J. Brodsky & Son

National Labor Relations Board - Board Decisions

Oct 31, 1955

114 N.L.R.B. 819 (N.L.R.B. 1955)

J. BRODSKY & SON 819
land, and discharge passengers in the District who originated in Maryland . Silver
Spring's revenue from these routes amounts to about $4 ,000 per month.
The Union undertook a sample count of all passengers who boarded or alighted
from Silver Spring's buses at its Eastern Avenue termmal .2 The count took place
on Monday, November 15, 1954, Saturday , November 27, 1954, and Wednesday,
December 1, 1954. The results of this count show 2,729 passengers on November
15, 2,084 on November 27, and 2,924 on December 1. The Union contends that,
excluding Sunday operations, this means a daily average of 2,579 interstate pas-
sengers, 15 ,474 for a 6-day week, and 804,648 per year. The Union further con-
tends that using an average fare of 15 cents,3 which was reported by Silver Spring
during 1954, the annual revenue from interstate passengers amounts to $ 120,697.
The Union points out in its brief that this figure excludes revenues derived from
Sunday operations , interstate charter and school transportation business , and the
new routes to Fifteenth and K Streets.
Parran testified , in substance, that in his opinion only 40 percent of Silver Spring's
"Interstate and Intrastate Route Revenues ," or $56,524.89, could be assigned as in-
terstate revenues , and that the balance of such route revenues was purely intra-
state. He testified that his opinion was based upon his own observations and from
conversations on the subject with his operators and supervisors . Robert Millard,
Silver Spring's accountant , testified to the same effect . By dividing the above figure
by 3 and multiplying the result by 4, the Respondent estimates his interstate revenues
from such routes for the entire year of 1954 at $75,366.52 . By adding the revenues
from interstate charter and school operations , the Respondent arrives at the figure
of $86,991.04 as the estimated total revenue from interstate business for 1954.
I believe that the Union adduced the more reliable and substantial evidence as
to the interstate revenues derived from the "Interstate and Intrastate Route Opera-
tions." However, while not denying the reported average fare of 15 cents , it is to be
noted that Parran and Millard testified to the effect that in their opinion the average
fare ranged from 12 to 15 cents . Assuming the minimum of 12 cents to be the
average, nevertheless the annual revenue from interstate passengers , based on the
Union's count , would amount to $96,557.76 . By adding to this figure the interstate
revenues derived from the exclusions noted above , it is clear that the total interstate
revenues of Silver Spring far exceed the dollar value of $100,000 set by the Board
in its revised jurisdictional standards.
For the above reasons, it again is found that Thomas Parran, Jr., trading as Silver
Spring Transit Company , is engaged in commerce within the meaning of the Act.
2 Joseph B . Gardner, a member of the Union's executive board, testified credibly in this
connection.
8 The evidence shows that the fares range from 10 to 35 cents.
Joseph Brodsky and Herman Brodsky, Co-partners doing busi-
ness under the trade name and style of J. Brodsky & Son and
Milton Reiman
Newspap`er'and Mail Deliverers' Union of New York and Vicinity,
Independ,ent and Milton Reiman . Cases Nos. 2-CA-3823 and
2-CB-1232. October 31,1955
DECISION AND ORDER
On July 28, 1955, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Exceptions to the Intermediate Re-
114 NLRB No. 128. `
387644-56-vol. 114-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port and briefs were thereafter filed by the Respondent Brodsky,
herein called the Employer, and by the General Counsel. No excep-
tions were filed by the Respondent Union.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modifications noted below.
1. We agree with the Trial Examiner's concluding finding that the
Employer violated Section 8 (a) (3) and (1) of the Act by its con-
duct in this case. Unlike the Trial Examiner, however, we rely, in
addition, on the fact that the Employer discriminatorily rejected
employee Reiman's applications for the vacancy.
