may be affected by an agreement in con-
formity with Section 8(a) (3) of the National Labor Relations Act
IIILLBRO NEWSPAPER PRINTING COMPANY, ETC. 597
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
HILL13RO NEWSPAPER PRINTING CODIPANY,
DIVISION OF HEARST PUl3LISIIING CObI-
PANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF Los ANGELES MAILERS UNION No. 9, IN-
TERNATIONAL TYPOGRAPHICAL UNION, AND TO EMPLOYEES OF HILL-
BRO NEWSPAPER PRINTING COMPANY, DIVISION OF HEARST PUB-
LISTIING CO_IIPANY, INC.
Pursuant to a becision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT maintain, effectuate, or enforce any provisions
in a contract with Hillbro Newspaper Printing Company, Divi-
sion of Hearst Publishing Company, Inc., pursuant to which
employment in the mailroom of that Employer is conditioned
upon union membership, preference in employment is accorded
to union members, or the control and maintenance of a con-
tractually established employment seniority and priority system
in the mailroom of the Employer designated is delegated to our
Union, except where, and to the extent that, such conditions of
employment may be lawfully established by an agreement in
conformity with Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT maintain, effectuate, or enforce any provisions
in a contract with Hillbro Newspaper Printing Company, Divi-
sion of Hearst Publishing Company, Inc., which requires mail-
room foremen or superintendents, who do the hiring, to be
members of our Union, unless and until such foremen and superin-
tendents have been directly informed by our Union that they are
not obligated to comply with specified provisions of the General
Laws of the International Typographical Union which call for
the maintenance of closed-shop conditions or union preferential
hiring.
WE WILL NOT restrain or coerce mailroom employees of the
Employer designated, or applicants for such employment, in any
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
like or related manner, in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own free choice,
and to engage in other concerted activity for the purpose of
collective bargaining or other mutual aid and protection, or to
refrain from any and all such activities, except to the extent that
such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL specify,' in our current contract with the Employer
designated, either the specific lawful provisions of the General
Laws of the International Tyographical Union which are incor-
porated therein or the specific provisions which are not incorpo-
rated therein because they are in conflict with the Act.
WE WILL notify all of our members that, in connection with
their employment in the mailroom of the Employer designated,
they will not be bound to follow the particular provisions of the
General Laws of the International Typographical Union which
call for the maintenance of closed-shop conditions or union pref-
erential hiring.
IVE WILL refund to all present employees or former employees
in the mailroom of the Employer designated, in accordance with
the Board's direction, the initiation fees, periodic dues, or any
other moneys illegally exacted from them, which they have paid
to our Union.
Los ANGELES MAILERS UNION No. 9, INTER-
NATIONAL TYPOGRAPHICAL UNION,
Labor Organization.
Dated------ ---------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days froin its date, and must
not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed and served, the General Counsel
of the National Labor Relations Board caused the Regional Director of the Board's
Twenty-first Region, at Los Angeles , California, to issue successive complaints against
Los Angeles Mailers Union No. 9, International Typographical Union , designated as
the Respondent Union herein , and Hillbro Newspaper Printing Company, Division
of Hearst Publishing Company, Inc ., to be designated as the Respondent Hillbro in
this report . These complaints were issued and served on October 24, 1957, and
October 28, 1957, respectively . Within a few days , International Typographical
Union, to be designated as the International herein , filed a motion to intervene, with
respect to the case against its subordinate local. Thereafter , on November 8, 1957,
each complaint was amended . Later, International 's motion to intervene was granted.
And each of the Respondents subsequently filed answers.
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 599
Thereafter, on October 16, 1958, the Regional Director issued amended com-
plaints against the Union and Respondent Hillbro; simultaneously, he issued an
order of consolidation and a notice of hearing with respect to the cases. In behalf
of Respondent Hillbro and the Union, new answers were duly filed The jurisdic-
tional allegations of each amended complaint were conceded; in each case, also,
certain factual allegations of the General Counsel were admited, but the commis-
sion of unfair labor practices was denied.
Pursuant to notice, a hearing with respect to the issues was held at Los Angles,
California, on December 8 and 9, 1958, and on various dates between February 24
and March 3, 1959, both dates inclusive, before the duly designated Trial Examiner.
The General Counsel, Hillbro, and the Respondent Union were represented by
counsel; the complainant, Marcellus B. Wiesler, was also represented by an attorney.
Each of the parties was afforded a full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence pertinent to the issues. At the
outset, counsel for the Respondent Union moved that certain allegations set forth
in the amended complaints, with respect to the legality of the contractual relationship
between the Respondents, be dismissed or, alternatively, that any hearing with respect
to the issues raised in that connection be continued, until the issuance of a Board
decision with respect to the same issues before the Agency for determination in other
cases. The motion was denied. At the close of the hearing, the issues important
enough to brief were outlined for the guidance of counsel.
Briefs subsequently filed in behalf of the General Counsel and each Respondent
have been received; they have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
The Business of the Respondent Hillbro
Respondent Hillbro is a division of Hearst Publishing Company, Inc., a Delaware
corporation. At all times material in this consolidated matter it has maintained
an office and publishing plant in Los Angeles, California, together with various
other places of business, warehouses, and similar facilities; it is now engaged in,
and at all times material has been continuously engaged in, the publication of daily
newspapers at its Los Angeles plant and other places of business. During the 1958
calendar year Respondent Hillbro, in the course and conduct of its operations as a
newspaper publisher, held membership in or subscribed to various interstate news
services; these included, among others, United Press, Associated Press, and Interna-
tional News Service. The newspapers published by the Respondent advertised
various nationally sold products, which included, among others, automobiles, air-
planes, and appliances. Its gross revenue from publishing operations exceeded
$1.000,000 during the year indicated.
Respondent Hillbro and the Union have conceded the status of the former as an
employer engaged in commerce, within the meaning of Section 2(6) and (7) of the
Act, as amended. In the light of these concessions, and on the basis of the Board's
established jurisdictional policy (see Siemons Mailing Service, 122 NLRB 81, and
related cases) I find the assertion of the Board's jurisdiction in this consolidated case
warranted and necessary to effectuate the statutory objectives
II. THE RESPONDENT UNION
Status as a Labor Organization
Los Angeles Mailers Union No 9, International Typographical Union, is now,
and at all times material has been, a labor organization within the meaning of Section
2(5) of the Act, as amended, which admits certain employees of Respondent Hillbro
to membership.
III. THE UNFAIR LABOR PRACTICES
A. The newspaper agreement
Facts
1. Issues
It is the General Counsel's basic contention that the contract maintained and
effectuated by Respondent Hillboro -and the Union, throughout the period with which
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this consolidated case is concerned, contained certain provisions violative of the Act,
as amended. Specifically, it is argued that certain designated contractual provisions,
when construed together with specific language in the General Laws of the Inter-
national made a part of the agreement in issue by reference, reflected a commitment
by Respondent Hillbro to hire union members on a preferential basis, and to employ
union members only. Additionally, it is charged that Respondent Hillbro, at all
times material, has by contract delegated to the Union the maintenance of the
seniority, priority, and shift-assignment system utilized in its mailroom.
In the amended complaint addressed to Respondent Hillbro, no particular sec-
tions of the agreement which the Respondent and the Union maintained and effectu-
ated, and no particular General Law provisions made a part of that agreement by
reference, are designated as the basis for this contention. The amended complaint
with respect to the Respondent Union, however, does include a specification that cer-
tain contractual clauses, together with various General Law provisions therein cited,
establish a delegation, to the respondent labor organization, of the authority to main-
tain the seniority, priority, and shift-assignment system utilized in Respondent
Hillbro's mailroom.
Finally, reference is made to the fact that the agreement between the Respondents
was made, enforced, renewed, and extended, despite Respondent Union's failure to
satisfy the requirements laid down in Section 9(f), (g), and (h) of the statute, and
despite its resultant failure to receive, from this Agency, notice of its compliance with
the statutory requirements noted.
The General Counsel argues that the participation of each respondent in the
maintenance and effectuation of the agreement described, under the circumstances,
involved interference with, restraint, and coercion of Respondent Hillbro's employees,
and discrimination against them to discourage union membership.
2. The agreement
On September 1, 1955, a trade agreement between Respondent Hillbro and
Respondent Union-now subject to the General Counsel's challenge-became effec-
tive, for a 2-year term. Pursuant to its terms, Respondent Hillbro recognized the
Union as the exclusive bargaining representative of all the employees-journeymen
and apprentices-for whom the agreement purported to establish terms and condi-
tions of employment. The contractual parties agreed that all of the work in
Respondent Hillbro's mailroom would be performed "only" by journeymen and
apprentices. And in this connection, the agreement went on to provide that:
SEC. 3. . . . The Employer agrees to employ or continue in employment
journeymen and apprentices in the mail rooms of the employer in accordance
with the terms of this agreement. Mailers' Union No. 9, whenever called upon,
offers to supply the office with competent, experienced and satisfactory men.
In furnishing such men, the Union agrees to furnish men legally qualified to
work on a straight-time basis. The foregoing shall not affect the payment of
overtime as provided for in Section 23 of this contract. Pending availability
of sufficient number of journeymen and apprentices, the present practice shall
continue.
SEC. 4. (a) The operation, authority and control of the mailing room shalt
be vested exclusively in the office through its representative, the foreman, who
shall be a member of the union. In the absence of the foreman, the foreman-
in-charge shall so function.
(b) The foreman shall have the full power to carry out all the instructions
of the Employer or his representative which are authorized by this contract and
scale without fear of penalty from the union. The union shall not discipline
or intimidate the foreman in any way for carrying out the orders of the Em-
ployer or his representative authorized by this contract and scale Any order
by the foreman which is questioned by the authorized representatives of the
chapel or the union shall be produced in writing within a reasonable length of
time. .
SEC. 5. Hiring. (a) Foreman shall hire all employees for mailroom opera-
tions. Applications for work must be made to the foreman who, as the repre-
sentative of the office, is the only person having the authority of employ journey-
men in the mailroom. Journeymen are defined as:
(1) Persons who prior to the effective date hereof worked as such in the
Employer's mailing rooms.
(2) Persons who have completed approved apprentice training as provided
in this contract, or have passed a qualifying examination under procedures
heretofore recognized by the union and the Employer.
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 601
(3) Persons who have passed an examination recognized by both parties to
this contract, and have qualified as journeymen in accordance therewith.
(b) Persons seeking to qualify as journeymen shall be given an examination
under procedures established by the parties hereto (or the Joint Standing Com-
mittee) by impartial examiners qualified to judge journeymen competency,
selected by the parties hereto (or the Joint Standing Committee). In the event
agreement cannot be reached on the standards or procedures to be followed, or
the examiners to conduct such examination, the dispute shall be submitted to
______________ whose decision shall be final and binding on the parties. In
hiring new journeymen employees, the foreman may not exclude as candidates
for employment any individuals who have established competency as journey-
men, but must recognize priority as follows.
First, Regular situation holders,
Second, Other journeymen who have worked in the mailing room;
Third, Individuals concerning whose competency as journeymen the foreman
has no reason for doubt or persons who have registered for employment after
having passed the examination herembefore mentioned .
SEC. 9. Both parties agree that their respective rights and obligations under
this contract will have been accorded by the performance and fulfillment of the
terms and conditions thereof and that the complete obligation of each to the
other is expressed herein. It is understood and agreed that the General Laws
of the International Typographical Union, in effect January 1, 1956, not in
conflict with this contract, or with federal or state law, shall govern relations
between the parties on conditions not specifically enumerated herein. It is
further understood and agreed that local union laws not affecting wages, hours
or working conditions and the General Laws of the International Typographical
Union shall not be subject to arbitration.
The last-quoted section of the trade agreement now under consideration, it will be
noted, refers to a consensual commitment by the parties that the General Laws of
the International, effective January 1, 1956, and "not in conflict with this contract,
or with federal or state law" would govern their relationship on conditions not
specifically enumerated in the agreement. In this consolidated case, the General
Counsel has cited certain provisions of the General Laws which this contractual
language allegedly made a part of the trade agreement by reference. And it is al-
leged that the contractual provisions previously noted, taken together with the desig-
nated portion of the General Laws incorporated by reference, constitute an agree-
ment under which Respondent Hillbro is required to hire Respondent Union's
members on a preferential basis, and to employ union members only. The specific
language of the General Laws cited by the General Counsel in this connection is set
forth as follows:
ART. III, SEC. 12. It is the unalterable policy of the International Typo-
graphical Union that all composing and mailing room work . . belongs to and
is under the jurisdiction of the International Typographical Union. Subordinate
Unions are hereby directed to reclaim jurisdiction over and control of . . .
[such] work . .. now being performed by non-members
ART. V, SEC. 10. All persons performing the work of foremen or journeymen
.. . must be active members of the local union of their craft . .. .
ART. X, SEC. 1. Persons considered capable as substitutes by foreman shall
be deemed competent to fill regular situations, and the substitute oldest in con-
tinuous service shall have prior right in the filling of the first vacancy. . . .
* * * *
ART X, SEC. 2. Subordinate unions shall establish a system for registering
and recording priority standing of members in all chapels . . . . The priority
standing of a member shall stand as recorded.
* * 4 k .F
ART. X, SEC. 6. Available priority substitute competent to perform the work
must be employed on any new situation created because of the absence of a
situation holder . . . .
The General Counsel has alleged, and each Respondent concedes, that the Respond-
ent Union has never received, from this Agency, a notice of compliance with the
requirements laid down for labor organizations in Section 9(f), (g), and (h) of the
Act, as amended. It would seem to follow, therefore-and I find-pursuant to the
General Counsel's factual allegation, that the trade agreement maintained and ef-
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fectuated by Respondent Hillbro and the Union between September 1, 1955, and
August 31, 1957, was "made" on or about its effective date, and effectuated there-
after, absent any such notice of compliance within the 12-month period prior to its
execution.
It is also alleged within the amended complaint addressed to Respondent Hillbro,
that the trade agreement in issue has been renewed and extended-presumably sub-
sequent to the expiration of its original term-absent any attempt on Respondent
Union's part to achieve compliance with Section 9(f), (g), and (h) of the statute,
and in spite of the Union's failure to receive from the Board a notice of compliance
with respect to the statutory provisions noted. The present fecord, however, is
silent with respect to any renewal or extension of the challenged trade agreement;
the Respondents made no concessions in that connection, and no evidence with re-
spect to subsequent agreements was adduced
Analysis and Conclusions
1. The newspaper agreement as a union-security contract
Upon the entire record, considered in the light of established Board decisional
doctrine, I find merit in the General Counsel's contention that the labor contract
now under consideration established conditions of employment proscribed by the
statute.
In the agreement's first section, the group of employees covered was defined to
include journeymen and apprentices. And its second section provided that work in
Respondent Hillbro's mailroom would be performed "only" by such journeymen
and apprentices. (It may be noted, in this connection, that section 17 of the contract
contained a description of mailroom work in detail, and reaffirmed the prior com-
mitment of the parties that no "persons" other than competent journeymen and
apprentices would be allowed to perform such work.) The third section of the
agreement consistently reflected Respondent Hillbro's affirmative commitment to
employ journeymen and apprentices for mailroom work, or to continue them in
employment.
These contractual provisions must be read, of course, together with the General
Laws provision-specifically, article V, section 10, previously noted-that all persons
assigned to work as journneymen "at any branch of the printing trade" must be
active members of the local union of their craft (In this connection, reference
should also be made to article III, section 12, of the General Laws, which affirmed
the "unalterable policy" of the International that all mailroom work falls within its
jurisdiction, and went on to direct subordinate unions to reclaim jurisdiction over
such work performed by "non-members" of the organization. In other Board cases
involving subordinate locals of the International, within the mailers' craft, reference
has been made to several additional General Law provisions which reaffirmed the
International requirement that mailroom work must be done by members of the
organization. See, particularly, article VII, section 1, article VII, section 2, and
article VIII, section 1, of the General Laws, noted. News Syndicate Company, Inc,
122 NLRB 818. Since these provisions, however, have not been cited expressly, as
relevant to the establishment of unlawful union-security conditions in the present
consolidated case, no additional determination with respect to their propriety under
the statute, seems to be necessary ) The contract under consideration, read in
conjunction with the General Law provisions noted, clearly created unlawful closed-
shop conditions. News Syndicate Company, Inc, supra. And I so find.
It is argued, in the Respondent Union's behalf, that any disposition on the Board's
part to accept this conclusion would necessarily be dependent upon its adoption of
the "journeymen" definition in the General Laws of the organization, without regard
to the contractual definition in section 5 of that document. Upon the entire record,
however, this argument must be rejected. It must be conceded, of course, that the
contract's "journeymen" definition contained no language relative to union member-
ship or nonmembership. Nor did the contractual provisions determinative of its
coverage-particularly sections 1, 2, and 17, previously noted-give any indication
that work within Respondent Hillbro's mailroom would be limited to union members
exclusively. The silence of the agreement in this respect would merely warrant a
conclusion, however, that the relevant General Law provisions, noted, embodied
conditions not specifically enumerated therein. They cannot be said to have reflected
a "conflict" with any contractual provisions, within the meaning of Section 9 of the
agreement; instead they must be held to have supplemented the contract's terms.
Thus, pursuant to section 9 of the agreement, noted, these General Law provisions
clearly must be considered to have been part of the agreement, incorporated by
reference.
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 603
Since the General Laws thus incorporated required all journeymen to be active
members of the local union of the craft, the term "journeymen" in the Newspaper
Agreement must be held to refer only to journeymen who are union members. And
despite Respondent Union's contrary contention, noted, we must conclude that the
contractual provision which reflects Respondent Hillbro's agreement to employ only
journeymen-and a limited number of apprentices-in the mailroom warrants
characterization as nothing less than a closed-shop provision.