The charge in this case was filed by employee Milton Reiman The
essential allegations of the complaint are (1) that the Respondent
Employer denied Reiman a promotion because he was not a member
of the Respondent Union and thereby violated a proscription of Sec-
tion 8 (a) (3) and (1), and (2) that the Respondent Union caused
the Employer so to discriminate against Reiman in his employment
and thereby violated a further proscription set out in Section 8 (b)
(2) and (1) (A). The Trial Examiner found, with ample support
in the record, that the Union in fact caused the Employer to refuse
promotion to Reiman and that its conduct was therefore a clear vio-
lation of Section 8 (b) (2) and 8 (b) (1) (A).' No exception was
filed by the Union, and we agree with this finding. The Trial Ex-
aminer also correctly found that the Union, as a collateral aspect
of this same situation, caused the Employer to discriminate in favor
of employees Hulahan and Levine, who were successively hired into
the position sought by Reiman in the latter's place and stead, and
by such conduct also violated Section 8 (b) (2) and 8 (b) (1) (A).2
As to the conduct of the Employer alleged to be unlawful in the
complaint, the Trial Examiner found only that the Employer un-
lawfully discriminated in favor of Hulahan and Levine, at the behest
of the Union. The Trial Examiner made no finding on the major
issue raised by the complaint in this case, which is whether, in deny-
ing promotion as sought by Reiman, the Employer unlawfully dis-
criminated against him in the course of his employment in violation
of Section 8 (a) (3)-. On this last point, we are satisfied on the record
i In his conclusions , the Trial Examiner , apparently by inadvertence , described the
Union's unlawful conduct as consisting of its own discrimination in favor of liulahan and
Levine and against Reiman . We take this conclusion as intended to mean, as necessarily
it must, that the unfair labor practice arose from the Union ' s conduct in causing the
Employer to discriminate in favor of the first two employees and against Reiman. See
Pacific American Shipowners Association , 98 NLRB 582, 588.
2 There is no defense based on any lawful union-security contract provision.
J. BRODSKY & SON 821
as a whole that this allegation of the complaint is amply supported
by the evidence.
As set forth in detail in the Intermediate Report, when employee
Gangi vacated a permanent position in June 1954, Reiman, then a
temporary or extra employee qualified to do the work, asked for
Gangi's position. He was refused the promotion. His foreman gave
him clearly to understand that the matter was one for the Union to
decide.' Consistent with this admitted position of the Company, when
the Union about 2 weeks later asked the Employer to hire Hulahan;
the Company did so and assigned him to the Gangi vacancy. This
same pattern of discrimination was repeated in March 1955, when
Hulahan quit. Reiman again applied for the vacancy and was again
turned down. This time he was told by Foreman Stolz and by both
partners of the Company that the matter was up to the Union and not
to any of them. And again at the Union's request, the Employer
hired Levine for the vacancy.
On the foregoing facts, including the admissions by the Company's
representatives to Reiman that they had surrendered the prerogative
of promotion to the Union, it is clear that the Respondent Employer
refused to promote Reiman because he was not acceptable to the Union.
Such conduct is a direct flouting of the proscription set out in Section
8 (a) (3) of the statute. Against such clear evidence of unlawful
motivation, the Respondent Company's contention now that it was at
all times merely complying with the provisions of its current contract
with the Union, is entirely unpersuasive. The contract, set out in
considerable detail in the Intermediate Report, is not entirely clear
on the question of transfer to permanent jobs; however, it does appear
that the parties interpreted it as giving preference in such situations
to applicants who were former regular employees in the industry, as
compared with "irregular extras" such as Reiman. According to the
Employer, the Union had told it that Hulahan was entitled to this
preference because he was a former regular employee of Rockaway
News Company, another employer in the industry. In fact, however, .
Hulahan was nod a former regular employee of Rockaway, but the
3 Reiman testified on direct examination that in response to his request for Gangi's
job, Foreman Stolz replied, "It's not up to me. It's up to the Union." Later, in answer
to a leading question on cross-examination by the Union's attorney as to whether Stolz
mentioned a contract, Reiman added that the foreman went on to say that the vacancy
would be filled in accordance with the provisions of the Employer's contract with the
Union.
Unlike the Trial Examiner, we see no reason to discredit Reiman's uncontradicted testi-
mony that Stolz told him that the matter of promotion was something for the Union to
decide. The Trial Examiner generally found Reiman to be a credible witness. More sig-
nificantly, however, at a later date, when Reiman made a second precisely similar request
for promotion, other management representatives told him that it was up to the Union
and not to any of them to fill the vacancy. The Trial Examiner found no reason to dis-
credit this testimony. And finally, Reiman also testified, and the Trial Examiner believed
him, that in March 1955 Stolz joined with the other company representatives and repeated
practically the same statement-that the matter was "up to the Union"-which according
to Reiman Stolz had made in June the year before.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer made no attempt to check into the matter or to investigate
the Union's assertion in any way. Further, the contract required that
in the event of this type of vacancy, a pertinent notice should be posted
for a 3-week period so that all interested applicants could apply.
Both the Employer and the Union ignored this part of the contract.
Moreover, the contract also provided that the preference to former
regular employees could be exercised but once by any individual dur-
ing the life of the contract. Again, the Employer did not concern
itself with the possibility that Hulahan, or even Levine several months
later, might for this reason, apart from all others, not have been en-
titled to preference over Reiman. All these considerations convince
us, as they did the Trial Examiner, that the Employer acted without
regard to any of the contract provisions, that any reference its repre-
sentatives might have made to the contract at the time of the events
was but a mere pretext to cover its truly discriminatory motivation,
and that the contract cannot now serve as a defense against the clear
proof of the commission of unfair labor practices. In conclusion, we
find that the Respondent Union caused the Company to deny promo-
tion to Reiman and to accord preference in employment to Hulahan
and Levine all in violation of Section 8 (b) (2) and 8 (b) (1) (A) of
the Act, and that the Respondent Company denied promotion to
Reiman and accorded, favored treatment to Hulahan and Levine for
the purpose of encouraging membership in and/or adherence to the
Union, and thereby violated Section 8 (a) (3) and (1) of the Act.
Having found that the Employer discriminated against Reiman
in the course of his employment and that the Union caused such dis-
crimination, we shall order them to remedy the unfair labor prac-
tices found in the usual manner.
ORDER
On the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Respondent Joseph Brodsky and Herman Brodsky, Co-partners
doing business under the trade name and style of J. Brodsky & Son,
Richmond Hill, New York, its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Encouraging membership in. Newspaper and Mail Deliverers'
Union of New York and Vicinity, Independent, or in any other labor
organization of its employees, by discriminating in any manner
against them or applicants for employment in regard to their hire
or tenure of employment or any term or condition thereof, except
to the extent permitted by Section 8 (a) (3) of the Act.
J. BRODSKY & SON 823
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the act :
(a) Offer Milton Reiman immediate and full employment in the
position for which he applied in June 1954 and thereafter, or in a
substantially equivalent position, without prejudice to his seniority
and other rights and privileges.4
(b) Preserve and upon request make available to the Board or
its agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due under the terms of this Order.
(c) Post at its offices in Richmond Hill, New York, copies of the
notice attached hereto marked "Appendix A." 5 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by Respondent Brodsky's authorized repre-
sentative, be posted by said Respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
Respondent -Brodsky to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify said Regional Director in writing within ten (10)
days from the date of this Order, what steps Respondent Brodsky
has taken to comply herewith.
B. Respondent Newspaper and Mail Deliverers' Union of New
York and Vicinity, Independent, its officers, representatives, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Respondent Brodsky or its
officers, agents, successors, and assigns to discriminate against its em-
ployees or applicants for employment in violation of Section 8 (a)
(3) of the Act.
(b) In any other manner restraining or coercing employees or ap-
plicants for employment with Respondent Brodsky in the exercise
of the rights guaranteed in Section 7 of the Act, except to the extent
* See The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch,
65 NLRB 827, 829.
6In 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 a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Notify Milton Reiman and Respondent Brodsky immediately
in writing that it has no objection to, and now requests, Reiman's em-
ployment by Respondent Brodsky in the position for which he applied
in June 1954 and thereafter, without prejudice to his seniority and
other rights and privileges.
(b) Post at its business offices at New York, New York, copies of the
notice attached hereto marked "Appendix B." 6 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by official representatives of Respondent News-
paper and Mail Deliverers' Union of New York and Vicinity, Inde-
pendent, be posted by it immediately upon receipt thereof and
maintained for a period of sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Respondent
Newspaper and Mail Deliverers' Union of New York and Vicinity,
Independent, to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Sign and return to the Regional Director for the Second Region
copies of the notice, to be furnished by the Regional Director, for post-
ing, Respondent Brodsky willing, at the latter's offices, in Richmond
Hill, New York, in places where notices to employees are customarily
posted.
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
C. The Respondents shall jointly and severally make whole Milton
Reiman for any loss of pay he may have suffered because of the dis-
crimination against him, by paying to him a sum of money equal to the
amount he would normally have earned as wages from the date of the
discrimination to the date of the offer of reinstatement, or in the case of
the Respondent Union to 5 days after the notice to Reiman and
Brodsky specified above if that is earlier, but excluding the period
from the date of the Intermediate Report to the date of this Order,' less
his net earnings during such periods.8 Back pay shall be computed in
the customary manner.9
I
8 See footnote 5, supra.
7 Sep Turner Construction Company, 110 NLRB 1860 ; Custom Underwear Manufactur-
ing Company, 108 NLRB 117.
8 See Crossett Lumber Company, 8 NLRB 440, 498
OF. W. Woolworth Company, 90 NLRB 289, 291-299.
T. BRODSKY & SON
APPENDIX A
NOTICE TO ALL EMPLOYEES
825
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in Newspaper and Mail
Deliverers' Union Of New York and Vicinity, Independent, or
any other labor organization of our employees, by in any manner
discriminating against them or applicants for employment in
regard to their hire or tenure of employment or any term or
condition thereof, except to the extent permitted by Section 8
(a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent permitted by Section
8 (a) (3) of the Act.