The reliance of counsel upon the Evans case as a judicial determination with re-
spect to the propriety of the agreement's "journeyman" clauses must likewise be
characterized as unwarranted. Evans v. The International Typographical Union
(American Newspaper Publishers Assn.), 81 F. Supp. 675, 686 (D.C., Ind.). In
that case, Judge Swiegert merely held that contract language which he did not
consider "ambiguous" should not be treated as reflective of discrimination, merely
on the basis of testimony by the International's president with respect to his inten-
tions when negotiating the provision in question; the district judge was not asked
to construe the contractual definition of "journeymen" specifically, in the light of
General Laws of the International made a part of the agreement by reference.
The fact that Respondent Hillbro may have retained as employees two mailroom
workers, contractually qualified as journeymen, who were not required to maintain
union membership, cannot be considered sufficient to impair the validity of the con-
clusion, noted, that the Newspaper Agreement established closed-shop conditions.
Honolulu Star Bulletin, Ltd, 123 NLRB 395. In the present consolidated case, the
General Counsel alleges that the contractual provisions cited by him are, them-
selves, violative of the statute. This Agency's determination, therefore, must nec-
essarily rest entirely upon the contractual language. Since the contractual provisions
themselves have been found to provide a greater degree of union security than the
statute permits, they must be considered improper regardless of the fact that they
may not have been applied or enforced in every instance. N.L.R.B. v. Gottfried
Baking Co., Inc., et al., 210 F. 2d 772, 780 (C.A. 2); N L.R.B. v. E. F. Shuck Con-
struction Co., Inc., et al , 243 F. 2d 519 (C.A. 9). It is so found.
In Respondent Union's behalf, it is also argued, however, that the Newspaper
Agreement ought to be considered safe from attack, under the statute, because of
its provision that only the General Laws of the International organization "not in
conflict . . with federal or state law" should govern relations between the parties
on conditions not specifically enumerated. And reference is made to section 33 of
the agreement, which included the following language:
SEC. 33. (a) To the best knowledge and belief of the parties, this contract
now contains no provision which is contrary to federal or state law or regula-
tion. Shoi9ld, however, any provisions of this Agreement, at any time during
its life, be held by a court of competent jurisdiction to be in conflict with federal
or state law or regulation, then such provision shall continue in effect only to
the extent permitted.
The Respondent Union insists that it was the intent of the parties, by this language,
to remove from the contract all union hiring or security requirements illegal under
the Act, as amended.
In several cases involving the International and some of its constituents locals,
the Respondent Union's present contention with respect to the effectiveness of this
exculpatory language has been uniformly rejected. News Syndicate Company, Inc,
supra; Honolulu-Star Bulletin, Ltd., supra; International Typographical Union, et al.
(Haverhill Gazette Company, et al.), 123 NLRB 806. For the reasons set forth
at length in these Agency determinations, Respondent Union's contention, must
again be dismissed (The reliance of present union counsel upon the court's decision
in Burlesque Artists Association, v. Hirst Enterprises, Inc., et al., U.S. Dist. Ct.,
E D. Penn. (March 7, 1957), 40 LRRM 2204, as a persuasive determination to the
contrary is misplaced. In that case, contrary to counsel's contention, a contractual
union-security provision which did not provide expressly for a 30-day waiting period
was nevertheless interpreted as legal because its reference to the imposition of union
membership requirements to the extent "permitted" by law was deemed sufficient to
incorporate by reference the limitations upon union security necessary to bring the
provision within the terms of the Section 8(a) (3) proviso. The case did not involve
a union-security provision, illegal on its face, which could only be rendered legal
by the excision of certain unspecified portions of a lengthy document which had
been made part of the disputed provision by reference.) Such a determination does
not reflect a presumption that the Respondents employed language frivolously; it
merely reflects a reasoned conclusion that the language which they did employ can-
not-consistently with the effectuation of statutory objectives-be considered suffi-
cient to preserve their agreement's legality.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elsewhere in this report, reference has been made to the contractual provision pur-
suant to which authority with respect to mailroom operations was vested in the
mailroom foreman exclusively; the section in question, noted, reflected an agreement
that the foreman-though a representative of the "office" or, in other words, the
Employer-should be a union member. Under section 5 of the agreement, the
foreman was granted the exclusive authority to hire all employees for mailroom
operations. The "journeymen" he was authorized to employ were contractually
specified. And a procedure was established whereby persons seeking to qualify as
journeymen might do so by passing an examination. The contractual section noted
included an agreement that the foreman might not exclude, as a candidate for em-
ployment, an individual who had established his competency as journeyman; he was
obligated to hire such an individual pursuant to contractually recognized priority.
Considered together with the provision of the General Laws that all persons engaged
to perform work as mailroom journeymen must be active members of the local union
or their craft, the contractual clauses noted clearly reflected an agreement that
Respondent Hillbro's mailroom would be operated under closed-shop and prefetential-
employment conditions. News Syndicate Company, Inc., supra. I so find
In the cited case, the General Counsel contended that the contractual requirement
with respect to the union membership of foremen, read in conjunction with member-
ship obligations set forth in the constitution and General Laws of the International,
and the constitution and bylaws of the Mailers organization, established, prima facie,
the existence of a contractual arrangement statutorily proscribed. (Reference was
made to article XII of the International's constitution and certain designated provi-
sions of the constitution of the respondent labor organization.) In this consolidated
case, any reference to the constitution and bylaws of the International would seem
to be unnecessary. (The constitution and bylaws of the local organization designated
herein as the Respondent Union have not been offered or received in evidence.) On
the basis of the Newspaper Agreement provisions cited by the General Counsel,
and the relevant General Law provisions made a part of the agreement by reference,
I find sufficient justification in the record for a conclusion that Respondent Hillbro
virtually divested itself of its hiring and placement functions, and that its right to
exercise such functions was relinquished to the respondent labor organization. News
Syndicate Company, Inc., supra; Houston Maritime Association, Inc., et al., 121
NLRB 389.
In Respondent Union's behalf, reference is made to section 4(b) of the Newspaper
Agreement, which affirmed the foreman's power to carry out Respondent Hillbro's
instructions "authorized by this contract" without fear of union penalty. This section
of the Agreement also provided that the Union should not "discipline or intimidate"
the foremen in any way for carrying out Respondent Hillbro's orders authorized by
the contract. Respondent Union contends that these provisions were-
. . . obviously inserted only for the purpose of making clear that the foreman
was not acting as the union's agent nor subject to the discipline of the union in
carrying out the duties of his office and the orders given him by the
employer.. . .
It is argued, also, that this language should completely nullify any notion that the
foreman was subject to General Law provisions which required the employment of
active local union members.
The argument appears to be based upon an erroneous interpretation of the con-
tractual provision in question, construed in the light of the General Laws made a
part of the agreement by reference. Elsewhere in this report it has been noted
that certain designated General Law provisions, cited as relevant to a contractual
arrangement statutorily proscribed, were not excluded, effectively, from incorporation
by reference as a part of the agreement by virtue of a contractual provision which
purported to limit the General Laws incorporated by reference to those not in conflict
with the agreement or with Federal or State law. It would seem to follow, neces-
sarily, that these General Law provisions remained a part of the agreement under
consideration. Elsewhere in this report, of course, I have so found. Their effectua-
tion and enforcement by the mailroom foreman was, therefore, clearly "authorized"
by the contract. And the contractual language now cited in Respondent Union's
behalf, which purported to immunize the mailroom foreman against any penalty,
discipline, or intimidation for the effectuation of Respondent Hillbro's orders or
instructions, authorized by the agreement, clearly cannot be said to have absolved
him of the specific obligation to maintain and effectuate the designated closed-shop
and preferential-employment conditions. I so find.
The mere existence of a contract which contains closed-shop provisions, even apart
from its actual enforcement, tends to encourage membership in a labor organization
by "discrimination in regard to hire" on the part of the employer involved; as a
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 605
result, the agreement itself may be said to fall squarely within the statutory prohibi-
tion Eichleay Corporation v. N.L.R.B., 206 F 2d 799, 803 (C.A. 3); N.L.R.B. v.
F. H McGraw and Company, 206 F. 2d 635, 641 (C.A. 6); Leo Katz d/b/a Lee's
Department Store v. NL.R.B., 196 F. 2d 411, 415 (C.A 9); Red Star Express Lines
of Auburn, Inc. v N.L.R.B., 196 F 2d 78, 81 (CA. 2). Since Respondent Union
joined in the execution of the Newspaper Agreement which contained these provi-
sions, it would seem to follow that the Umon caused Respondent Hillbro to discrimi-
nate against employees in violation of Section 8(a)(3) of the statute, and thus
itself became involved in the commission of an unfair labor practice. N.L.R.B. v.
National Maritime Union of America, et al., 175 F. 2d 686, 689 (C A. 2) cert.
denied 338 U S 954. I so find.
This conclusion, of course, rests upon a determination that the terms of the agree-
ment in issue-construed together with various General Law provisions incorporated
by reference-established closed-shop and preferential-employment conditions. Such
union-security arrangements have uniformly been held subject to administrative
proscription, since the passage of the statute as amended. And, under the circum-
stances, I find it unnecessary to determine whether the contractual arrangement
between Respondent Hillbro and the Union might likewise be subject to proscription
as an agreement which authorizes Respondent Union to exercise exclusive control
over mailroom hiring, without the safeguards elsewhere found necessary by this
Agency to negate the inherent tendency of such an agreement to encourage union
membership unlawfully. Mountain Pacific Chapter of the Associated General Con-
tractors, Inc., et al, 119 NLRB 883. Despite the Board's reliance on such a deter-
mination, alternatively, to sustain its order in the Neivs Syndicate case, no contention
based upon the Newspaper Agreement's failure to satisfy the standards specifically set
forth in Mountain Pacific as the minimum standards necessary to make an exclusive
union hiring agieement lawful has been advanced by the General Counsel in this
consolidated matter.
Under the Section 8(a)(3) proviso of the Act, as amended, the execution of an
agreement by an employer and a labor organization-
to require as a condition of employment membership therein on or after
the thirtieth day following the beginning of such employment or the effective
date of such agi cement, whichever is the later .. .
constitutes discrimination in regard to hire or tenure of employment, reasonably
calculated to encourage union membership, unless the labor organization involved
has "at the time agreement was made or within the preceding 12 months" received
from the Board a notice of compliance with Section 9(f), (g), and (h) of the statute.
It has been conceded herein that Respondent Union has never received such a notice
of compliance from this Agency. Since I have found, however, that the agreement
maintained and effectuated by Respondent Hillbro and the Union reflects a union-
security arrangement more stringent than the arrangements which the statute would,
in any case, permit, I find it unnecessary to determine whether that agreement should
also be considered unlawful because Respondent Union had not received a notice
of compliance with respect to Section 9(f), (g), and (h) of the statute, at the time
the agreement was made or within the preceding 12 months. Foundation Company,
120 NLRB 1453, 1454. In other Board cases, previously noted, reference has been
made to certain antecedent testimony by President Randolph of the International
organization, wherein he characterized the General Laws of the organization as
intended to embody the "essence" of the union shop. This Agency has found, with
judicial approval, that the "union shop" conditions which the International and its
subordinate locals have consistently manifested their determination to maintain,
actually deserve characterization as closed-shop conditions Cf. American Newspaper
Publishers Association v. N L R B, et al, 193 F. 2d 782 (C A. 7). Similar conclu-
sions with respect to the import of the General Laws have been reached in this
consolidated case. Under the circumstances, Agency reliance upon Respondent
Union's conceded "non-compliance" with certain statutory conditions precedent to the
execution of a valid union-security agreement, to provide supplementary justification
for an order otherwise demonstrably appropriate, might well be considered indicative
of a disposition to utilize any stigma to beat a dogma.
2. The Respondent Union's control of priority
The contractual provisions which effectuate the incorporation by reference of the
General Laws of the International, insofar as they relate to that labor organization's
priority system, clearly establish that system-which governs the employment priority
and seniority of Respondent Hillbro's mailroom employees-under the Respondent
Union's sole charge. (Section 9 of the Newspaper Agreement, it may be noted,
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provides that the General Laws of the International shall not be subject to arbitra-
tion.) This Agency has previously held that a contract clause which delegates
complete control over matters affecting seniority to a union is unlawful. Interna-
tional Brotherhood of Teamsters, etc., Local No. 41, AFL (Pacific Intermountain
Express Company), 107 NLRB 837; Northeast Texas Motor Lines, Inc., 109 NLRB
1147, 1148; Chief Freight Lines Company, 111 NLRB 22, 32; Kenosha Auto Trans-
port Corporation, 113 NLRB 643. And these determinations have received judicial
approval: International Brotherhood of Teamsters, etc. (Pacific Intermountain
Express Co.), 225 F. 2d 343, 346-347 (C.A. 8); N.L.R.B. v. Dallas General Drivers,
etc., Local Union 745, et al. (North East Texas Motor Lines, Inc.) 228 F. 2d 702,
706 (C.A. 5). In each case cited, the court involved has expressly approved this
Agency's determination that the employer who effectuated such a delegation had
violated Section 8(a) (1) and (3) of the Act, and that the union privy to the agree-
ment which established the delegation had committed unfair labor practices under
Section 8(b)(1) and (2) of the statute, since a contractual provision which effectively
delegates "complete control over seniority" to a labor organization may reasonably
be characterized as one which tends to encourage union membership.
The available evidence, which will be noted elsewhere in this report, does suggest
the possible validity of an inference that, on one significant occasion, Respondent
Hillbro may have fixed the "priority" of its mailroom employees unilaterally,
during the life of the Newspaper Agreement now in issue. The Respondent Employ-
er's determination, late in September 1956, that every employee in the newly merged
Los Angeles Examiner-Herald-Express mailroom would be accorded priority
dependent upon the date of his initial employment with either of these newspaper
enterprises as a journeyman mailer, does not appear to have been grounded upon
the firm's mere acceptance of a parallel determination previously made by Respondent
Union, whose chapels at the Examiner and Herald-Express had initially been sharply
divided on the issue. The record in this respect, however, will not, in my opinion,
support a definitive conclusion that the Respondent Employer's action was com-
pletely independent.
The theory which appears to underlie the Board decisions in this connection sug-
gests an Agency determination, in any event, that "potential" discrimination reason-
ably calculated to encourage union membership must be considered inherent in any
complete delegation of authority to a labor organization with respect to seniority,
and that this vice will not even be considered cured by a union commitment that
controversies in that regard will be settled without regard to union membership.
It would seem to follow that the relevant provisions of the Newspaper Agreement
previously noted, construed together with the General Law provisions relative to
priority, must be taken to have established the delegation statutorily proscribed,
despite evidence which might be considered sufficient to suggest the possibility of
unilateral action by Respondent Hillbro, without regard to the contractual arrange-
ment And I so find.
By the maintenance and effectuation of the contractual delegation noted, it is
further found, Respondent Hillbro encouraged membership in the Union by dis-
crimination in regard to employment tenure, and in regard to the terms and condi-
tions of mailroom employment. The Respondent Union's participation in the main-
tenance and effectuation of a contract which embodied the delegation in question
must, under settled law, be considered equivalent to causation of the resultant
employer discrimination, and the labor organization must, likewise, be considered
involved in the commission of an unfair labor practice.
B. The discharge of Wiesler
Issues
In this consolidated matter, the amended complaints raise certain issues with
respect to the treatment accorded Wiesler by Respondent Hillbro and the Union,
before and after the termination of his employment.
It is the General Counsel's contention, first, that the Respondent Union-on or
about September 1, 1956, and thereafter-ordered, instructed, and warned its mem-
bers in the employ of Respondent Hillbro not to converse or fraternize with non-
members of the organization, specifically the complainant herein, or to have any
social relationship with nonmembers of the organization while at work; pursuant
to such orders, attributable to Respondent Union's president, members of the
respondent labor organization are alleged to have refused, thereafter, to converse
or fraternize with the complainant and other nonmembers of the group. And
Respondent Hillbro, it is charged, knowingly permitted Respondent Union thus to
restrain its members from conversation and fraternization with nonmembers of the
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 607
organization, or from the maintenance of any social relationship with them, during
the course of their employment.
Additionally, it is charged that the respondent labor organization, on or about
October 12, 1956, specifically, attempted to cause and did cause Respondent Hillbro
to discharge Wiesler, for a reason other than his failure to tender the periodic dues
and initiation fees uniformly required pursuant to lawful umon-shop requirements
embodied in a trade agreement; in terms, Respondent Union is charged with having
caused Respondent Hillbro to terminate Wiesler's employment because of his mem-
bership in the Independent Mailers Union, to be designated as the IMU in this
report, and because of his failure to maintain membership in the respondent labor
organization. It is further charged that Respondent Union, on or about October 31,
1956, attempted to cause and did cause Hillbro to condition any possible reinstate-
ment of Wiesler upon the loss of his seniority; the General Counsel alleges that the
Respondent Employer, pursuant to Respondent Union's demands, refused to rehire
Wiesler without loss of seniority on or about the designated date-
. because he was not a member of the Union and for reasons other than
his failure to tender the periodic dues and initiation fees uniformly required
pursuant to a lawful union shop provision of a collective bargaining agreement,
namely, his non-membership in the Union and his membership in the Inde-
pendent Mailers Union ... .
The denials entered by the Respondents with respect to each of these allegations
pose the issues in this consolidated matter, with respect to the alleged impropriety
of Wiesler's termination and his subsequent failure to achieve reinstatement.
Facts and Conclusions
1. Background
Any attempt to evaluate the propriety of Wiesler's discharge must necessarily
rest-partially, at least-upon information with respect to his employment history
with the respondent newspaper enterprise, and the nature of his relationship with
his fellow employees. These preliminary matters, therefore, must now engage our
attention.
a. The newspaper enterprise
Throughout the period with which this case is concerned Hearst Publishing Com-
pany, Inc, published two daily newspapers in the Los Angeles metropolitan area.