WE WILL offer Milton Reiman immediate and full employment
in the position for which he applied in June 1954 and thereafter,
without prejudice to his seniority and other rights and privileges,
and make him- whole for any loss of pay he may have suffered as
a result of the discrimination against him, as set forth in the
Order.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named Union, or any
other labor organization, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
JOSEPH BRODSKY AND HERMAN BRODSKY, CO-PARTNERS
DOING BUSINESS UNDER THE TRADE NAME AND STYLE
OF J. BRODSKY & SON,
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.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS OF NEWSPAPER AND MAIL DELIVERERS' UNION
OF NEW YORK AND VICINITY, INDEPENDENT, AND TO ALL EMPLOYEESe
OF J. BRODSKY & SON
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause J. Brodsky & Son or
its agents, successors , and assigns to discriminate against its
employees or applicants for employment in violation of Section
8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of or applicants for employment by J. Brodsky & Son in-,,the,-
exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL immediately notify Milton Reiman and J. Brodsky
& Son that we have no objection to, and now request, Reiman's
employment by J. Brodsky & Son in the position for which lie
applied in June 1954 and thereafter, without prejudice to his
seniority and other rights and privileges.
WE WILL make Milton Reiman whole for any loss of pay he
may have suffered because of the discrimination against him, as
set forth in the Order.
NEWSPAPER AND MAIL DELIVERERS' UNION OF
NEW YORK AND VICINITY, INDEPENDENT,
Labor Organization.
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed on June 15, 1954, by Milton Reiman , an individual herein
called Reiman, the General Counsel of the National Labor Relations Board, herein
called respectively the General Counsel and the Board, by the Regional Director for
the Second Region (New York, New York), issued his complaint dated May 4, 1955,
against J. Brodsky & Son and against Newspaper and Mail Deliverers ' Union of New
York and Vicinity , Independent , Respondents , herein called respectively Brodsky and
the Union , alleging that Brodsky had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 ( a) (1) and (3) and
Section 2 (6) and ( 7) of the National Labor Relations Act, as amended, 61 Stat.
136, herein called the Act , and that the Union had engaged in and was engaging in
J. BRODSKY & SON 827
unfair labor practices affecting commerce within the meaning of Section 8 (b) (1)
(A) and ( 2) and Section 2 (6) and (7) of the Act.
Copies of the complaint , charge, and order consolidating cases, together with
notice of hearing, were duly served upon Reiman and the Respondents.
With respect to the unfair labor practices , the complaint alleged in substance that:
(a) Brodsky did on or about June 26, 1954 , deny its employee Reiman promotion
to-a-status of regular employment known as a steady situation and since that date
failed to, refused to, and continues to refuse to promote Reiman to the said steady
situation for the reason that he was not a member of or adherent of the Union; (b)
the Union did on or about June 26, 1954, and thereafter attempt to cause and did
cause Brodsky to deny promotion to a steady situation to its employee Reiman and
thereafter caused it to continue to deny said promotion to him for the reason that
he was not a member of or adherent of the Union , and (c ) by each of these acts
the Union violated Section 8 (b) (1) (A) and (2 ) and Brodsky violated Section 8
( a) (1) and (3) of the Act.
The Union 's answer duly filed generally denied the commission of any unfair labor
practices.
The answer of Brodsky duly filed admitted the allegations of the complaint setting
forth that it was engaged in commerce within the meaning of Section 2 ( 6) and (7)_
of the Act and that the Union is a labor organization within the meaning of Section
2 (5) of the Act but generally denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held on June 13 and 15 , 1955, at New York, New
York, before the Trial Examiner duly designated by the Chief Trial Examiner. The
General Counsel and the Respondents were represented by counsel and participated
in the hearing . Full opportunity to examine and cross -examine witnesses and to
introduce evidence bearing on the issues was afforded all parties. The parties were
given opportunity to present oral argument before the Trial Examiner and also to
file briefs , proposed findings of fact, and conclusions of law. The parties argued
orally but waived the filing of briefs.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT J. BRODSKY & SON
Respondent Brodsky is a copartnership doing business under the trade name and
style of J. Brodsky & Son with its place of business located in Richmond Hill, city
and State of New York, where it is engaged in the business of wholesale purchasing,
delivery, sale, and distribution of newspapers, magazines, and other periodicals to
newsdealers and newsstand operators In the course and conduct of its business op-
erations, Brodsky purchases, sells, and distributes various newspapers including the
New York Times, New York Daily Mirror, Journal-American, New York Herald
Tribune, World Telegram and Sun, and New York Post, each of which newspapers
are published by publishing companies which hold membership in or subscribe to
the various interstate news services, publish various syndicated features, advertise
various nationally sold products, and each has a gross revenue from said publishing
operations in excess of $500,000 or more. Brodsky is a member of the Evening
Newspaper Wholesalers' Association, herein called the Association, which has offices
in Jamaica, city and State of New York. The Association is the collective-bargain-
ing agent for, and negotiates collective-bargaining agreements with, labor organiza-
tions including the Respondent Union on behalf of 11 employers all of whom are
located in the State of New York. The 11 employer-members of the Association
are engaged in the wholesale purchasing, delivery, sale, and distribution of news-
papers, magazines, and other periodicals to newsdealers and newsstand operators.
In the course and conduct of the business operations of the 11 employer-members
of the Association each purchases, sells, and distiibiites various newspapers includ-
ing the New York Times, New York Daily Mirror, Journal-American, New York
Herald Tribune, World Telegram and Sun, and New York Post, each of which news-
papers are published by the publishing companies which hold membership in or sub-
scribe to the various interstate news services, publish various syndicated features,
advertise various nationally sold products, and each has a gross revenue from said
publishing operations in excess of $500,000 or more. During the year 1954 the 11
employer-members of the Association in the course and conduct of their business
operations, caused to be purchased, transferred, and delivered to their places of busi-
ness, various newspapers, magazines, and other periodicals, including the newspapers
herein described, valued at an amount in excess of $1,000,000 of which in excess of
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
50 percent was transported to their places of business in the State of New York in
interstate commerce from States of the United States other than the State of New
York. Brodsky admits and it is hereby found that it is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Newspaper and Mail Deliverers ' Union of New York and Vicinity, Independent,
is a labor organization admitting to membership employees of Brodsky.
III. THE UNFAIR LABOR PRACTICES
The Facts I
Milton Reiman, the Charging Party, originally obtained employment with Brodsky
in January or February 1954 when Respondent's foreman, Eddie Stolz, called Reiman
on the telephone and inquired if he wanted to work. The job consisted of driving a
truck, delivering newspapers to newsstands and newsdealers Reiman was hired as
an extra employee on a day-to-day basis. He usually obtained daily employment
either from a shapeup at Brodsky's place of business, which he attended from time
-to time, or when Brodsky telephoned him stating that it had work for him. The
record does not reveal the regularity with which Reiman worked at Brodsky's. In
addition to his employment with Brodsky, Reiman drove a taxicab and worked as an
irregular extra for the Langer News Company.
At about this time Brodsky had in its employ eight regular or steady situation
holders?
Eddie Henry, a regular situation holder at Brodsky's, died early in June 1954.
Phil Gangi, also a Brodsky regular situation holder, but in a less desirable position
in that he worked 4 days and 1 night, whereas Henry's job consisted of 5 straight
days' work, moved into the job vacancy created by Henry's death. About a week
later, Reiman talked with Joseph and Herman Brodsky individually and said he
would like to have Gangi's former job. They told Reiman to speak with Foreman
Stolz, but made no mention of the Union in the conversation. That same day
Reiman asked Stolz for the Gangi job and Stolz told him that the jobs were filled
in accordance with the contractual provisions in the then existing labor contract?
Reiman was not a member of the Union when the above-noted conversations with
the Brodskys and Stolz took place.
Later, during the same week, Reiman talked with Sam Feldman, then president
of the Union, and said he "would like to join the Union and would like to take Phil
Gangi's job." Feldman replied, "No, you can't."
The Gangi job vacancy was not posted. Nor was it filled for several weeks
thereafter.
Since the job vacancy was not posted as the labor contract between the parties
required, and since as hereinafter found it was not filled in accordance with its
terms, it would be well at this juncture to set forth the pertinent provisions as
follows:
Agreement made the 31st day of March 1954, by and between the under-
signed EVENING WHOLESALERS hereinafter called the "Wholesalers," and
NEWSPAPER and MAIL DELIVERERS' UNION OF NEW YORK AND
VICINITY hereinafter called the "Union."
* * * * s * s
1. Subject to the provisions hereinafter set forth, the Wholesalers recognize
the Union as the exclusive representative for collective bargaining of all its
1 The findings in this section are made upon evidence which is documentary or for the
most part undisputed.