One, the Los Angeles Examiner, is a morning newspaper, published 7 days each
week; the other, the Los Angeles Herald-Express, is a daily afternoon newspaper,
published 6 days a week, Sunday excluded. (The Examiner's press runs usually
begin at 5 p in. daily; they are completed at approximately 3:30-4 a.m. on the fol-
lowing morning. The mechanical reproduction and distribution of this newspaper
may be said, therefore, to involve night work. The press runs of the Herald-
Express begin at 8 a in., approximately; they are completed about 4:30-5 p in. The
printing and distribution of the Herald-Express, therefore, may be considered a
daytime operation.) Before September 3, 1956, a significant date in this consolidated
matter, the Herald-Express and the Examiner were printed and distributed at
separate premises Responsibility for the reproduction and distribution of each
paper was assigned to Respondent Hillbro, however. (Hillbro began operation as
a division of the Hearst enterprise, 1 find, sometime prior to September 1, 1955,
on a date not set forth with particularity in the record.)
While the two newspapers were published at separate premises, each plant main-
tained and staffed its own mailroom; nothing in the record will support an inference
that the employees assigned to these mailrooms were routinely interchanged. And
Respondent Union-although operative as a unified labor organization-maintained
separate chapels for the mailroom employees of each newspaper.
b. Wiesler's employment history
Wiesler's employment at the Herald-Express began on October 11, 1947; on that
date he established his "priority" as a journeyman mailer within that newspaper's
mailroom. At the very outset, his employment appears to have been somewhat
sporadic; he may have been employed as a substitute. Within a comparatively short
time, however, he became a regular situation holder.
(Previous decisions of this Agency, in cases which involved employees of the
newspaper industry, have often rested upon factual conclusions with respect to the
manner in which such employees establish priority and become regular situation
holders. An inference might well be justified, therefore, that the Board Members,
Agency personnel, and other interested parties possess a fund of information
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adequate to enable them to understand casual references to the procedure involved.
Nevertheless, a brief exposition of the employment process customary within the
Hillbro mailrooms, and the method utilized to establish mailroom employee pri-
orities, may be useful. Employment piiority reflects accumulated time worked
by an employee as a journeyman mailer. When an applicant for mailroom employ-
ment leaves his name-or deposits an appropriate union document-with a mailroom
foreman and states his desire to work regularly at a particular shop and to achieve
the status of a regular situation holder there, he is said to have posted his "slip"
in the shop; by such action he is considered to have designated the shop as the one
within which he wishes to establish priority. An employee's priority begins to
accumulate on his first day of work as a journeyman mailer, after his "slip" has
been posted. Priority may thus be described as synonymous with seniority. Print-
shops and mailrooms committed to this procedure usually establish and maintain
a priority list; this may be a printed list of employees arranged chronologically,
based upon the dates on which their priorities were established.
(Mailroom employees, regardless of priority, normally work one continuous
7'/z or 71/4 hour shift within a 24-hour period. An established employment rela-
tionship which regularly requires an employee to work five such shifts, day or night,
within a calendar week is conventionally designated as a situation or regular situa-
tion. And an employee regularly assigned, because of his priority, to work five
shifts within a calendar week is considered a situation holder or regular situation
holder
(Within the Hillbro mailroom, a list of the various employee shifts essential to
insure the proper distribution of the Examiner and the Herald-Express within a
given week is designated as a situation schedule; employees assigned, because of
their priority, to work a fixed number of shifts each week are listed by relative
priority in the schedule, which may also be -designated as a "markup" when the
employees assigned to various shifts are so listed The schedule or markup may also
include a list of apprentices regularly employed, and a list of employees with
established priority but without a sufficient number of fixed-shift assignments to
warrant their designation as regular situation holders. The last group is usually
designated as a group of substitutes or regular substitutes. Upon occasion-usually
in the event of an emergency-mailers with established priority within the shop
of some other employer may be called upon to work one shift or more in the Hillbro
mailroom; individuals offered such temporary employment are usually designated
as extras. Since extra employment is considered temporary, it cannot be relied upon
by the individual involved to establish priority within the plant at which it is
performed )
For the major part of a year, at least, Wiesler appears to have enjoyed the status
of a regular situation holder without incident.
c. The 1948 election
Befoie Wiesler's employment, the mailroom employees of the Herald-Express
were represented by Respondent Union, their collective-bargaining agent. On
October 14, 1948, however, this Board conducted a representation election within
the Herald-Express mailroom, upon an IMU petition. The Respondent Union-
presumably because of the failure of its parent organization to comply with the
requirements of Section 9(f), (g), and (h) of the Act, as amended-did not
appear on the ballot; the employees were merely offered a chance to indicate whether
or not they wished to have the IMU act as their exclusive representative.
In the campaign which preceded the election, I find Wiesler, previously a member
and officer of Respondent Union's sister local in Detroit, functioned as an active
IMU protagonist. That organization, however, failed to win designation by a
majority of the Herald-Express mailroom employees as a collective-bargaining
representative. The election results, certified by the Board's Regional Director,
established that the IMU received but 22 votes, and that 28 votes had been recorded
in opposition to its choice. Shortly thereafter, on October 21, 1948, Wiesler and
about 10 other Herald-Express employees were expelled by Respondent Union's
parent organization.
For some time after the election, also, Wiesler, then president pro tem of the
Independent Mailers group, and several other IMU supporters within the Herald-
Express mailroom appear to have been objects of "pronounced animosity" on the
part of Respondent Union's adherents. I so find. (The record establishes, without
elaboration, that the Respondent Union, despite its omission from the representation
election ballot, continued to enjoy contractual recognition as the exclusive repre-
sentative of the Herald-Express mailroom employees after the election.) The testi-
mony of the complainant establishes, absent effective contradiction, that IMU
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 609
supporters in the evening newspaper mailroom were given "silent treatment" by
many of their fellow employees. Asked to describe the situation further, Wiesler
testified credibly that IMU supporters were assigned to work at one end of the
mailroom and ITU men at the other. He went on to say that:
They wouldn't talk to us. They wouldn't have a thing to do with us. At one
time, if somebody had to come and work, 1 have even seen them draw names
to see who came down to work with us . When there weren't enough of
our men on the end, naturally they had to draw from the other end but they
resented it.
This situation continued for "quite a period" according to Wiesler's testimony; the
record establishes that he made several complaints about it to Fred W. Mannon, the
Hearst Publishing Company's industrial relations counsel.
(In December 1948, for example, Elmo Mathiesen, then president of Respondent
Union-subsequently Wiesler's superior in the Hillbro mailroom, under circum-
stances to be noted-submitted a report to the Typographical Journal, the Inter-
national Typographical Union's official paper, in which the IMU was designated as
a "sneaky outfit" and Wiesler was described as its "front" man. Assurance was
given that, when the "day" arrived, Respondent Union would purchase a "big
broom" and "sweep" the IMU group out into the streets. Mathiesen also promised
that when Respondent Union found itself able to "shed" the IMU group; the air
would be a great deal clearer around the Herald-Express mailroom. And in a
subsequent article in the Los Angeles Citizen, official publication of the Los Angeles
American Federation of Labor, on June 24, 1949, Mathiesen reported that the
"silent treatment" previously accorded Wiesler seemed to have gotten under his
skin. The testimony of Paul Coon-presently the day foreman of the Hillbro
mailroom, who was the assistant foreman of the Herald-Express mailroom at the
time of the consent election-that no management representative subjected the
IMU adherents within the shop to discriminatory treatment at the time, cannot
be considered sufficient to vitiate the significance of Mathiesen's implied admission
that Wiesler and the other IMU adherents within the Herald-Express mailroom
were, in fact, then exposed to demonstrations of employee animus )
For a period of time after the election, also, Wiesler appears to have made
numerous counterrepresentations to Mannon that the trade agreement then effective
between Hilbro and Respondent Union was illegal, that the members of Respondent
Union then in the employ of the respondent enterprise as foremen were acting in
a discriminatory manner, and that the Hearst Publishing Company ought to recog-
nize the IMU as a minority employee representative.
The complainant was advised, I find, that the respondent enterprise would be
unable to negotiate with him in regard to the rights of any minority employee
group within the Herald-Express mailroom, but that the firm's management would
be willing to discuss specific claims of discrimination with him, after giving notice
to the contractual representative of the employees sufficiently early to enable them
to have a representative present at any conference, if they wished.
Mannon's testimony also establishes, absent contradiction, that within a period
of several years after the election, the complainant filed "two or three" unfair
labor practice charges against the respondent enterprise, none of which were
carried beyond the investigative state by a Board representative; they appear to
have been withdrawn or dismissed prior to the issuance of a formal complaint.
The available evidence, in my opinion, will support an inference that Wiesler
communicated with Mannon frequently, in regard to the shop problems of the IMU
supporters, until sometime in 1950 approximately Thereafter, his complaints appear
to have diminished in number, and for several years prior to the period with which
this consolidated matter is immediately concerned, I find, social relationships between
Wiesler and Respondent Union's membership in the Herald-Express mailroom were-
relatively amicable During the latter part of 1956, the period with which this case
is concerned, all of Respondent Hillbro's mailroom employees, with the exception
of Wiesler and Elzie Grenninger, a fellow mailer, held membership in the respondent
labor organization, its membership included the mailroom foreman and assistant
foreman, together with the general foreman or superintendent of the combined
Examiner and Herald-Express mailroom established late in the year, under circum-
stances now to be noted
d. The integration of the mailrooms
Sometime in 1956, Respondent Hillbro determined to merge the mechanical
operations involved in reproduction and distribution of the Examiner and Herald-
560940-61-vol. 127 40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Express. On September 3 of that year, pursuant to a plan previously developed,
all of the mechanical operations and personnel required to print and distribute the
Herald-Express were moved to the Examiner's premises. This arrangement was
effectuated, I find, for business reasons. (Elmo Mathiesen, previously the foreman
of the Examiner mailroom from October 1949 to the date of the integration move,
was designated to serve as the superintendent or general foreman of the combined
operation. Paul Coon, previously employed as the Herald-Express foreman, con-
tinued to supervise daytime mailroom operations related to the distribution of the
evening newspaper.)
Prior to the accomplishment of this planned integration, I find, the employees of
each newspaper evidenced considerable concern as to the effect it might have upon
their employment tenure and conditions of work Employees represented by the
approximately 19 separate craft unions were involved; the uncertainty of many with
respect to the possible impact of integration appears to have generated some fear
and apprehension as to possible staff reductions, prospective reassignments of rela-
tive priority, possible shift changes on the basis of altered priority relationships, and
prospective changes in other conditions of employment. (Many Herald-Express
mailers did not wish to move. And many Examiner mailers, I find, expressed opposi-
tion to the presence of Herald-Express mailers at the Examiner premises.)
Within Respondent Union particularly, tension developed between the Examiner
and Herald-Express chapels. Discussion and conflict eventuated with respect to
the possible creation of a consolidated chapel. And divergent opinions were ex-
pressed with respect to the proper allocations of relative priority within the combined
mailroom.
(Within the Examiner chapel it was suggested that all of the Herald-Express men,
listed in the order of their established priority, ought to rank below the Examiner
men; some Herald-Express mailers countered this with a suggestion that the Examiner
men, listed in the order of their established priority, should be ranked below Herald-
Express employees. It was also suggested that the Examiner and Herald-Express
priority lists could be dovetailed pursuant to a ratio established on the basis of the
number of men in each chapel. Finally, there was a suggestion that the lists ought
to be dovetailed with strict regard to chronological seniority; under this plan the
relative priority of each employee in the combined mailroom would be determined
by the actual date of his initial employment as a journeyman mailer with either news-
paper enterprise.)
This conflict with respect to priority, I find, reflected basic concern over the possi-
bility that some individuals with low priority might lose their regular situations or be
deprived of employment altogether. Additionally, I find, some Herald-Express
mailers feared the possibility that Examiner men with high seniority might rely upon
their priority status to deprive the evening newspaper men of day-shift assignments,
and that some of the evening newspaper men would thus be compelled to accept
night work. The testimony of President Lomas of Respondent Union establishes,
absent contradiction, that the discussion of these possibilities within his organization
created a great deal of concern, animosity, and conflict. At a meeting held on
August 31, 1956, however, immediately prior to the establishment of the integrated
mailroom, the membership of Respondent Union voted to approve the preparation of
a combined priority list based upon chronological considerations exclusively, with
the relative priority of each employee dependent upon the initial date of his employ-
ment as a journeyman mailer with either Hearst newspaper.
The activation of the combined mailroom at the Examiner premises, however,
presented the Herald-Express mailers, particularly, with serious problems. In sub-
stance, they had to establish new methods of operation, based upon the utilization
of different equipment, laid out in a different fashion.
(In this connection, the evidence establishes that the newspaper loading platform
at the old Herald-Express building had been manned by the members of a different
labor organization; at the Examiner's location, mailers handled the dockwork. The
loading and distribution equipment on the Examiner dock was geared to swift
operation, and required experienced men. The Examiner presses were also operated
at speeds higher than those previously maintained under Hrllbro supervision at the
Herald-Express plant. In the evening newspaper's mailroom, tying equipment had
been manually operated; the typing equipment utilized in the Examiner mailroom
was electrically operated. The dollies used by Examiner personnel were new to
Herald-Express mailers The layout of the Examiner mailroom differed from that
found in the Herald-Express operation, with respect to the location of escalators,
conveyors, and other equipment. Additionally, tied newspaper bundles were handled
differently in the two mailrooms.)
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 611
As a result, I find, the Hillbro management had to experiment with the Herald-
Express mailers in various jobs. And these men had to be trained to handle different
equipment. The period subsequent to the establishment of the combined mailroom
has been characterized by Respondent Hillbro, credibly, as a "shakedown" period.
And the confusion and successive readjustments incidental to such a period continued,
I find, for some time (The testimony of the complainant that confusion and uncer-
tainty prevailed only on the first day of the combined operation must be rejected.)
In the main, I credit the testimony proffered in Respondent Hillbro's behalf, to the
effect that the problems of the "shakedown" period were compounded by shortages
of newsprint, delayed press runs which caused the reproduction of the last Herald-
Express edition to overlap the initial run of the next day's first Examiner edition,
locker shortages at the Examiner plant because of the large number of Herald-
Express mailers currently at work there, and resultant friction between the Examiner
and Herald-Express employees.
Upon the entire record, also, I am satisfied that employee tensions incidental to
the "shakedown" period continued for some time after the establishment of the
combined mailroom. Specifically, many mailers appear to have been worried as to
whether one or the other of the Hearst newspapers would be discontinued, and
whether the establishment of the combined operation would eventuate in a layoff.
There is testimony that tensions generated by these aspects of the situation continued
for several months. I find it unnecessary to accept this testimony without qualifica-
tion, but I am satisfied, nevertheless, that employee concern with respect to the
possible impact of the situation affected employment relationships for at least a
month after integration was effectuated.
2. The treatment received by the complainant
Wiesler was on vacation, I find, from August 18, 1956, until Labor Day, Septem-
ber 2. He reported for work on September 3, 1956, when operations within the
combined mailroom began, and was assigned a shift schedule identical with the one
he had previously worked in the Herald-Express mailroom. His work assignments,
except for a limited number of duty tours at the newspaper loading dock of the
combined operation, appear to have been varied within the normal range of
mailroom work.
The complainant's testimony, however, establishes, absent effective contradiction,
that he was frequently ignored, slighted, and subjected to petty annoyance by a
number, though not all, of his fellow employees, during the period which followed
the integration of the mailrooms.
(As previously noted, it is the General Counsel's contention that Wiesler was
hazed and given "silent treatment" by his fellow employees in conformity with an
express union policy. The available evidence with a tendency to support this
contention will be noted elsewhere in this report )
As a witness, Wiesler stated that most of the employees on the day shift refused
to converse with him socially. He also testified that various mailroom supervisors
would "sometimes" forget his right to share the morning "coffee break" which other
mailers enjoyed, and that employees dispatched to bring afternoon coffee back to
the mailroom hardly ever asked him if he wanted any to drink On one occasion, I
find, he heard himself designated, derisively, as a "free rider" by a fellow employee.
And "two or three" times he found a cigarette-which he had placed, temporarily,
on the edge of a table:-knocked to the floor. The complainant's testimony also
establishes, absent contradiction, that his locker at the Examiner plant was padlocked
by someone unknown to him, on two occasions, for I or 2 days each time. (Wiesler
testified that he reported the second padlock incident to Herald-Express Foreman
Coon, but that the latter disclaimed any knowledge as to the identity of the indi-
vidual responsible As a witness, Coon corroborated the complainant's recital.)
Wiesler also reported that on several occasions-with the number unspecified-
employees assigned to work with him on the conveyor utilized to bring up news-
papers from the presses would deliberately vary the rhythm of their work in such a
way as to 'burden him and interfere with his efforts to perform his assigned tasks
efficiently. Once, Wiesler testified, a request on his part for some papers re-
quired by another employee was "ignored" by some of his fellow workers. On
another occasion-according to the complainant's recollection refreshed in cross-
examination-he overheard one mailer, Kelly, ask another, Hale, if he wanted to be
"fined" for talking to the complainant on the job. Finally, Wiesler stated that his
fellow employees refused to play cards with him. His testimony in this connection,
which has not been contradicted, reads as follows:
.. . during lunch time the fellows played pinochle and I walked in the locker
room. There was dead silence. They wouldn't look to me. They wouldn't
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speak to me. They wouldn't do a thing, and never offered to play pinochle
whereas the Saturday before I left them on my vacation before I moved over
there, I was friendly with everybody, and we were playing pinochle. When we
get over there, they have their little groups, and if 1-I didn't even stop to look
to see if they had a place to play, because I knew I wasn't wanted, and I just
didn't bother
In their testimonial presentation, Respondents made no effort to contradict
Wiesler's testimony that he was ignored, slighted, and annoyed by some of his fellow
employees. Essentially, it appears to be their contention that many of the mailroom
workers at the Examiner plant after the activation of the combined operation dis-
liked some of their fellow employees, that various personality conflicts evident within
the group conceivably could have been derived from differences of opinion unrelated
to the ITU-IMU conflict; and, finally, that some of these differences and irritations
may have been intensified because of the uncertainty and tension which had accom-
panied the effectuation of Respondent Hillbro's integration plan. Additionally,
Respondent Union argues that it may not be held responsible for the treatment
Wiesler received from some of his fellow employees, absent reliable, probative, and
substantial evidence that the course of conduct attributable to these employees with
respect to him reflected the respondent labor organization's official policy.