2 The labor contract in existence at the time between Brodsky, a mmber of the Evening
Wholesalers, and the Union defined a regular situation holder as "an employee receiving
5 days' or 5 nights' work in each calendar week over a period of 5 consecutive weeks with
the Wholesaler and shall be listed accordingly." In addition the contract provides for
regular extras and irregular extras. "All persons not on the list of regular situation
holders as hereinabove defined shall be known as extras and shall be hired for extra work
in accordance with the rules . . set forth." A more complete discussion of the contract
and its terms will be taken up hereinafter.
3 Although on direct examination Reiman testified that when he asked Stolz for Gangi's
job, Stolz replied it was not up to him but up to the Union, Reiman admitted on cross-
examination that Stolz answered his inquiry as above set forth. I find that Reiman's
admission on cross-examination was more likely what Stolz said.
J. BRODSKY & SON 829
employees engaged in the delivery and handling of newspapers, magazines,
periodicals, publications and merchandise obtained from the publishers or dis-
tributors of such newspapers, magazines, periodicals and publications in the
operations performed by the following: Chauffeurs, distributors, route men,
tiers, floor men, wrapper writers, relay men, and Canada men; .. .
2. (a) This is a union shop contract providing the maximum union security
permissible under the Labor Management Relations Act, 1947, as amended.
2. (c-1) Upon receipt of a signed authorization, the Wholesaler shall deduct
from the Employee's paycheck, the initiation fee and/or dues payable by said
Employee to the Union during the period provided for in said authorization.
* * * * * * *
12. (a) An Employee receiving 5 days' or 5 nights' work in each calendar
week over a period of 5 consecutive weeks shall be deemed to be a regular
situation holder with the Wholesaler and shall be listed accordingly. (b) As of
the effective date hereof, all Employees, including foremen and assistant fore-
men, holding regular situations with the Wholesaler shall be arranged in a
seniority and priority list in accordance with their length of service with such
Wholesaler. (c) All persons not on the list of regular situation holders as
hereinabove defined shall be known as extras, and shall be hired for extra work
in accordance with the rules and sequences thereof as hereinafter set forth:
1. Regular extras shall be given first opportunity for extra work when
available.
2. Regular extras shall consist of all persons other than regular situation
holders, who have performed at least 500 days of work in behalf of such
Wholesaler from January 1, 1945, up to and including January 24, 1951.
January 1, 1945 shall be the commencement date for all seniority referred
to in this contract.
(d) All other persons applying for work shall be known as irregular extras
and shall be hired in the following sequences:
1. Men who previously had employment in the industry as regular situ-
ation holders and who are now unemployed. They shall be given work in
the order of their total seniority in the industry from the seniority date, but
no man shall be permitted to exercise his right under this rule in more than
one shop.
2. Men who are regular situation holders elsewhere in the industry.
They shall be assigned work first on the number of days of work previously
actually performed for the Wholesaler requiring extra work and secondly
on the basis of their total seniority in the industry from the seniority date.
3. Men who are on the regular extra list of other employers in the in-
dustry. They shall be assigned work first on the basis of the number of
days of work previously actually performed for the Wholesaler requiring
extra work, and secondly, on the basis of their total seniority in the industry
from the seniority date.
4. Other competent persons making application therefor to the foreman
on the basis of the total number of days of employment in the industry from
the seniority date.
(e) In the event a regular situation becomes vacant or is newly created, it
shall be filled on the basis of qualification and competency from among the
regular situation holders in accordance with their seniority standing; provided,
however, that when any such vacancy occurs or a new regular situation is created
the same shall be posted by the Wholesaler within I week and shall be posted for
3 weeks thereafter and shall be filled immediately at the end of said 3 week
period. A regular situation holder shall be entitled to the job vacated by the
man taking the posted job. The subsequent vacancy and the next subsequent
vacancy may be filled by bids from regular situation holders. The next sub-
sequent vacancy, however, shall be filled from the regular extra list.
(f) If an extra be offered a situation in accordance with the above provisions
for which he is qualified and he refuses to accept the same, he is to be placed at
end of the promotional priority list, but his seniority standing is not to be affected
thereby. A regular situation holder, however, may refuse a situation offered in
accordance with the above provision without losing his seniority standing on
either the promotional seniority list or for purposes of layoff.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) If a regular situation holder accepts a new situation in accordance with
the preceding provisions and then be found to be placed in the first vacancy
for which he is qualified and competent which occurs in the course of filling the
situation just vacated by him, and he shall be placed at the bottom of the pro-
motional priority list but he shall retain his former seniority position for pur-
poses of layoff.
(h) In the event of a reduction in the number of regular situations , the layoff
shall be in the reverse order of seniority standing, and the employees so laid off
because of such reduction shall be placed to the head of the regular extra list tak-
ing places thereon in accordance with their seniority standing. There shall be
no layoff except on 2 weeks' notice to the Union and to the Employee affected.