In support of the General Counsel's contention, the complainant testified that
employee Ernest Roland told him, at the very inception of the integrated operation,
that President Lomas of Respondent Union had advised all of the Herald-Express
chapel members, shortly before the activation of the combined mailroom, not to
converse with the IMU members in the shop, not to play pinochle with them, not to
"fraternize" with them, and not to "talk" with them under penalty of union charges.
Wiesler's testimony suggests that Roland mentioned the promulgation of these
instructions by President Lomas in a context which indicated their issuance "on the
floor" of the August 31 chapel meeting, immediately prior to the activation of the
combined mailroom. That night, according to Wiesler's further testimony, employee
Harry Unter provided him with similar information as to the instructions allegedly
issued by Lomas at the chapel meeting. And on September 8, 1956, according to
the complainant's recitals, employee Charles Manuel advised him, privately, that:
I almost got a pink slip this morning for talking to you . . . I can't mention
names . . . you know how I feel about it. I don't want to get in any trouble.
In this connection, Wiesler's testimony establishes, absent contradiction, that Manuel's
reference to the possible issuance of a pink slip was intended to indicate the possi-
bility that he might be subjected to a union charge or fine.
Later within the month of September, according to Wiesler's testimony, employee
Paul Kaeding commented that Chapel Chairman Yelsky of Respondent Union had
advised him that he ought not to engage in conversations with the complainant herein
And Wiesler referred to another occasion, date unspecified, when he had exchanged
a few words, conversationally, with employee Manuel, while both were assigned to
a press. According to the complainant's testimony, Henry Gullo, Respondent
Union's assistant chapel chairman, was overheard to advise Manuel that he did not
wish to "pick" on him Thereafter, Manuel did not indulge in further conversation.
(In cross-examination, Wiesler also cited an occasion when he informed Virgil Cobb,
a night-shift mailer who occasionally worked days, that the latter was "talking" to
him at his own risk; Cobb is alleged to have replied, "I don't go for that stuff.
That's kid stuff." The complainant's testimony with respect to the exchange is
credited.)
As previously noted, Wiesler's testimony establishes his effort to confer with Day
Foreman Coon in regard to his treatment by fellow employees; the latter, I find,
was asked to arrange a conference for the complainant with Fred W. Marmon, the
Hearst industrial relations counsel. Coon asked Wiesler if he thought such a con-
ference would "avert" something; he was told that it might very well help "alleviate"
the situation. No such conference, however, was arranged.
When Wiesler made his second complaint to Coon, he was referred to Eugene
Lowe, employed by Respondent Hillbro on or about September 16 to replace Elmo
Mathiesen as the superintendent or general foreman of the combined mailroom. The
testimony of the complainant establishes, I find, that he made a full report to Lowe
one afternoon, with respect to the treatment he had received from his fellow mailers,
and that Lowe advised him, among other things, that his job was protected by law.
In other respects, the conversation appears to have been inconclusive
As a witness, Roland was not asked about his reported conversation with Wiesler
in regard to Respondent Union's alleged nonfraternization policy. He was, how-
ever, questioned specifically about the August 31 meeting of the Herald-Express
chapel, and recalled it, in part, as follows:
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 613
Well, there was a lengthy discussion of what was going to happen when we
moved over to the new building, and Mr. Lomas was outlining these proce-
dures. . Well, just before the question of priority came up, and we were
told that we would be lined up according to the time we started to work, the
year and the day and so forth, and then a little later just before the meeting
adjourned, somebody brought up the question of what was going to happen to
the IMU men, of which at that time, there was two, Mr. Grenninger and Mr
Wiesler, and Mr. Lomas made the statement that when we moved over to the
new building that they would be taken care of and they wouldn't be there
long. . . . He made statements that if we were caught fraternizing with these
two men, that we would be taken downtown and taken before an investigative
board and be fined or something of that nature.
In cross-examination, Roland insisted that a member of Respondent Union had
raised the question of what would "happen" to the IMU men almost immediately
after President Lomas had given his explanation of the manner in which relative
priority within the combined mailroom would be determined He could not recall
any statement by Lomas, however, that the priority of these men would rest upon
the same factor as the priority of the chapel members; nor could he recall any
statement by the union president-suggested as a possibility by the cross-examiner,
but not otherwise established by evidence-that members of Respondent Union were
"under no obligation" to discus's union business with nonunion employees. When
questioned with respect to his testimony that Lomas had threatened union members
who associated with Wiesler and Grenninger with organizational discipline, Roland
testified that he did not "believe" the remarks of the union president to have been
limited to a prohibition of conversations involving union business. He conceded,
however, that he had seen Lomas and Wiesler engaged in conversation after the
integration move.
At the General Counsel's call, employee Kaeding corroborated Wiesler's testimony
that Chapel Chairman Yelsky had attempted to admonish him. Kaeding's testi-
mony, in this connection, reads as follows:
Well, he [Yelsky] come up to me one day. I had been talking to Cy [Wiesler]
on occasions, and he come up to me and he said the men were complaining that
I was talking to Cy and they wanted me to stop and he said it wasn't his idea,
but he was following orders and they wanted me to cut out talking to the man.
Well, it made me mad because they were taking away my freedom of speech
when they did that and I put up quite an argument about it, but to keep peace
in the family, I just cut out talking to Cy.
According to Kaeding, President Lomas later observed informally, during a mail-
loom conversation, that anyone caught talking to Wiesler or any other IMU members
would be taken "down town" for such conduct. In cross-examination, however,
the employee conceded that he had never been subjected to organizational discipline
because of his conversations. And when questioned about the statement attributed
by him to President Lomas shortly after the chapel chairman had admonished him,
Kaeding could not recall the context in which the union president had threatened
discipline for members of the organization caught in conversation with nonmem-
bers; he could only recall that "this IMU situation" had been a subject of employee
discussion; that some of the employees present had indicated resentment over the
allocation of priority status to IMU adherents within the combined mailroom; and
that these employees had observed that "they" did not wish Union members to
converse with the IMU supporters.
As a witness in Respondent Union's behalf, President Lomas categorically denied
his responsibility for any pronouncement that union members who associated
socially with Wiesler and Grenninger would be subject to organizational discipline.
His testimony with respect to his remarks at the August 31 meeting of the Herald-
Express chapel was lengthy and detailed; it establishes, absent contradiction, that
he addressed the union members with respect to the conditions under which they
would be required to work after integration was effectuated, and that he sought
to "reassure" them that their priority status in the combined operation would
be adequately protected. According to Lomas, however, a question was raised with
respect to the status of the so-called IMU men, while "everybody was just informally
sitting around" at the meeting's conclusion. And his testimony with respect to his
response reads as follows:
Well . I told the members that I.M.U. men were going to work with us
in the Examiner plant and that they were to get along with them and work
with them and do the job as expeditiously as possible, and that I didn't want
any trouble with the LM U. men or any of the Examiner men either. . . . There 0
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was, as I stated quite a bit of concern [ among] the Herald people regarding the
priority and what the union was going to do and where they were going to
fit in on the board and so forth, and some mention . . . was made as to what
part the I.M.U. men were going to play in this thing, and I believe that I told
the members that they, the I.M.U. men were something that they were going
to have to recognize as being a definite part of the operation and as such to get
along with, and that as far as [our] priority list and that sort of thing was
concerned, and the details, internal details of the union, working this problem
out was no concern of the I.M.U., and that I didn't want to discuss that affair,
or those internal matters with any I.M.U. men or any other outsiders at all.
I believe I was very specific on that point because that is a violation of the
I.T.U. and our local union laws to divulge any secrets or business of the union
to outsiders. . . . I said that if they divulged any of the internal affairs of
the union to outsiders, they would be disciplined for that action and that is
part of the laws, as I stated.
The testimony of several union members was proffered in Respondent Union's
behalf, also; essentially they corroborated the testimony of President Lomas, noted.
Conclusions as to Wiesler's Treatment
Upon the entire record, I am satisfied that Wiesler was, actually, given "silent
treatment" and subjected to petty harassment by a number of his former Herald-
Express colleagues after integration was effectuated. The attempt of some mailroom
employee, never identified, to deprive him of his locker space may have been initi-
ated, conceivably, without regard to his known status as a rival union supporter.
(In this connection, the testimony proffered in Respondent Hillbro's behalf-which
would warrant the conclusion that a general locker shortage at the Examiner plant
had prompted several locker raids similar to the one Wiesler reported-rings true,
in my opinion.) But the complainant's testimony that some of his fellow employees
made a studied effort to avoid conversation with him, and subjected him to petty
haiassment and annoyance was corroborated (see Grenninger's parallel description
of his own situation) and has not been effectively contradicted.
There can be no doubt, also, that Wiesler was genuinely distressed by such conduct
on the part of his fellow mailers; his complaints to Day Foreman Coon and General
Foreman Lowe, particularly, have been noted. And the record establishes, without
dispute, that he was even moved to mention his situation to Elmo Mathiesen, shortly
after the latter's resignation from his post as the general foreman of the combined
mailroom.
The General Counsel's contention that the course of conduct attributable to
some of Wiesler's fellow employees implemented an official union policy, however,
has not been established by a preponderance of the evidence, in my opinion. The
complainant, it is true, did attribute statements to Roland, Unter, and Manuel
which, taken at face value, suggest the ultimate responsibility of Respondent Union
for the harassment he suffered His own testimony in this connection was received,
however, with a clear acknowledgment of its hearsay character; the General Counsel
has not indicated a disposition to rely upon it to establish the truth of the assertions
attributed by Wiesler to the mailers named. (Nothing in the record will support
a conclusion that Roland, Unter, or Manuel had authority, apparent or otherwise, to
bind the Respondent Union by vicarious admissions.) There is testimony by Wiesler,
of course, which does establish, absent contradiction, his personal knowledge
that Kaeding and Manuel were, at various times, admonished by Chapel Chairman
Yelsky and Assistant Chapel Chairman Gullo, in a situational context which would
tend to suggest that these union representatives disapproved of fraternization
between Wiesler and his fellow mailers. The conversational fragments which the
complainant overheard, however, cannot be considered sufficient to sustain a
conclusion that Kaeding and Manuel were admonished to conduct themselves con-
sistently with an articulate policy of the respondent labor organization.
Roland, of course, did testify, directly, that Lomas threatened the membership
of Respondent Union with organizational discipline if they conversed or associated
with the IMU men in the combined Hillbro mailroom. And Kaeding's testimony
does reflect the attribution of similar comments to the president of Respondent
Union, later, in the course of an informal conversation.
Upon the entire record, however-particularly in the light of the denials of Lomas
and his counterexplanation-I have concluded that the testimony of Roland and
Kaeding reflects an overstatement, possibly inadvertent, of the remarks legiti-
mately attributable to the Respondent Union's president. Various items of testimony
which I credit, in this connection, clearly establish that Respondent Union's
membership was confused and fearful with respect to the possible impact of Hillbro's
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 615
integration program upon mailroom job tenure, and their conditions of employ-
ment within the combined operation. It is also clear that the union membership
was torn by dissension with respect to the position their organization ought to take
in regard to relative priority allocations, under the circumstances Since any revela-
tion of this internal dissension to nonmembers-particularly adherents of a rival
labor organization-could reasonably have been expected to damage Respondent
Union's prestige as the exclusive representative of the mailroom employees, testi-
mony that Lomas cautioned the membership not to discuss the organization's
business with outsiders, upon pain of discipline, would seem to be worthy of
acceptance. In the light of the available evidence, taken as a whole, I am satisfied
that the remarks attributable to Lomas were actually limited as indicated, and
that they cannot be characterized, properly, as a total prohibition of social inter-
course between Wiesler, Grennmger, and the Hillbro membership of the respondent
labor organization. (The available evidence, previously noted, does establish that
some of the union members in the combined operation did, actually, converse with
Wiesler socially, and that President Lomas, himself, talked to the complainant at
the Hillbro mailroom. And there is nothing in the record to show that any employee
of the respondent enterprise who fraternized with the complainant was ever sub-
jected to union discipline for such conduct.) The Respondent Union's right to pre-
scribe its own rules with respect to the acquisition or retention of membership by
employees-and to enforce any rules prescribed by appropriate organizational
discipline, so long as the statutory rights of the employees involved are not thereby
infringed-would seem to be clear under the Section 8(b)(1)(A) proviso. I find,
therefore, that the remarks of President Lomas did not initiate any restraint or
coercion of Wiesler, or any other employee without union membership status,
which can be considered legally attributable to the respondent labor organization.
And, consistently, it would seem to be entirely clear that, the Respondent Hillbro
cannot be held to have knowingly "permitted" Respondent Union, contractually
recognized as the exclusive representative of the firm's mailroom employees, to
forbid fraternization or social intercourse between its members and the nonmembers
of the organization, employed within the combined operation, during their course
of employment. I so find.
3. The priority list and situation schedule
During the weeks immediately subsequent to the establishment of the combined
mailroom, the Examiner and Herald-Express mailers appear to have retained their
prior shift assignments, under separately maintained situation schedules. I so find.
General Foreman Mathiesen, however, applied himself, before his resignation on
September 16, previously noted, to the preparation of a new situation schedule which
would list the total number of full-time shifts required to provide adequate distribu-
tion for the Hearst newspapers. Ultimately, he appears to have been able to prepare
a schedule which listed 126 five-day "situations" to be staffed. Concurrently, he was
engaged, I find, in the preparation of a priority list for the combined operation. His
testimony establishes, absent effective contradiction, that he prepared the priority
list on the basis of the information he was able to secure from Respondent Hillbro's
payroll office with respect to the dates upon which each journeyman mailer then in
the firm's employ had established priority within the Examiner or Herald-Express
mailrooms. (Mathiesen's list, I find, ultimately included 112 journeymen mailers
whose priority within either mailroom had been established before the integration
move, and 5 men, previously employed as apprentices, elevated to journeymen status
upon the activation of the combined mailroom. Within the 3-week period subsequent
to its establishment, 5 new apprentices appear to have been hired, together with 3
individuals who may possibly have been journeymen. The general foreman's list
thus seems to have included 125 names. Of this number, seven were ultimately
omitted from the regular situation-holder list. Paul Coon was designated a non-
working foreman; M. Lomas and R. Santore did not receive regular shift assign-
ments, despite their established priority, because of their official status as the
president and secretary of the respondent labor organization, respectively; four
journeymen, also, for unspecified reasons, were never listed as regular situation
holders Finally, Mathiesen appears to have had no more than 118 mailers available
to cover 126 scheduled situations I so find.) The complainant, I find, was listed as
the 60th mailer on the general foreman's priority list. Ultimately, however, under
circumstances to be noted, he was afforded the 57th shift choice on the situation
schedule; 3 listed mailers with greater seniority did not claim regular situations
While Respondent Hillbro's priority list was in preparation, Wiesler became aware
of the possibility that his name would follow the names of five journeymen mailers
previously in the Examiner's employ, with a common priority date which he believed
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subsequent to his own (The record establishes that, early in the month, the com-
plainant observed a mimeographed document designated as "Revised Priority List
of the Herald-Examiner Chapel" which he found posted in the locker room of the
combined operation. It listed all of the mailers in Hillbro's employ before September
2, 1956, Wiesler and Grenninger excepted. These employees appear to have been
listed in priority order, supposedly on the basis of their earliest date of continuous
employment. The document also contained a statement that any "member" who
might wish to appeal would have to do so within 5 days after the regular monthly
meeting scheduled on September 10, 1956. Within the document's body, M. Sweet,
R. Moudy, A Enciso, T. Barron, and H. Myers were listed in the order indicated,
with November 11, 1947, shown as the earliest date of continous employment for
each. Since Wiesler's established priority date, previously noted, was October 11,
1947, he believed himself entitled to precedence over the five employees designated.)
The available evidence establishes that Wiesler protested General Foreman
Mathiesen 's tentative decision to place him on Hillbro 's priority list immediately after
the five employees in question. He was, however, advised by the general foreman,
I find, that these employees actually had established their priority status within the
Examiner mailroom between March 8, 1945, and March 21, 1946, according to
Respondent Hillbro's records. The complainant's testimony, to the contrary, that
Mathiesen had listed the five employees involved in the sequence previously noted,
with a common November 11th date of hire, was later contradicted in cross-
examination . ( In the light of the available evidence , there may be some basis for
an inference that the mimeographed document which Wiesler had seen-one which
led him to conclude that the five Examiner men now under consideration ought to
have been listed by the Respondent Employer below him-may have been a priority
list prepared at the Respondent Union's instance , to reflect the relative priority status
of organization members based upon some criterion other than strict chronology
applied to their earliest date of hire as journeymen mailers . The origins of the docu-
ment, however , and the principles utilized in its preparation , have not been estab-
lished by reliable, probative, and substantial evidence. It was made a part of the
record merely to facilitate comprehension of the available evidence with respect to
its contents . No definitive conclusion with respect to its origins or significance would
be warranted, and I have attempted none) Although the complainant appears to
have believed in good faith , on the basis of information available to him, that his
relative priority had been erroneously determined , the record will not support a con-
clusion that his established priority date did precede those of the five Examiner
mailers. His position on the priority list, in any event, was not changed.
On September 16, as previously noted, Eugene L. Lowe was employed to replace
Mathiesen as the superintendent or general foreman of the combined operation. He
received a copy of his predecessor 's situation schedule , together with a priority list.
These documents he gave to Chapel Chairman Yelsky; the latter was instructed to
circulate within the mailroom and to offer employees their choice of shift assignments
and offdays, in accordance with established priority. The testimonial record will sup-
port a factual determination that Yelsky took several days, from the 16th to the 22d
of the month, to complete this task, and that he offered each mailroom employee,
Wiesler and Grenninger excepted, his choice of available shift assignments. The
complainant and Grenninger were offered their choice of shift assignments by Day
Foreman Coon; the latter was accompanied, however, by Yelsky with the priority
list in hand Wiesler , I find, expressed dissatisfaction with the shift -assignment
choices available . (Before the establishment of the combined mailroom, he had
worked a shift which began at 7:45 a.m., with Sundays and Thursdays free. No
such shift remained for him to claim, when he was proffered his choice ) Under
protest, he selected an 8 a in. start, with Sundays and Wednesdays free. His protest,
however , was ineffective ; no change in his assignment appears to have been made
before the termination of his employment, to be noted.