(i) An Employee holding a regular situation who is absent from work in
such regular situation for a continuous period of 20 regular working days or
more, or who is absent from work in such regular situation for a period aggre-
gating more than 40 working days (equivalent to 8 5-day weeks during the calen-
dar year) shall be considered to have vacated his regular situation. This pro-
vision, however, shall not apply, nor shall seniority be lost by any employee
because of absence due to any of the following reasons, provided notice in
writing thereof has been given to the Wholesaler:
1. Illness, disability, or partial incapacitation by reason of advanced
age, during which time the man has no employment elsewhere; or
2. Service in the Armed Forces of the United States; or
3. Work performed in behalf of the Union. Employees absent for the
foregoing reasons shall upon return to work be restored to their regular
position on the regular situation holders or extra list with the same pro-
motional priority and seniority standing held by them prior to such absence.
(j) The seniority lists herein provided for shall be kept permanently posted
within each plant and copies thereof, together with any changes therein from
time to time, shall be furnished to the Adjustment Board and the Union.
(k) Any question which may arise with respect to the qualifications or compe-
tency of employees or otherwise with respect to the interpretation or application
of these provisions shall, if not satisfactorily adjusted between the Union and
the Wholesaler, be submitted to the Adjustment Board.
(1) The word "industry" as used herein shall be defined as all companies
employing persons engaged in the categories contained in section 1 of this
agreement by any publisher, newspaper distributor or wholesaler, or magazine
distributor or wholesaler in the metropolitan area which, for the purpose of
this agreement, is defined as the corporate limits of the City of New York and
all territory embraced within a radius of approximately 50 miles from Columbus
Circle in the City of New York.
The Wholesalers, signatories to this contract are Park Slope News Co.; Myrtle
Ave. News Agency, Inc.; Feldman News Co.; Jacob Bilowsky; Al Langer;
Berger News Co.; Flushing News Co. Inc.; Woodhaven News Co.; Brodsky &
Son; Boro Park News Delivery Co., Inc.; Buzkin News Co., Inc.
The above-noted contract expired by its terms on January 31, 1955, and was
succeeded by a similar contract presently in force. It should be noted that at the
outset of the hearing the General Counsel stated for the record that he was not
attacking the legality of the contract and did not contend that it was in any sense
illegal.
Sometime in the latter part of June 1954, James Hulahan in the company of
William Walsh, business agent of the Union, appeared at Brodsky's place of business.
Walsh told Herman Brodsky that Hulahan formerly had a steady job at the Rockaway
News Company and was now unemployed. Walsh asked that Hulahan be em-
ployed by Brodsky .4 Hulahan thereupon went to work for Brodsky and, according
* The General Counsel adduced proof, however, from the employment records of the
Rockaway News Company which shows that Hulahan had worked only occasionally for the
company since he was first employed some time in March 1953. For example, in 1953
Hulahan worked only 3 days In 1954 he earned a total of $120.83. Thus it is clear that,
in accordance with the contract definition of regular situation holder, Hulahan was not,
at least so far as his employment with Rockaway News Company is concerned, a regular
situation holder theie, and I so find It is further found that Walsh misrepresented
Hulahan's status when lie talked with Brodsky.
J. BRODSKY & SON 831
to the uncontradicted testimony of Reiman, took over Gangi's job. Reiman
continued to work for Brodsky as an irregular extra worker.5
It appears that in March 1955 at an informal conference held in the Board office,
attended by Brodsky and his attorney, union representatives and its attorney,
Reiman , and Board Field Examiner Eisenberg, the Union agreed to find employ-
ment for Hulahan in an establishment other than Brodsky's.
There is some confusion in the record as to the precise sequence of events which
followed the above-noted conference. The record establishes, however, that Hulahan
left Brodsky's employ and Reiman again asked Joseph and Herman Brodsky and
Foreman Stolz if he could have the job that opened up with Hulahan's leaving.
Reiman was• told by each of the said persons "It is not up to me. It is up to the
Union."
Herman Brodsky testified that after the above-noted conference Union President
Sam Feldman told him that, in accordance with the contract provisions for hiring,
Brodsky was to hire one Floyd Levine for the vacancy. Brodsky stated he was told
by Feldman that Levine was a former regular situation holder with Preferred News
Company, now out of a ' job. Levine was then hired and according to Brodsky
placed in the regular situation created by Henry's death in June 1954, which he
testified was still open in March 1955. -
Reiman continued to work for Brodsky as an irregular extra and was so employed
at the time of the hearing herein.