Conclusions as to the Priority List and Situation Schedule
It is contended by the General Counsel that Respondent Hillbro, during the period
with which this case is concerned, actually delegated responsibility for the mainte-
nance of its mailroom seniority , priority, and shift-assignment system to the re-
spondent labor organization. And the latter Respondent, it is asserted, "determined
the maintenance" of Respondent Hillbro's seniority , priority , and shift-assignment
system for mailroom employees , throughout the period in issue.
It has already been noted that the present record , in my opinion , will not support
a definitive conclusion that the ultimate decision reached by the mailroom 's general
foreman with respect to the preparation of an integrated priority list-pursuant to
which each mailroom employee 's priority status was fixed on the basis of his initial
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 617
employment date, either for the Examiner or Herald-Express, as a journeyman
mailer-was a decision reached independently of Respondent Union's prior vote to
press for the allocation of relative priorities on the basis noted. However, it will not
support a definitive conclusion to the contrary, either, that the general foreman's
preparation of the integrated priority list, noted, reflected his passive acceptance
of the respondent labor organization's official position.
Elsewhere in this report, it has been found that the trade agreement effective
throughout this period included provisions which, essentially, purported to vest un-
fettered discretion in Respondent Union with respect to the maintenance of Hillbro's
seniority or priority system. And the available evidence does establish that, before
the activation of the integrated mailroom, the membership of the Union did approve
the preparation of a combined priority list for men previously employed in the two
Hearst mailrooms strictly based upon their initial hire dates as journeymen mailers.
The vote thus recorded could, of course, be interpreted as an attempt on the part
of the Union's membership to exercise the discretion contractually vested in their
organization, with respect to the establishment of a priority system for union
members.
But can Mathiesen's ultimate decision, as Respondent Hillbro's mailroom super-
visor, to adopt a priority system based upon a principle identical with the one ap-
proved by the respondent labor organization legitimately be said to reflect, simulta-
neously, both Respondent Employer's recognition of the Union's right to determine
the matter and the labor organization's exercise of that right?
It is clear that the general foreman, ultimately responsible for the preparation of
Respondent Hillbro's priority list, was a member of the respondent labor organization
at the time; his knowledge of the Union's official position with respect to the
preparation of the list may, therefore, be inferred, despite the absence of any
evidence in the record to show that information with respect to the Union's vote
was ever communicated, formally, to Respondent Employer. In my opinion, how-
ever, the fact that he may have prepared the integrated priority list with presumptive
knowledge of the way Respondent Union's membership wished it prepared, and the
concurrent fact that his relative priority allocations appear to reflect the adoption
of a seniority principle identical with the one previously approved by his organization,
cannot, without more, be considered sufficient to support the General Counsel's
double-barreled contention in connection with this aspect of the case.
In the preparation of a combined priority or seniority list intended to establish the
relative priority status of men previously employed at two separate locations, strict
reliance upon data as to their initial dates of hire, regardless of the location of their
local Hearst mailroom employment, would seem to have been both inherently
equitable and reasonable. While, therefore, Mathiesen's determination to rely upon
such data may have involved passive acceptance of Respondent Union's official policy
in favor of such action, it may also have involved an independent decision, based
upon logical and equitable considerations.
Nothing in the record will warrant a conclusion that Mathiesen was instructed
by his Hillbro superiors to implement Respondent Union's previously declared
policy Nor is there any concrete evidence that his decision, considered as a
personal one, was actually motivated by any recognition of the Union membership's
vote as determinative. His testimony that he secured the necessary employment
data from Hillbro's payroll department is the only testimony relevant to this aspect
of the matter now in issue, and it has not been disputed.
The General Counsel's argument, therefore, can only be said to rest upon in-
ference. And since no evidence sufficient to rebut an equally valid inference to
the contrary has been adduced, the General Counsel's ultimate contention must be
rejected. Compare Evans v. International Typographical Union, 81 F. Supp. 675,
684-685, in this connection.
The available evidence dealing with Chapel Chairman Yelsky's assignment to
record the shift preferences of the mailers establishes that his functions were min-
isterial; nothing in the record would sustain a conclusion that he was authorized to
effectively "determine" shift assignments. And Wiesler's complaint that he was
discriminatorily deprived of the opportunity to choose the shift assignment he
wanted because of some erroneous priority determinations-presumptively intended
to favor certain members of the respondent labor organization without justification-
has not been established as meritorious. While a reference to the purported
priority list, previously noted, observed by Wiesler in the Respondent Employer's
locker room conceivably could have induced him to protest his final priority assign-
ment below Sweet, Moudy, Enciso, Barron, and Myers as reflective of discrimina-
tion, Respondent Hillbro's actual payroll records, which have not been effectively
disputed, apparently establish the propriety of his placement below these employees
on the firm's list. (The posted document, relied upon by Wiesler as his source
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of information with respect to priority dates, listed 10 employees with presumptive
"earliest dates of continuous employment" between February 15, 1945, and July 21,
1946; 15 employees were listed, thereafter, with presumptive priority dates between
August 14, 1946, and October 10, 1947. And the five employees now in question
were listed after T Szekely, the man with October 10, 1947, shown as his earliest
date of continuous employment. If the dates cited in the document can be con-
sidered accurate, as Wiesler believed them to be, Mathiesen presumably would have
been required to list Sweet, Moody, Encisco, Barron, and Myers on Respondent
Hillbro's priority list, properly in sequence, within the employee group of 10 with
February 15, 1945-July 21, 1946, priority dates, rather than as a single group,
immediately subsequent to T. Szekely and prior to the complainant herein. And
his failure to so list them might well have been considered indicative of a disposition
to accept the relative priorities indicated on the posted list. But the accuracy of the
dates shown on the posted document-and the extent of their conformity, if any,
with company records-has not been established. Any conclusion, therefore, that
the general foreman gave the five employees priority status subordinate to Szekely's
erroneously would have to rest entirely upon inference and surmise. And even if
such an error on the general foreman's part could have been established, for the
iecord, it could not be considered sufficient to prove that Wiesler, with a conceded
October 11, 1947, priority date, was discriminatorily treated.) The available evi-
dence, therefore, will not warrant a conclusion that Wiesler lost a desired shift
assignment because of an improper priority allocation effectuated by Hillbro's general
foreman at the instance of the respondent labor organization.
And, consistently, I find nothing in the record adequate to sustain any contention
by the General Counsel that Respondent Hillbio delegated the establishment or
maintenance of its shift-assignment system to Respondent Union, or that the latter
organization effectively "determined" any shift assignments.
4. Wiesler's discharge and its aftermath
a. The discharge
On the morning of Saturday, October 6, 1956, the complainant caught the attention
of Coon and complained of a headache. As a witness, Wiesler described himself as
on the verge of a nervous breakdown at the time He testified that his voice had
been agitated, that his eyes had been tear-burdened, and that he had hardly been
able to contain his distress as a result of the harassment, previously noted, which he
had experienced; he insisted that his condition must have been apparent to the day
foreman The complainant's testimony, which I credit in this connection, estab-
lishes his report to Coon that:
"If I have to go out and work on that floor with these men this afternoon," I
says, "you are going to have to get me a sub," I says, "I can't take any more
of it," I says, "I have tried to do my work. I tried to mind my business, and
I can't do either." I said, "It's gone so far that it affects me in this manner."
When the complainant suggested that he ought to be permitted to continue work in
the galley room as a marker of newspaper bundle wrappers, since he would be
relatively isolated there, Coon promised to see what he could do; shortly thereafter
Assistant Foreman Amador did instruct Wiesler to continue work in the galley
room, and to relieve other men on the floor only if someone left for lunch or a
coffee break.
The day foreman, whose testimony with respect to the incident substantially
matched Wiesler's, testified also that the complainant had said "something" to the
effect that he might be at work the following week, and might not; Coon also
recalled some reference by Wiesler to his shift assignment. The statements of the
complainant in this connection, however, impressed Coon as nothing more than
general conversation
On Monday, October 8, 1956, Wiesler reported at 7:45 a.m., despite his assigned
8 a m. shift start. When his starting time arrived, Assistant Foreman Harry Haig
gave him his work assignment. Questioned in direct examination, with respect to the
conversation which ensued, Wiesler testified as follows:
Well, he [Haig] was the only man on the floor. Paul Coon, the head foreman
was off on Monday and Amador didn't come in until around 9:00 or 9:15 and
I didn't even see Gene Lowe. I don't know whether he was there or not. He
had never given an order anyway . At this time I said to Harry, "Harry,
1 have to be ofj the rest of the week;" and I says, "I am not going to Yelsky
because I don't recognize Yelsky as my chairman." . . . "And further, Yelsky
doesn't even talk to me." [Emphasis supplied.]
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 619
Wiesler described his reference to the chapel chairman as an attempt to indicate
that he would not conform to the general practice followed by unionized mailers
in the combined mailroom desirous of time off ; his testimony establishes , absent
effective contradiction in this particular connection , that members of the respondent
labor organization who wished to arrange for time off would customarily advise the
chapel chairman of their wish to have a substitute called for work throughout their
expected period of absence. ( The extent of the chapel chairman 's actual authority,
within the Hillbro mailroom , to call substitutes for any regular situation holder
upon request, will be discussed elsewhere in this report .) In substance , the com-
plainant's testimony , taken at face value, will support a factual determination that
Haig was told he (Wiesler ) did not intend to request the chapel chairman to provide
his substitute . As a witness , the complainant testified that he then went to work
and assumed that Haig would arrange to have a substitute called for him. The
record establishes that he worked a full shift , and that he was also given some
overtime work and performed it, despite the fact that he did not feel well, at
Assistant Foreman Amador 's request.
Under cross -examination by Respondent Hillbro's counsel , Wiesler's testimony
with respect to this Monday conversation varied slightly from his initial recital.
While continuing to insist that Haig had been the only supervisor on duty at the
start of his shift, the complainant conceded not only that he had been unaware of
General Foreman Lowe 's possible presence , but that he had made no effort to search
for him Wiesler also testified that he did not "know" Respondent Hillbro 's night
foreman ; he then denied any personal knowledge of the fact , asserted by counsel,
that the night foreman of the combined mailroom customarily remained on duty
until 9 a.m. , approximately . His testimony does, however , establish his awareness
of the fact that Assistant Foreman Amador, designated as Day Foreman Coon's
replacement on his Monday "off" day, began work at 9 a .m. every morning while
on duty. The complainant conceded that he had said nothing to Amador , despite
the latter 's accessibility on October 8, about his need to absent himself. Questioned
again as to his conversation with Haig , Wiesler testified:
Well, he gave me his assignment . I said, "Harry , I have got to take the rest
of the week off. I am sick"; and I said, "I am not going to tell Yelsky because
I don't recognize the man as my chairman , and he doesn 't even talk to me
anyway." [Emphasis supplied.]
The complainant 's attention was then directed to his affidavit , before a Board field
examiner , dated November 6, 1956. It appeared to be consistent with his testimony
in direct examination and inconsistent with his later testimony , noted , since it did
not include an allegation that he had informed 'Haig of his illness . When he
acknowledged the affidavit , Wiesler was confronted with a later sworn statement,
with a November 20, 1956 , execution date, in which his conversation with Haig
had been reported in the following terms.
On Monday , October 8th , when Haig gave me my assignment for that day,
I told Haig I would have to take the rest of the week off. I did not tell him
why I did tell him, "I don't recognize Yelsky. That's why I am telling you."
I didn't tell him why I was sure he already knew that Yelsky didn't talk to me.
[Emphasis supplied ]
When asked to explain the variation between his prior sworn assertion that Haig
was given no explanation of his declared need to absent himself, and his ultimate
testimony in cross-examination to the effect that he had explained his need by
declaring himself to be ill, Wiesler , obviously perturbed , gave a confused reply. In
substance , he attempted to explain the discrepancy as evidence of "discontinuity"
of thought , caused by his mental condition
As a witness for Respondent Employer, Haig placed his conversation with Wiesler
on the 8th as "possibly" between 9 and 10 o'clock. His version, given in direct
examination , reads as follows:
Well, to the best of my knowledge , Mr. Wiesler came up to me and I don't
exactly recall how the conversation started, because we used to talk, anyway,
but during the course of conversation he mentioned to me the word-I wouldn't
be sure whether it was "I think" or "I will," but I think he said that, "I think I
will be off the rest of this week ." And then we kept on talking . He didn't
say anything definite to me, whether he wanted me to cover his shifts or whether
he was sick at the time, and so I just kept on with the conversation and whatever
we were talking about, we just kept on talking . Well, I didn't give
[Wiesler's comment ] any thought because, to my knowledge , he wasn't giving
me any instructions to see that his job be covered or anything , because he didn't
give me any definite orders that he was going to be off. [Emphasis supplied.]
620 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
The assistant foreman testified that he had made no effort, at the time, to communicate
the sense of his conversation with Wiesler to any superior. He testified also that
he could not now recall any statement by the complainant, at the time, as to the
reason for his possible absence.
Wiesler did not report for work on Tuesday, October 9, 1956; the available evi-
dence establishes that his absence was noted by Yelsky or Coon shortly after 8
o'clock, and that the latter requested the chapel chairman to locate a substitute.
(The testimony of Haig includes an assertion that he noticed Wiesler's absence on
the 9th, and that he brought the matter to Yelsky's attention after allowing the
complainant a 15-minute grace period. The assistant foreman went on to testify that
he then "mentioned" his prior conversation with Wiesler to the chapel chairman,
and that he repeated the complainant's alleged observation that he "thought" he
would be absent for the rest of the week; Haig stated, however, that he "left it up
to the chairman" to see if a substitute could be secured to cover Wiesler's situation
for the day only. On the witness stand Haig displayed a tendency, in my opinion,
to give self-serving testimony in an effort to avoid any imputation of responsibility or
blame for the complainant's ultimate difficulty. Upon the entire record, I have no
reason to doubt his assertion that he noted Wiesler's absence and mentioned it to
the chapel chairman, although Yelsky's testimony indicates that he could not recall
any such conversation; I have not been persuaded, however, despite Haig's testimony,
that his observations and comments were the causative factor behind Yelsky's effort
to get a temporary substitute for Wiesler's situation.)
A mailer previously summoned and waiting to replace an anticipated absentee
with a later shift start was assigned, instead, to cover Wiesler's situation; Yelsky
then called a regular situation holder, subject to compensation at the contractual over-
time rate, as a replacement for the absent employee with the later shift. By virtue
of these adjustments, a straight-time replacement was arranged for Wiesler, but his
absence, ultimately, made necessary the employment of a second substitute, com-
pensable at overtime rates. I so find. Late in the day, General Foreman Lowe
was apprised of the situation, but took no action.
Wednesday, October 10, 1956, was the complainant's scheduled offday. Unable to
reach Industrial Relations Counsel Mannon of the respondent enterprise on the 8th
or 9th, Wiesler spoke to him by telephone early Wednesday morning. A synthesis of
the available evidence with respect to this conversation establishes that Wiesler
reported the hai assment and "silent treatment" suffered by him, to such an extent that
he had become ill and would have to take some time off; he also reported, I find, that
he would have to see a doctor Mannon was asked to fix the time for a conference
,at which the complainant would be able to discuss his grievances, but observed that
he was preoccupied with "integration" problems and would not have time available
for a personal discussion. (In the light of all the relevant circumstances, Wiesler's
testimony that Marmon refused to arrange a conference because he was scheduled for
a 3-week "vacation" can, in my opinion, only be considered indicative of a failure
on the complainant's part to hear or interpret Mannon's comment correctly.) The
industrial relations counsel asked Wiesler, instead, to outline his "problems" over the
telephone. His testimony establishes that the complainant referred to "silent treat-
ment" to which he had been sujected, and to various instances of harassment.
Wiesler conceded, however, that he was not being ostracized by any management
representative Neither of the men, I find, discussed his arrangement to have his
situation covered while absent.
Later on the 10th Wiesler visited a physician, provided him with a case history
and a brief description of the work situation, and underwent a partial physical
examination. The doctor prescribed Equinol for his use; I have taken official notice
that this is one of a group of drugs commonly known as tranquilizers. (Wiesler's
testimony on cross-examination suggests-pursuant to a suggestion, perhaps inad-
vertent, by Respondent Employer's counsel-that he may have visited this physician
on the 17th of the month. Upon the entire record I am satisfied, however, that
Wiesler consulted the doctor on the 10th with the results indicated.) On the
evening of that day, however, Wiesler worked a full shift as a regular extra at the
plant of the Montebello News, a community newspaper. - The record establishes his
employment as a regular Wednesday night extra there, for some time. Questioned
about his apparent ability to work a full shift for this community newspaper while
claiming illness in connection with his Hillbro employment, Wiesler testified, essen-
tially, that his Montebello employment environment was more pleasant and did not
subject him to mental and emotional tension. I credit his testimony in this
respect.
On Thursday, October 11, 1956, Wiesler was again absent from the Hillbro plant.
Yelsky provided a "time-and-a-half" man as a substitute. When this came to
General Foreman Lowe's attention, I find, he questioned Coon; the latter reported
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 621
that Hillbro would have to have somebody for the 8 o'clock shift, since the firm lost
time when it secured belated substitutes. (The testimony of the chapel chairman as
the General Counsel's witness, taken to be true, would tend to support a determina-
tion that Lowe had questioned him on Thursday as to the reason for the employment
of "overtime" replacements for Wiesler; that he had then reported his inability to
secure straight-time substitutes on short notice; and that he had gone on to volunteer
an observation that "if somebody is always hollering about discrimination, certainly
we are going to be discriminated against. You just got through firing a man for
the same thing, not showing up for work and here's a man that takes off the whole
week whenever he wants and is not reprimanded by anyone, the Company or the
Union or anybody, and to me it is a clear case of discrimination." Lowe, however,
categorically denied any conversation with Yelsky on Thursday, testifying, instead,
that the chapel chairman had commented favorably about the decision to discipline
"anyone" for a failure to cover "their" situation, after he had been told to find a
regular replacement for Wiesler on Friday, October 12, under circumstances to be
noted. In this state of the record, I have been unable to conclude that Yelsky really
taxed Lowe with his failure to discipline Wiesler, prior to the general foreman's
decision to effectuate the latter's discharge. The testimony of Lowe and Yelsky,
considered as a whole, deserved characterization as vague in many respects; in the
light of their uncertainty with respect to many aspects of the situation now in issue
the evidence as a whole certainly cannot be said to establish that the comment
reported by the chapel chairman was made to Lowe on Thursday prior to Wiesler's
discharge or, indeed, to establish that it was made at all.)
Since the complainant was again absent on Friday, October 12, 1956, Lowe
decided to discharge him, allegedly.on the basis of his failure to make any arrange-
ment for the coverage of his situation. The general foreman's intention in this
regard, I find, was communicated to Marmon, who approved his decision. Yelsky
was also informed of the discharge; he was instructed to have a "straight time" man
available to replace Wiesler the next day. This was done. In a letter dated and
dispatched on Friday, however, Wiesler was advised by Lowe that:
This is to inform you of your discharge from the mailing room position you
held at the Hillbro Newspaper Printing Company. This discharge is for neglect
of duty; specific instance, failing to cover your position or notify any foreman
that you would be absent Tuesday, October 9, Thursday, October 11 and Friday,
October 12.
Early on the 13th, prior to his receipt of Lowe's letter, Wiesler telephoned Coon to
ask about his shift assignment for the week to come. When the day foreman asked
him whom he had notified of his intention to be absent for the week Wiesler desig-
nated Haig as the assistant foreman involved. Coon replied that he had not been so
advised, and suggested that Wiesler call upon General Foreman Lowe to discuss the
situation. The complainant, accompanied by Attorney Gerard H. Mosian, there-
upon reported to the Hillbro mailroom.
(Prior to his arrival at the Hillbro plant, the attorney had been "briefed" by
Wiesler with respect to the situation; his testimony indicates that he had been told,
among other things, that the complainant's name had been omitted from the mail-
room "mark-up" for the week to come. I so find. In the light of the available
evidence, it may be inferred, certainly, that Wiesler had previously been so advised
by Coon; despite the absence of any reference by Wiesler to such a comment by
the day foreman, no other source of information has been suggested If an infer-
ence can legitimately be drawn that Coon transmitted the information noted, it may
also be concluded that Wiesler had reason to believe, before he reached the plant,
that his job tenure might be in jeopardy. I so find.)
Taken as a whole the available evidence, in my opinion, will warrant certain
conclusions: Lowe told the complainant he was "through" and that a discharge letter
had been sent to him because he had walked off his job and let it go dark; Wiesler
denied the charge with some heat, insisted that Haig had been advised of his inten-
tion, and suggested that the assistant foreman be questioned; Haig, then interrogated
by Mosian as the complainant's attorney, reported the latter as having said, on the
Monday previous, either that he "thought he would" or that he "would" be absent for
the rest of the week; and the assistant foreman insisted, however, on his recollection
that Wiesler had not requested "definite coverage" for his situation.
(The testimony of Mosian in regard to this conversation was quite detailed. He
reported, at one point, the gist of a comment by Lowe which could be taken as an
implication that the general foreman had previously been unaware of Wiesler's
Monday talk with Haig; later, in cross-examination, he testified to the contrary effect.
In the light of the entire testimonial record, I have found it unnecessary to accept
Mosian's detailed-albeit somewhat contradictory-account of this conversation )
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After a reference by Lowe to his previous consultation with Maranon , in regard
to Wiesler 's termination , the latter indicated , I find , that he expected to contest the
propriety of his discharge ; he and Mosian then left.
With the testimony on record , a conclusion would certainly seem to be war-
ranted that Wiesler did , actually, notify Assistant Foreman Haig on the 8th of
the month of his intention to be absent from work for the balance of the week. I
so find. ( In this connection , I attach no importance to the possibility that Wiesler,
according to the assistant foreman, may have said merely that he "thought" he
would be absent . Whether the complainant described his intention with tentative
or positive language, the assistant foreman, in my opinion , could have, and reason-
ably should have, drawn an inference that he meant to be absent ) Wiesler's testi-
mony on cross-examination , however, that he gave a reason for his prospective
absence, has been effectively impeached . His second Board affidavit , previously
given, had included a positive assertion that he had not stated a reason for his
absence. Additionally , it has been noted that his initial Board affidavit and his
direct testimony in this case had significantly omitted any indication that he had
advised the assistant foreman of his indisposition . I am satisfied also, upon the
entire record , that Wiesler did not request Assistant Foreman Haig , expressly, to
have his situation covered for the duration of his expected absence. Nor does
he appear to have made any effort whatever to notify Assistant Foreman Amador,
the mailroom 's day foreman in Coon's absence , of his intention to be absent; I find
that he made none. ( The testimonial record , in my opinion , does establish the
presence of General Foreman Lowe at the Hillbro premises on the 8th of the month.
It is apparently conceded , however, that much of his day may have been spent in
conference away from his mailroom office. Since Wiesler would seem to have been
occupied , throughout the day, with regular mailroom assignments , his failure to
seek out the general foreman , specifically , to repeat statements previously made to
Assistant Foreman Haig cannot really be equated with his failure to contact Amador
as an error of omission .) The precise significance of Wiesler's failure to advise
Assistant Foreman Amador of his intention to absent himself, or to request the
latter to make arrangements for the employment of a substitute to cover his situa-
tion, will be discussed elsewhere in this report.
b. The offer of reinstatement
On the morning of October 15 , 1956, Wiesler and his attorney met Maranon and
Respondent Hillbro's general manager, V. F. Dunsmore, at the office of the latter.
The complainant , I find, was the principal spokesman in his own behalf; he outlined
the mailroom situation , from his point of view, with particular reference to the
"silent treatment" and petty harassment suffered by him. Additionally , he referred
to his impression that his relative priority status had been determined inaccurately.
And the circumstances of his discharge were discussed.
Taken as a whole, the testimony offered in this connection suggests , despite
Wiesler's inability to recall his own comments in detail that he insisted upon his own
reinstatement at the earliest possible date without loss of priority , correctly deter-
mined, and pay for any time lost on and after October 15 , the date of the conference,
which would have been his first day back at work but for Lowe's discharge action.
I so find. Mosian denied that any reference was made to backpay on the 15th; his
denial is not credited . In support of his reinstatement demand, also , Wiesler
conceivably may have referred to a possibility that Respondent Hillbro would be
charged with an unfair labor practice before this Agency or hailed into court for
some corrective action. ( Dunsmore and Maranon so testified ; they characterized
Wiesler's comment in this connection as a threat . The complainant , however,
denied any threat to involve the company in litigation . The testimonial conflict
revealed, however , would seem to be immaterial ; I have made no effort to resolve it.
Wiesler's right to file an unfair labor practice charge, or to invoke legal process upon
appropriate grounds, cannot be disputed ; his possible indication that such action
was under consideration in the event his reinstatement was denied, therefore, cannot
be characterized legitimately as an improper "threat" of the sort sometimes con-
sidered sufficient by this Agency to warrant a refusal of reinstatement by an
employer.)
Respondent Hillbro's general manager informed Wiesler that Mannon would
undertake a further investigation of the circumstances which had led to his dis-
charge, and the matter of his priority status; the firm's industrial relations counsel
indicated that his investigation might take several days , and that if any corrective
action, on either count , was deemed warranted , an appropriate adjustment would
be made. Wiesler expressed a desire for some decision with respect to his rein-
statement demand at the earliest possible moment , and the conference ended. (The
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 623 °
record suggests that Dunsmore and Mannon may also have questioned Wiesler
generally, during this conversation, with respect to the real significance, if any,
of recent developments in a jurisdictional conflict between the IMU and the ITU
then underway in Detroit; according to Mosian, Wiesler conceded his general
knowledge of the Detroit situation, but professed a lack of detailed information.
There was, indeed, some talk about the Detroit controversy, I find, but it represented
a digression from the principal subject under discussion.)
There is a testimonial conflict as to whether Dunsmore and Mannon made some
definite commitment as to the manner in which Wiesler would be notified of Re-
spondent Hillbro's decision with respect to his reinstatement. The complainant and
Mosian testified, positively, that Dunsmore promised to report Respondent Em-
ployer's decision to the latter as the complainant's attorney. Dunsmore testified that
he promised to let "them" know what Respondent Hillbro would do. The testimony
of Mannon, however, was to the effect that no definite commitment was made with
respect to the manner in which the firm's decision would be communicated Upon
the entire record, considered in the light of the probabilities inherent in the situation,
I find Mannon's testimony most credible, and conclude that no definitive commit-
ment was made as to the manner in which Wiesler would be notified of Respondent
Hillbro's reinstatement decision. Later on the 15th, 1 find, Wiesler received Lowe's
discharge letter. On the following day, he advised Dunsmore, by return mail,
with a copy to the general foreman, that he considered Respondent Hillbro's dis-
chaige action "null and void" since the basis indicated for it was erroneous and
without factual support:
In particular, I did not neglect any duty, did not fail to cover my position and
did not fail to notify the foreman in charge at the time, as stated. As I have
explained to you, I notified Harry Haig, who was in charge at the time, that
I would be off the days in question pursuant past usual procedure, to which
he did not voice any objection I required medical attention at the time.
The complainant characterized his discharge as violative of Respondent Hillbro's
then current contract and also violative of the Act, as amended. He requested a
personal reply as to the results of the inquiry Dunsmore and Mannon had promised
to make.
On the evening of Wednesday, October 17, 1956, at 6 p.m., approximately,
Wiesler received a telephone call; he was invited to Detroit to assist the IMU in
the controversy, previously noted, involving Respondent Union's sister organization
there. Although he completed his regular night shift at the Montebello News plant,
between 8 p.m. and 6 a m., the next day, the complainant arranged for excused
absence from this extra employment until further notice. He then went home
to pack, and left to catch his plane for Detroit on the morning of the 18th, at 8 a.m.,
approximately. He did not advise any Hillbro representative of his departure, I
find; nor did he suggest that his wife do so. And there is nothing in the record
to indicate that he even informed his attorney that he was leaving the city. Wiesler
testified that he gave Mosian no notice, and that he left no instructions as to the
action which the latter would have to take if notified, during his absence, of a
company decision in regard to his reinstatement.
On October 18, however, Dunsmore received Wiesler's letter. The completion
of Mannon's investigation was also reported to him. (The testimonial record will
support a finding, also, that Mosian telephoned Dunsmore on the morning of the
18th to ask whether a decision had been reached with respect to Wiesler's reinstate-
ment request and other grievances. The attorney was informed that no decision
had yet been made. Nothing was said, I find, about the complainant's absence from
the city.) Dunsmore made arrangements to confer with the industrial relations
counsel on the following Monday, and to reach a decision then with respect to
the complainant's employment status.
The conference thus arranged took place between 9 and 10 a.m. on Monday,
October 22, 1956. Mannon, I find, recommended Wiesler's reinstatement; he sug-
gested that it would be expedient to restore the mailer to work for several reasons,
among them, his disputed claim of illness justifying his absence, the pressure of other
problems with which the Hillbro management was burdened, and the possibility that
litigation thus might be avoided. (The Hillbro management, I find, did not accept
Wiesler's contention with respect to Lowe's lack of justification for discharge action.
Mannon held the opinion that Wiesler had actually failed to make adequate
arrangements for the coverage of his situation. Nevertheless, he recommended
Wiesler's reinstatement for the reasons noted.)
With Dunsmore's approval, Mannon then prepared a letter addressed to Wiesler
for the general manager's signature, which the latter expected to dispatch by special
delivery, registered mail that day. The complainant was advised therein, that:
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In accordance with understanding reached with you and your attorney during
our meeting Monday, October 15, we have further investigated facts involved
in your recent discharge and decided that, while we felt there was complete
justification for the discharge, we will be willing to rescind it and restore you
to your job.
Therefore, we request that you assume your regular duties at 8:00 A.M.,
October 23.
Prior to the letter's dispatch, Lowe was summoned to receive an explanation of
Dunsmore's action since the discharge was being reversed. Upon his arrival, Lowe
reported a rumor among the Hillbro mailers with respect to Wiesler's presence in
Detroit. Mannon's testimony that Lowe's report provided his first intimation that the
complainant might be unavailable for work on call has not been effectively contro-
verted; I so find. (Wiesler's statement that Lomas observed him in Detroit on
Friday evening, October 19, has not been disputed. And, under the circumstances,
an inference may be warranted that the rumor reported by Lowe may have originated
with a telephone report to some Hillbro mailers by the Respondent Union's presi-
dent. It is conceivable, therefore, that information about Wiesler's absence from
Los Angeles could have come to Mannon's attention before Monday, the 22d The
available evidence, however, will not clearly support such a conclusion.) The in-
dustrial relations counsel immediately telephoned Mrs. Wiesler; she confirmed Lowe's
report with respect to her husband's absence from the city, and reported that he
would be absent for 2 or 3 weeks. Mannon's testimony establishes, absent contra-
diction, that he identified himself as a Hillbro representative, calling to request
Wiesler's return to work; he suggested, I find, that Mrs. Wiesler communicate with
her husband. (Confronted with several leading questions, Mannon testified, also,
that the substance of his letter, previously dictated, was communicated to the
complainant's wife. Specifically, the record reveals his acknowledgment of the
correctness of a suggestion, first, that Mrs. Wiesler was told of Hillbro's desire that
Wiesler report for work, and, secondly, that she was asked to advise him to report
the next morning. In the absence of contradiction, this testimony is credited.)
The reinstatement letter was then dispatched; Mrs. Wiesler received it at 4:30
p.m., approximately. During the day, I find-whether before or after her receipt
of the letter is not clear-she communicated its substance to her husband's attorney.
On the evening of October 22, 1956, I find, Mosian attempted, without success, to
reach Wiesler by telephone. On the evening of the 23d, however, the latter finally
telephoned Mosian and his wife. The details of his conversation with the attorney
have not been reported; Mrs. Wiesler, however, advised him of Mannon's telephone
call early on the previous day, and her subsequent receipt of Dunsmore's letter. (As
a witness, Wiesler expressed a belief that she also read the letter to him. I so find.)
The complainant advised his wife-and Mosian possibly-that he would return as
soon as he could; he did not, however, make any attempt to estimate the date of his
arrival. Nor did he make any attempt to communicate with Hillbro, directly, in
regard to the reinstatement offer. And the record establishes that he did not instruct
either Mrs. Wiesler or his attorney to advise Respondent Employer of his expecta-
tions. (The testimonial record suggests that Wiesler may have lacked funds suffi-
cient to enable him to leave Detroit forthwith, his testimony does establish, absent
contradiction, that he did leave that city as soon as he had received an IMU check
for his subsistence and expenses.)
On Thursday or Friday, Mosian telephoned Dunsmore to request a conference
with respect to Wiesler's reinstatement. Arrangements for a meeting on the 30th
were made. Thereafter, on October 29, 1956, the complainant returned from Detroit;
at approximately 10 a.m. on the morning of the 30th, accompanied by his attorney,
he met Dunsmore and Marmon in the general manager's office.
At the outset, I find, Mannon strongly indicated Hillbro's displeasure at the fact
that Wiesler had made himself temporarily unavailable for immediate reinstatement,
by his departure from the city, after stating his desire for a prompt decision by
Respondent Employer with respect to his reinstatement demand. The complainant
was told that the firm considered his departure without notice irresponsible; Mannon
and Dunsmore charged that he had not acted in good faith Wiesler, however, de-
clared that, in the absence of any "commitment" by the respondent enterprise with
respect to the time which would be required for Mannon's investigation, he had not
felt obligated either to notify Respondent Hillbro of his departure or to advise them
as to the expected duration of his absence from the city. Pressed for a belated
explanation, he insisted that Respondent Employer was not entitled to one, and
expressed the opinion that the reinstatement letter had been sent by the firm on the
22d precisely because "everybody" knew he was then out of the city. On the basis of
Mannon's testimony, which I credit in this connection, I find that Wiesler was told
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 625
Respondent Hillbro would be unable to maintain mailroom discipline and morale
thereafter if it decided to reinstate him with full priority; he was advised, also, that
his attitude was considered an affront to the Hillbro management. Mannon stated,
therefore, that he would not recommend the complainant's reinstatement. Wiesler,
however, insisted upon his right to reinstatement with previously established priority,
reiterated his contention that he should not have been considered obligated to "sit
around" near Respondent Employer's "front steps" awaiting recall, and declared that
he could not afford to "pay" for the blunders of the mailroom foremen. The firm's
general manager, I find, finally stated that he wished to reconsider the matter, and
that Mosian would be advised of his ultimate decision.
Subsequently, in a conference with his industrial relations counsel, Dunsmore
announced his determination to waive Respondent Hillbro's recognized right to con-
firm Wiesler's discharge, or to deny him reemployment for 6 months; he declared
his intention to offer the complainant reinstatement at the "bottom of the board"
without priority. The general manager observed that such a disposition of Wiesler's
demand would give him regular employment, under existing circumstances, but that
it would also subject him to discipline; that it would eliminate any basis for a
contention that Respondent Hillbro had discriminated in his favor; and that it would,
thus, facilitate the maintenance of mailroom morale and discipline, generally.
Dunsmore's offer of reemployment on the terms indicated was communicated to
Mosian thereafter. He, in turn, relayed it to Wiesler, who rejected the offer, despite
the attorney's advice that he accept it, in these terms:
And I said, "Jerry, I am not going to go back under those conditions. It is
tantamount to putting me in the street." I said, "The chairman does the hiring.
He is going to hire everybody ahead of me. I would never get a chance. I
would starve to death showing up in there." I said, "I couldn't do it. I am
going to the Labor Board."
Essentially, the general manager's offer appears to have been construed by Wiesler
as an offer of substitute or extra work; on that ground it was rejected. On November
6, 1956, Wiesler's initial charges in the present matter were filed. The subsequent
history of this consolidated case has been noted elsewhere in this report.
Analysis and Conclusions as to Wiesler's Discharge and Hillbro's Refusal of
Unconditional Reinstatement
1. The discharge
a. Contentions
The General Counsel's argument with respect to Wiesler's discharge has already
been noted. In terms of the statute, he contends that Respondent Union attempted
to cause and did cause Hillbro to terminate the employment of the complainant on
October 12, 1956, for a reason statutorily proscribed. Hillbro's defense, essentially,
rests upon a contention that Wiesler was discharged for cause, namely, his failure
to cover his situation, or to make proper arrangements for its coverage, during a
period of presumptively necessary absence. And Respondent Union denies re-
sponsibility, within the meaning of the statute, for Respondent Employer's discharge
decision.
b. The obligation to cover a situation
The trade agreement between Respondent Hillbro and the Union, throughout the
period with which this case is concerned, included a commitment that every mailroom
employee would "faithfully perform" the mailroom work to which his foreman might
assign him. It also affirmed each foreman's right to discharge employees for neglect
of duty and other reasons And, with respect to journeymen situations, section 14
of the agreement provided that:
No journeyman or apprentice covered by this contract shall be required or
permitted to hold a situation of more than five days or five nights or a combina-
tion of days and nights equivalent to five, in one financial week. Establishing
or maintaining situations composed of less than five shifts is prohibited Any
employee covering a situation is entitled to employ in his stead whenever so
disposed, as a substitute, any competent man, without consultation or approval
of the foreman of the otlce, but this substitute must be selected according to
the order of priority. Provided, the office has first call on available men for
employment as extras. [Emphasis supplied.]
560940-61-vol 127-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under this contractual language, each of the Respondents has long recognized that
regular situation holders have had the right to absent themselves from work "for
any reason" only if arrangements have been made, somehow, for the proper coverage
of their situation by a competent substitute employee. The failure of a regular
situation holder to arrange for the proper coverage of his situation during any period
of absence, however, has routinely been considered a serious offense-sufficiently
serious, indeed, to justify discharge.
The common consensus of the present Respondents, in this connection, was
reflected, also, in certain additional contractual provisions. Their trade agreement,
for example, contained a provision-embodied in section 12, specifically-which rec-
ognized by implication a foreman's right, under certain circumstances, to discharge
or discipline a journeyman for reliance upon an incompetent substitute to cover his
situation, since it foreclosed the foreman's right to take such action if the journeyman
involved had not been notified of his substitute's incompetency. Section 15 of the
agreement also included a reference to the five shifts constituting a situation, and a
provision that employees required to work on their regular offday or ofnight, or on
a sixth or seventh shift within any workweek, should be paid at overtime rates.
There was also a provision that:
The Employer shall not be obligated to accept situation holders as substitutes
on their off-days or off-nights, but may require regulars to cover their own
situations.
And in the following section, there was a provision that extras hired as substitutes
should receive an additional allowance over the contractual journeymen rate, to be
paid by the regular situation holder replaced.
Under these contractual provisions, Hillbro mailers who, for one reason or another,
found it necessary to be absent from work were free to call their own substitutes,
subject only to the practical requirement that any substitute called would have to
be a straight-time man of proven competency, selected on the basis of priority. The
mailroom employees of the respondent enterprise were also free, however, as a
matter of custom and practice, to enlist the assistance of the respondent labor organi-
zation's chapel chairman, directly, in their effort to locate competent substitutes.
In this connection, the testimonial record will support a conclusion, in my opinion,
that regular situation holders, wishing to cover their situations with the chapel chair-
man's assistance, could satisfy the operational needs of their employers and discharge
their own responsibilities, in this respect, if the chapel chairman reported his ability
to provide competent straight-time substitutes. In other words, if any regular mailer
did request the chapel chairman's assistance and the latter proved able to provide a
proper substitute for the duration of the regular situation holder's anticipated period
of absence, the employee in question could legitimately consider his situation covered.
He could then absent himself without fear of discipline or discharge. But if the
chapel chairman was unable to give any assurance that the situation of a prospective
absentee would be covered by a competent straight-time substitute, the situation
holder involved would have to seek a substitute himself, or, perhaps, request some
authorized management representative to excuse his prospective absence, in any
event.
The Hillbro mailers were also free, of course, to solicit permission for prospective
absences, initially, from any authorized management representative. (When the in-
tegrated mailroom was established, Respondent Hillbro posted a list of management
representatives authorized, inter alia, to grant direct employee requests for time off;
the list was posted, I find, at two locations, both within the mailers' locker room and
adjacent to the board at which they signed Respondent Employer's attendance record.
General Foreman Lowe does not appear to have been listed. The other foremen and
assistant foremen listed were designated as the "Big Six," informally; the group
initially included Day Foreman Coon, Night Foreman Wilson, and Assistant Foremen
Szekely, Haig, Cobb, and Schneider. Within a short time after September 3, 1956,
Haig's name was removed from the list, and that of Assistant Foreman Amador
substituted; this change appears to have occurred within the second or third week
after the establishment of the combined operation. 1 so find )
The available evidence establishes that Mathiesen and Lowe, in their capacity as
general foremen of Respondent Employer, considered themselves authorized to ex-
cuse employees from attendance for any reason whatsoever-and that they were, in
fact, so authorized-upon the receipt of satisfactory assurance that a competent
straight-time substitute would actually be available for service as a replacement.
Additionally, I find these managerial representatives considered themselves author-
ized to excuse employees from attendance for good cause-sudden illness, for ex-
ample-without regard to any substitute's availability; taken as a whole, the testi-
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 627
monial record establishes that they possessed such authority also. In such cases, the
authorized managerial representative involved would routinely attempt, usually with
the chapel chairman's assistance, to cover the shift assignments of any absent em-
ployees with "regular substitutes" or "extra" men, compensable at straight-time rates.
If straight-time replacements happened to be unavailable, however, to fill any unan-
ticipated vacancy, the management was authorized, I find, to call any regular situation
holder for extra-shift work, compensable at overtime rates; in such cases, absent
situation holders, excused for good cause, would not be held responsible for their
Employer's inability to cover the shift assignments involved with competent straight-
time men.
The record also establishes, as the General Counsel has noted, that Mathiesen and
Lowe, Respondent Employer's general foremen, upon their receipt of information
that a mailer would be absent, generally notified the chapel chairman to procure a
replacement, if one could be procured, and that they "took for granted" the ability of
the chapel chairman, thus notified, to supply the necessary replacement. An infer-
ence would certainly seem to be warranted, therefore, that the Hillbro management
usually delegated the task of substitute procurement to a representative of the
respondent labor organization, without attempting to supervise his performance in
that role very closely Such an inference, however, would not impair the validity
of the parallel factual conclusion, previously noted, that the representatives of the
Hillbro management in the mailroom were themselves authorized to excuse employees
from work, and to employ competent straight-time substitutes, if possible, or com-
petent "overtime" replacements, if necessary.
c. The failure of Wiesler to cover his situation
In the light of the present record, a conclusion would seem to be warranted that
Wiesler failed to meet his acknowledged responsibility for the coverage of his situa-
tion, from October 9 through 12, by compliance with established patterns of pro-
cedure at Respondent Employer's plant.
As Respondent Hillbro's counsel has observed, the complainant made no effort
whatsoever to secure the official approval of an authorized company representative
for his projected absence from work. There can be no doubt that the names of the
"Big Six" management representatives authorized to give such approval were known
to him; his own testimony so indicates. Specifically, I find, he knew that Amador
had replaced Haig as the "second-in-charge" within the mailroom on the day shift;
his awareness of the fact that Assistant Foreman Haig no longer possessed the
authority to excuse employee absences may therefore be inferred. Haig, it is true,
did not remind Wiesler of the fact that he had been deprived of such authority;
under the circumstances, however, his failure to do so cannot be said to have misled
the complainant to his detriment. The record shows that the latter made no effort
even to inform Assistant Foreman Amador of his previously declared intention,
despite Amador's acknowledged accessibility for a major part of the October 8 day
shift.
For the sake of discussion, we may assume that Assistant Foreman Haig was
actually the only management representative present in the mailroom when the
complainant chose to announce his intention to be absent for the balance of the
week Wiesler, however, surely must be charged, as Respondent Hillbro's brief puts
it, with notice that*
any statement made to Haig was ineffectual for any purpose and could
not possibly set in action the procedures to cover [his] situation . . .
Even though his subsequent failure to seek permission for the projected period of
absence from Lowe may, perhaps, be excusable for the reasons previously noted,
his failure to make any effort to communicate with Assistant Foreman Amador,
or to seek permission for his absence from the latter pursuant to the established
custom and practice, has not been adequately explained (Due consideration has
been given to the testimony of Wiesler that the treatment accorded him by his fellow
employees within the mailroom agitated him and left him emotionally and mentally
disturbed. Since it is clear, however, that he possessed sufficient self-control to work
a full shift on October 8, and to undertake some overtime work as well, no con-
clusion that tension or agitation was responsible for his failure to request Amador's
permission for his projected absence would be warranted. And I cannot conclude
that his error of omission in this respect ought to be overlooked or excused.)
Wiesler, therefore, cannot be said to have covered his situation personally; neither
can he be said to have followed, properly and completely, the customary procedure
with respect to arrangements for excused absence-which procedure, essentially,
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have shifted the burden of substitute procurement, if his absence were ex-
cused , to Respondent Employer.
In Respondent Hillbro's behalf, it is also argued that Wiesler's statement to Haig
on the mailroom floor-even assuming , for the sake of argument, that the assistant
foreman was a management representative then authorized to approve or excuse
absences-was insufficient to call for managerial action. While I cannot agree that
the statement thus challenged was so vague as to leave Haig reasonably in doubt as
to the complainant's intention, I have already found the available evidence insufficient
to establish that the latter referred to his illness to justify his proposed course of
action. I have found, also, that Wiesler did not seek Haig's permission to absent
himself, and that he did not request the assistant foreman, specifically to arrange for
the procurement of his replacement. In the light of these conclusions I find merit in
the ultimate contention of Respondent Employer, noted, that Wiesler's statement was
actually insufficient to put the mailroom management on notice that it was being
asked to arrange for the coverage of his situation.
It would seem to be the General Counsel's contention, essentially, that Haig ought
to have construed Wiesler's comment, nevertheless, as a request for permission to
be absent, and that the complainant was, therefore, free to construe the assistant
foreman's failure to voice an objection as an indication of acquiesence. Such a
contention, however, goes too far. (When asked to explain why he did not request
Haig, expressly, to arrange,,for the coverage of his situation, Wiesler testified-in
a passage ultimately stricken at the General Counsel's request-that a Board field
examiner had previously advised him, "If you tell the foreman that is all that is
necessary. From then on it's his responsibility." I find nothing in the record,
however, which would warrant an inference that, pursuant to established practice,
responsibility for the coverage of a situation could be shifted to Respondent Hillbro's
mailroom supervisors if they were told that the regular situation holder expected
to be absent. Rather, the available evidence would seem to require a conclusion
that the firm's management normally assumed responsibility for the coverage of
a situation only after advising the prospective absentee, in some fashion , that his
absence would be approved or excused, and that such advice would be given an
employee, normally, only if an appropriate supervisor had been given adequate
reason to believe that the absence in prospect was necessary, or, alternatively, that
a competent straight-time substitute was procurable.)
There is no record indication that the mailroom management of Respondent
Employer, under established custom or practice, was ever expected to consider the
mere announcement of a mailer's projected absence sufficient to require the assump-
tion of his recognized obligation to cover the situation, absent some indication of
official disapproval. And since the obligation to cover a situation is generally
conceded throughout the newspaper industry to be the mailer's obligation, the
determination herein that any mailer desirous of permission to absent himself ought
to be required to make his request for such permission explicit cannot be said to
impose an undue burden.
d. The liability of the Respondents
It is contended, in the General Counsel's behalf, that Respondent Union caused
Hillbro to discharge Wiesler, under the circumstances herein found, and that Rem
spondent Employer took such action at the Union's instance, since "uncontroverted
evidence" establishes that:
. . . at the request of the Chapel Chairman of the Union to the General Fore-
man who was also a Union member, a letter of discharge went out to the
Charging Party, the reason for the discharge being stated as his failure to
cover his situation. . . .
And to establish the consequent statutory violation, the General Counsel further
argues that Respondent Union actually caused the complainant's discharge, not for
the reason stated in Respondent Employer's letter of discharge, but because he was
not an organization member.
These contentions, in my opinion, have not been sustained. Elsewhere in this
report it has already been noted that Chapel Chairman Yelsky's testimony cannot,
realistically, be evaluated as sufficiently reliable and probative, absent corrobora-
tion, to establish that Lowe's termination decision was actually made pursuant to
his request, suggestion, or insistence. And even if the chapel chairman's testimony,
considered in its total context, could be said to deserve evaluation as sufficient to
support a determination that he did suggest Wiesler's discharge, despite Lowe's
testimony to the contrary, the General Counsel' s ultimate contention with respect
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 629
to the impropriety of Respondent Employer's motivation for the termination in
issue would have to be rejected. For reasons noted elsewhere in this report, I am
satisfied that the complainant herein-although legitimately in need of a respite
from job tension, and medical advice or treatment-did not take action reasonably
calculated to assure the coverage of his situation, for the duration of his expected
period of absence, and that neither of the Respondents herein can be held responsible
for his failure to follow established Hillbro custom and practice in that connection.
This being the case, the chapel chairman's comment, suggestion or request, even
if made, would seem to deserve characterization as nothing more than a reminder,
addressed to the Employer's general foreman, that the complainant had rendered
himself subject to discharge for neglect of duty. Compare Essex Wire Corporation,
113 NLRB 344, in this respect. I so find.
(There is testimony in the record, which the General Counsel has made no effort
to controvert, that a number of employees, presumptively members of the respondent
labor organization, had previously been dismissed, each for some failure to cover
his situation. And there can be no doubt, upon the entire record, that, under in-
dustry custom and practice, the obligation to cover mailroom situations has been
considered an employee obligation, and that an employee's failure to discharge that
obligation, or to assure himself of its assumption by the chapel chairman or mailroom
supervisor, has routinely been considered cause for discharge.)
Suggestions, addressed to an employer, that one of his employees may properly
be subject to discharge for cause cannot be considered open to administrative pro-
scription under the Act, as amended, merely because a labor organization's pre-
sumptive agent may appear to have been their source. Compare Continental
Overall Company, 116 NLRB 1588, 1598-1600; Queens-Premier-Williams Fur
Dressing Corp., 92 NLRB 42, 49-51, on this point.
These last observations, of course, reflect a rejection of the General Counsel's
basic contention that the reason Lowe gave for Wiesler's discharge was a pretextual
one.
In the light of the available evidence, it may be possible to argue, perhaps, that
the failure of the complainant to cover his situation, or to take necessary and
appropriate action to assure its coverage, would have been corrected, voluntarily,
by the chapel chairman of the respondent labor organization, and that the Hillbro
management would have been persuaded not to rely upon the complainant's error of
omission to justify the discharge, but for his known IMU adherence and his con-
comitant refusal to maintain union membership. The testimonial record, however,
will not support such a conclusion. It does, of course, establish that the Hillbro
management effectively delegated responsibility for the coverage of Wiesler's situa-
tion to the Respondent Union's chapel chairman. And it does establish that the
latter arranged to have his position filled, for several days, by mailers compensable
at overtime rates. In the light of evidence sufficient to warrant a conclusion that
Wiesler's relationship with his fellow employees had deteriorated, it might be argu-
able, at the very least, that Yelsky's failure to procure a straight-time replacement
for him stemmed from the chapel chairman's determination not to help him dis-
charge his obligations. Taken as a whole, however, the testimonial and documentary
record will not support a definitive determination that the Respondent Union's shop
representative failed to put forth his best efforts in Wiesler's behalf, or that his pre-
sumptive failure to locate straight-time substitutes reflected the consummation of a
deliberate effort on his part to comprise the latter with the Hillbro management.
(It will be recalled that the language of section 15 of the Newspaper Agreement
then operative relieved Respondent Hillbro of any obligation to accept situation
holders as substitutes on their offdays or offnights and permitted it to require regular
situation holders, instead, to cover their own situations.)
Various documents received in evidence establish that Respondent Employer
had no regular substitutes available for call, during this period, and that eight
situations listed on Mathiesen's situation schedule had not yet been filled by regular
situation holders. The possibility that some mailer's unexpected absence might
necessitate the procurement of a "time-and-a-half" replacement was thus ever
present. The use of such replacements for Wiesler, therefore, cannot, alone, be
taken to warrant an inference that available straight-time men were deliberately
overlooked by the chapel chairman. With respect to Respondent Employer, also,
Lowe's willingness to forgo immediate disciplinary action, after he learned of
Wiesler's absence from work without proper notice or permission, has been noted.
Such forbearance on the general foreman's part, certainly, would tend to impair the
validity of any inference that Lowe actually welcomed the opportunity to dispense
with Wiesler's services; it would suggest, rather, that he was preoccupied with
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Employer's mailroom manpower problem, and reluctant to take quick
action to dispense with the services of a regular situation holder. I so find.
In the General Counsel's brief, reference is made to the fact that, under the trade
agreement effective throughout the period with which this case is concerned, Respond-
ent Hillbro's mailroom foremen functioned in a dual capacity, by virtue of their
presumptive obligation to promote Respondent Union's interest in connection with
the discharge of their supervisory functions; upon this ground the General Counsel
asserts that any action taken by these foremen must be attributed to both of their
respondent principals.
Even the acceptance of this major premise, however, could not sustain a con-
clusion that Wiesler's discharge was effectuated for statutorily proscribed reasons.
The mere fact that Hillbro's general foreman knew, when he dispatched the dis-
charge letter previously noted, that the complainant was not a union member, does
not make the reason given for his discharge action a pretextual one. Since con-
tractual cause for Wiesler's discharge existed, Lowe's alleged right or duty to
function in a dual capacity, both as the representative of his Employer and the
respondent labor organization, may be disregarded as immaterial.
e Conclusion
Upon the entire record, therefore, I find the General Counsel's double contention-
that Wiesler's initial discharge by Respondent Hillbro on October 12, 1956, was
improperly motivated, and that Respondent Union ought to be considered responsi-
ble for that discharge action-lacking in merit. Taken as a whole, the available
evidence has led me to conclude, rather, that the complainant's termination was
effectuated because of his failure, possibly inadvertent, to take necessary and
appropriate action to assure the coverage of his situation during a period of
excusable absence Although I cannot accept Respondent Hillbro's ultimate con-
tention that Wiesler's dismissal was effectuated for "good and sufficient" cause-to
the extent that acceptance of such a contention might imply recognition of his
guilt in terms of willful neglect of duty-there can be no doubt that he did not
follow established custom and practice, within the Hillbro mailroom, with respect
to the coverage of his situation, and that his failure to comply with established pro-
cedures in this respect left him subject to discharge, under the trade agreement
then effective and viable company policy.
2. The refusal of reinstatement
With respect to Respondent Hillbro's ultimate refusal to reinstate the complainant
without loss of priority, similar conclusions would seem to be inescapable.
a. Contentions
In this connection, it seems to be the General Counsel's contention, essentially,
that Respondent Hillbro's management representatives made a specious offer of
reinstatement with priority to Wiesler-possessed of full knowledge that he would
be unable to resume work when requested-and then relied upon his failure to
report for work to justify their ultimate refusal to reinstate him with priority status
unimpaired. The liability of Respondent Union in this connection, outlined in the
General Counsel's brief, allegedly would rest upon a determination that:
Since the original discharge was occasioned by Respondent Union, based on
the fact that the Charging Party was not a member of Respondent Union, the
later refusal to reinstate for failure to appear in accordance with the offer of
reinstatement, being part of the res gestae, can be attributed to Respondent
Union.
Aside from this contention-essentially, that Respondent Hillbro's ultimate refusal
to reinstate Wiesler without loss of priority represented the culmination of a course
of conduct initiated at the suggestion or insistence of the respondent labor organiza-
tion-the General Counsel had made no effort to link Respondent Union, specifically,
with Dunsmore's ultimate decision to offer the complainant reinstatement without
priority status.
b. The reinstatement offer
The available evidence, in my opinion, will not sustain the General Counsel's
contention that Dunsmore's initial offer of reinstatement without qualification to
Wiesler was specious,,or that he .made it, at Mannon's suggestion , with "full knowl-
edge" that Wiesler would be unable to meet its terms.
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 631
In the course of his testimony, the complainant conceded that his reinstatement
demand, presented during the October 15 conference, had been couched in terms of
an imperative nature, and that a quick decision by the Hillbro management, with
respect to each of his grievances, had been requested. And whatever the consensus
of the conference participants may have been with respect to the identity of the
person or persons to be notified of any management decision, the record will support
a conclusion that Wiesler, by his October 16 letter, addressed to Respondent Hillbro's
general manager, himself requested personal notification. Nevertheless, it is estab-
lished that he left the city, and thus rendered his immediate reinstatement impossible,
for a period of indefinite duration without notice to Respondent Hillbro or his at-
torney. In the light of this conceded fact, it would seem to be clear that a course of
conduct attributable solely to the complainant herein created the situation which
eventually led to his loss of a reinstatement opportunity And I so find. There is
a suggestion in the record, based upon Attorney Mosian's "present impression" as
to the course of events, that Mrs Wiesler may have informed him of the complain-
ant's Detroit trip, on the 20th or 21st of the month, in the course of a social con-
versation; he testified categorically, however, that he had telephoned Dunsmore on
the morning of October 22 to ask whether any decision had been made with respect
to the complainant's reinstatement, and that he had reported Wiesler's absence from
the city during his conversation with Respondent Hillbro's general manager Taken
at face value, this testimony was presumably offered because of its tendency to
support an inference that the Hillbro management proceeded to offer Wiesler rein-
statement only after being apprised that he would presumably be unable to accept
Dunsmore, however, testified that he had not received any telephone call whatever,
from Mosian on the date indicated.
The evidentiary conflict in this respect need not, in my opinion, be resolved.
Considered as a whole, Mosian's testimony would almost compel an inference, con-
trary to the General Counsel's view, that his telephone conversation with Dunsmore-
if there was one-occurred shortly after the actual dispatch of the reinstatement
letter And it would seem to be clear on the basis of the attorney's testimony, that
Dunsmore's necessarily antecedent decision to send the letter could not, therefore,
have been precipitated by information with respect to Wiesler's unavailability.
Additional support for this conclusion may be found, also, in the attorney's testimony
(1) with respect to Dunsmore's recommendation that an effort should be made to
get word of the reinstatement letter to Wiesler, and (2) with respect to the general
manager's further suggestion that an effort might be made to get him back as soon
as possible. Mosian reported no threat by Dunsmore to revoke the reinstatement
offer in the event of the complainant's failure to report as requested.
The testimony of Industrial Relations Counsel Marmon, also-which I credit in
this connection-will clearly support a conclusion that he and Dunsmore were first
apprised of the possibility that Wiesler might be out of the city, actually, when they
advised General Foreman Lowe of their decision, previously reached, to offer him
immediate reinstatement. (Any conclusion to the contrary would have to rest upon
an inference that they were already aware of the earlier gossip in the mailroom, with
respect to Wiesler's absence from the city ) Although the record, considered as a
whole, does establish that Dunsmore actually signed and dispatched the reinstate-
ment letter drafted by his industrial relations counsel after Wiesler's reported absence
from the city had been confirmed by his wife, it also establishes that Mrs. Wiesler was
informed, expressly, that Hillbro would reinstate her husband and that his presence
at work, on his regular shift the next day, was desired. She was also informed, the
record shows, that a letter to that effect was on its way. And she was advised to get
in touch with her husband, to apprise him of the situation. In the absence of any
persuasive indication, therefore, that Wiesler's timely return would have been
physically impossible, the General Counsel's contention that the reinstatement offer
was -a specious one, based upon the calculated hope or expectation of the Hillbro
management that the complainant would be unable to report for work, can only be
said to rest upon surmise. And the fact that no effort was made to give the firm's
offer of reinstatement the character of an ultimatum would certainly weaken the
thrust of any such supposition. The available evidence, in short, will not effectively
sustain a contention that Respondent Employer 's management representatives delib-
erately created a situation calculated to render a default by Wiesler inevitable.
c. Wiesler's reaction to the offer
Next , the failure of anyone associated with the complainant to solicit Respondent
Hillbro's forbearance should be noted. There is nothing to show that Mrs. Wiesler
questioned the justice , propriety , or feasibility of Respondent Hillbro 's request that
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her husband report for work within 24 hours. Elsewhere in this report, I have noted
that Mosian's testimony about his telephone conversation with Dunsmore on October
22 was disputed; despite my determination that the record conflict thus created with
respect to his alleged telephone call need not*be resolved, it may be noted that,
even if credited, the attorney's testimony would merely warrant a finding that he
reported the possibility of Wiesler's inability to report for work as requested but did
not go on to request a postponement of Respondent Hillbro's proposed reinstatement
date.
The ultimate failure of Wiesler, himself, to apprise Respondent Hillbro, personally
or vicariously, of his unavailability for immediate reinstatement , coupled with his
failure to provide timely information as to the date of his expected return, provided
Respondent Employer, in my opinion, with sufficient cause to review its previous
reinstatement decision. Nevertheless, no immediate reversal of the firm's position
was announced. The record establishes that when the complainant's attorney tele-
phoned Dunsmore, on October 26, to arrange for a conference on the 30th of the
month, the general manager willingly agreed; nothing in Mosian's testimony suggests
any comment by Dunsmore to the effect that Wiesler's failure to report on October
23 had already been evaluated as sufficient to justify withdrawal of Respondent
Employer's reinstatement offer. Only after the conference of the 30th was a deter-
mination made. The conduct of the complainant after the 15th of the month, and
his attitude when confronted with a request for pan explanation, appear to have been
the factors which then led the Hillbro management to withdraw the firm's uncon-
ditional October 22 reinstatement offer. I so find. (No reference to the original
discharge of Wiesler by Lowe appears to have been made. And Mannon made no
effort, I find, to review the results of his earlier investigation, or to explain Respond-
ent Employer's initial decision to offer reinstatement.)
Mannon's testimony, which I credit in this connection, establishes that the position
of Respondent Hillbro, in the light of the relevant circumstances, was explicated to
Wiesler and his attorney essentially as follows:
I told him that I thought he had acted in bad faith under the circumstances and
that it was downright irresponsible for him to come into our offices with an
attorney and make all the pressures, all the pressure moves he had and then
eliminate himself from the scene without even the slightest word to us about
whether he was reversing himself, going to move to Detroit, or going to be
gone a week or a month or what. I told him after all that we had a manpower
problem in our plant, and we felt that if we were going to take him back we
had a right to his straight-time services and I told him that I thought we were
entitled to some sort of an explanation for this kind of action . .. .
Aside from any merit which this exposition might have, it provides a complete review
of the motive behind the firm's ultimate decision to deny Wiesler an unconditional
reinstatement. Consistently with Mannon's credible testimony noted, I find that the
postdischarge conduct of the complainant, and his refusal to offer an explanation or
apology, motivated the decision of the Hillbro management representatives to with-
draw their October 22 reinstatement offer. No adequate basis has been laid for
any determination, to the contrary, that the representatives of Respondent Employer
reached their decision entirely, or even partially, on the basis of any consideration
statutorily proscribed.
In the light of this conclusion, I have found it unnecessary to evaluate Respondent
Hillbro's further contention that its final offer to reinstate Wiesler without previously
established priority was a fair offer, under the circumstances, calculated to assure him
regular employment as a situation holder.
The testimony of Wiesler reveals an intimation-which the General Counsel has
not echoed-that the Hillbro management may have been induced to "harden its
heart" against his reinstatement without loss of priority because of his Detroit activity
as an IMU protagonist. Upon the assumption, tentative at best, that such a conten-
tion , advanced by the complainant himself, may require disposition , I find myself
constrained to reject it. There is nothing in the record to show that Respondent
Hillbro or any other Hearst enterprise had a direct interest in the controversy be-
tween the IMU and Respondent Union's Detroit sister organization . References to
the Detroit situation by the parties present at the October 30 conference appear to
have involved nothing more than an exchange of views and information ; Wiesler and
Mosian have not suggested that Dunsmore and Mannon expressed disapproval of the
complainant 's Detroit role, in any way. Upon the entire record, I find that his
activity there played no part in Mannon's opposition to his reinstatement , and that
it likewise played no part in Dunsmore' s ultimate decision to offer him reinstatement
without' priority status. - • '
HILLBRO NEWSPAPER PRINTING COMPANY, ETC. 633
Since I have found that the decision of the Hillbro management representatives to
withdraw the October 22 reinstatement offer did not involve discrimination with
respect to Wiesler's hire or tenure of employment, reasonably calculated to encourage
membership in Respondent Union, or to discourage membership in any other labor
organization, the Union cannot be said to have caused or attempted to cause Re-
spondent Employer to discriminate against the complainant contrary to the statute.
Even if the available evidence could be interpreted, however, to require a deter-
mination that Respondent Employer's action had involved discrimination reasonably
calculated to promote a statutorily proscribed objective, it could not, in my opinion,
sustain a determination that Respondent Union had caused or attempted to cause
such employer action. Clearly, Respondent Hillbro's general manager and its indus-
trial relations counsel cannot have acted in a dual capacity, both for their Employer
and the respondent labor organization. And not even a thread of suggestion that
any representative of Respondent Union communicated with officials in regard to
Wiesler's reinstatement can be found in the record. At best, it can only be argued
that Dunsmore's ultimate refusal to reinstate the complainant without loss of priority,
because of his failure to report for work in accordance with the terms of a reinstate-
ment offer, was "caused" by Respondent Union because it was part of the res gestae
of the case and represented the culmination of a series of events initiated at the
suggestion or insistence of an accredited spokesman for the respondent labor organi-
zation. This contention, of course, must be rejected, on two grounds at least:
primarily, because the record, previously noted, will not sustain a conclusion either
that (1) Wiesler's discharge was effectuated at Yelsky's suggestion or insistence, or
(2) it was effectuated discriminatorily by Lowe, in his capacity as a dual agent of
Hillbro and the respondent labor organization, to encourage membership in the
latter body and to discourage IMU adherence; and, secondarily, because the record,
taken as a whole, establishes that Wiesler's postdischarge conduct, his refusal to
explain it, and his refusal to proffer an apology for it provided the Hillbro manage-
ment representatives with a separate, independent justification for their decision to
withdraw the firm's prior unconditional offer of reinstatement. I so find.
d. Conclusion
Upon the entire record, therefore, I find that the decision of Respondent Hillbro
to withdraw its October 22 reinstatement offer, and to provide Wiesler with reem-
ployment, presumptively as a regular situation holder, without his previously
established priority, did not involve discrimination in regard to his hire or employ-
ment tenure, or any term or condition of his employment, reasonably calculated
to encourage or discourage membership in any labor organization. And since the
contentions of the General Counsel with respect to the propriety of this decision
have been rejected, Respondent Union, likewise, cannot be held to have caused
or attempted to cause employer discrimination against the complainant contrary
to the statute.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Hillbro and Respondent Union set forth in section
III, above, occurring in connection with the operations of Respondent Hillbro
described in section I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and, if continued, would
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents have each engaged in an unfair
labor practice, I will recommend that each of them cease and desist therefrom, and
take certain affirmative action, including the posting of appropriate notices, designed
to effectuate the policies of the Act, as amended.
Specifically, it has been found that certain union-security provisions embodied
in the Newspaper Agreement executed by the Respondents effective September 1,
1955, and thereafter, exceeded permissible limits. In the light of this determination,
it will be recommended that the Respondents cease and desist from the maintenance,
effectuation, or enforcement of these union-security provisions. Additionally, it
will be recommended that the Respondents cease and desist from the maintenance,
effectuation, or enforcement of any such security provisions in agreements nego-
tiated or executed to extend, renew, modify, or supplement the Newspaper Agreement
in question.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is an allegation found in the amended complaints that, pursuant to the
provisions of the trade agreement in issue-taken in conjunction with the provisions
of the General Laws of the International therein set forth-designated employees
of Respondent Hillbro were compelled to pay, and did pay, moneys , dues, and
initiation fees to Respondent Union as a condition of employment . The record in
this consolidated case indicates a consensus that this allegation was intended to
serve as the foundation for a contention by the General Counsel that the reimburse-
ment of all such moneys ought to be considered appropriate and necessary to expunge
the effect of the unfair labor practices found. Upon the entire record , evaluated
in the light of the applicable Board precedents , this suggestion with respect to the
necessity and propriety of such a remedial recommendation must be considered
meritorious . Virginia Electric and Power Company v. N.L R.B., 319, U S. 533,
539; United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S.
Brown-E. F. Olds Plumbing and Heating Corporation ), 115 NLRB 594, 598. The
record shows that, by the maintenance , effectuation , and enforcement of the pro-
visions of the Newspaper Agreement challenged in this consolidated case, Respond-
ent Union has improperly caused Respondent Hillbro to encourage its mailroom
employees to acquire and retain union membership , as a condition precedent to
their acquisition and retention of work As a result , these employees have inevitably
been coerced to pay moneys , dues , and initiation fees to the respondent labor organi-
zation. It would defeat the purposes and policies of the Act, this Agency has held,
if Respondent Union were permitted to retain these payments , unlawfully exacted
from employees . To expunge the effect of these exactions , found unlawful under
Board decisional doctrine , it will be recommended that the Respondents , jointly
and severally , refund to the mailroom employees of Respondent Hillbro the initiation
fees, dues , or any other moneys thus exacted from them Such reimbursement by
the Respondents should cover a period beginning 6 months prior to the filing and
service of the initial charges herein , and should include all moneys thereafter paid
which have not heretofore been refunded . Honolulu Star-Bulletin , Ltd., supra;
News Syndicate Company, Inc., supra ; Los Angeles-Seattle Motor Express, Incor-
porated, 121 NLRB 1629; Broderick Wood Products Company, 118 NLRB 38,
enfd. 261 F. 2d 548 (C.A. 10). It will be so recommended.
In the light of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Hillbro Newspaper Printing Company, Division of Hearst Pub-
lishing Company, Inc., is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, as amended.
2. Respondent Los Angeles Mailers Union No. 9, International Typographical
Union, is a labor organization within the meaning of Section 2(5) of the Act, as
amended.
3. By its participation in the maintenance, effectuation, and enforcement of a
contract pursuant to which employment in Respondent Hillbro's mailroom is con-
ditioned on union membership, preference in employment is accorded to union
members, and the control and maintenance of a contractually established employ-
ment seniority and priority system is delegated to the respondent labor organization,
Respondent Hillbro has engaged in unfair labor practices within the meaning of
Section 8(a) (1) and (3) of the Act, as amended..
4. By its participation in the maintenance, effectuation, and enforcement of a
contract pursuant to which employment in Respondent Hillbro's mailroom is condi-
tioned on union membership, preference in employment is accorded to union
members, and the control and maintenance of a contractually established employ-
ment seniority and priority system is delegated to Respondent Union, the labor
organization thus designated has engaged in unfair labor practices within the mean-
ing of Section 8(b) (1) (A) and (2) of the Act, as amended
5. The unfair labor practices herein found are unfair labor practices affecting
commerce, within the meaning of Section 2(6) and (7) of the Act, as amended.
6 The General Counsel has failed to establish by a fair preponderance of the
evidence that Respondent Union caused or attempted to cause Respondent Hillbro
to discriminated against Marcellus B. Wiesler in violation of Section 8(a)(3) of
the Act, as amended, or that Respondent Hillbro actually so discriminated.
[Recommendations omitted from publication.]