Conclusions
The complaint alleges that Respondent Brodsky denied Reiman promotion to
the position of regular situation holder, which would have carried with it steady
employment, and that Respondent, Union caused'the Employer to deny Reiman
said promotion for the reason that he was not a member of or adherent of Respondent
Union. '
It was the contention of the General Counsel during the course of the hearing
that the Act was violated by the Respondents in June 1954, when Hulahan was
given employment by Brodsky, and again,in March 1955, when Levine was hired
as a regular situation holder.
The General Counsel it will be recalled did not attack the legality of the labor
contract between the parties, and it will be assumed to be valid for purposes of
this proceeding. See N. L. R. B. v. Furriers Joint Counsel of New York affiliated
with Int'l. Fur cC Leather Workers Union of the U. S. and Canada (Abe Meltzer,
Inc.), 224 F. 2d 78 (C. A. 2).
Counsel for Brodsky and for the Union during oral argument defended the
action of the Respondents on the grounds that the vacancies in regular situations
were filled in accordance with the provisions of the said labor contract.
It is thus clear that if the Respondents filled the Gangi vacancy in June 1954 in
accordance with the hiring provisions of the contract set forth in detail above there
would not have been a violation of the Act.
However on the facts shown by the uncontradicted evidence I find that the Respond-
ent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act and Respondent
Brodsky violated Section 8 (a) (3) and (1) of.the Act. As heretofore found, when
Gangi moved into Henry's regular situation in June 1954, thereby creating a vacancy
in the regular situation previously occupied by him, Respondent Brodsky did not post
the vacancy as it was required to do under section -12 (e) of the contract. The
Respondent Union did not comply with section 12 (e) of the contract in that it
misrepresented to Brodsky that Hulahan was a former regular situation holder at
Rockaway News Company and therefore entitled to the vacancy, at a time when it
appears that the only other applicant for the job was Reiman. By its request to
Brodsky to employ Hulahan, who was not entitled to job preference under section
12 (e) of the contract, the Union caused Brodsky to hire Hulahan 6 and thus to dis-
criminate in favor of Hulahan and against Reiman. Such discrimination enhanced
the prestige and apparent power of the Union, thus encouraging nonmembers to join
it as a strong organization "whose favor and help was to be sought and whose opposi-
6 Reiman was hospitalized from August 1954 to the middle of February 1955.
6 Although Herman Brodsky testified that the regular situation originally created by
Henry's death in June 1954 was still open in March 1955, when it was filled by Levine,
and Brodsky's counsel in oral argument claimed that Ilulahan was only a replacement in
the job until it was occupied permanently by Levine, the uncontradicted evidence of
Reiman is, as I have found, that Hulahan took over Gangi's job. The record further
reveals that he continued in that job uninterrupted until March 1955, when he was re-
moved by the Union, and Levine was sent in to fill the job.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion was to be avoided" and further encouraged members to retain their membership
in the Union "either through fear of the consequences of dropping out of membership
or through hope of advantage of staying in." Radio Ofcers' Union etc. v. N. L. R. B.,
347 U. S. 17. Further, as the Supreme Court stated in the Radio Officers' case, "Since
encouragement of Union membership is obviously a natural and foreseeable conse-
quence of any employer discrimination at the request of the Union , those employers
must be presumed to have intended such encouragement."
With respect to the second alleged violation of the Act, which the General Counsel
contends took place in March 1955, the facts regarding the hiring of Levine by Brodsky
as detailed above were similar in practically all respects to the hiring of Hulahan.7
Reiman applied to the Brodskys and Foreman Stolz for the job which Hulahan vacated
and was told "it is up to the Union." Brodsky did not post the job. Union President
Feldman then tells Brodsky to hire Levine, asserting that he was a former regular
situation holder and according to the contract provisions was entitled to the job.
Respondents, however, adduced no proof with respect to Levine's former status or
any evidence to show that he should have been preferred over Reiman who had applied
for the job. The Union thus caused Brodsky to hire Levine and to discriminate in
his favor against Reiman
Upon the foregoing and the record as a whole I find that the Union by causing
Brodsky to hire Hulahan in June 1954 and Levine in March 1955 discriminated in
favor of said men and against Reiman and by such acts has enraged in conduct viola-
tive of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. I find further that Brodsky
in complying with the Union's request to hire Hulahan and Levine encouraged mem-
bership in the Union in violation of Section 8 (a) (3) of the Act and thereby inter-
fered with , restrained , or coerced employees in the exercise of the rights guaranteed
in Section 7 in violation of Section 8 (a) (1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connection
with the activities of Respondent Brodsky set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Respondents have engaged in and are engaging in certain
unfair labor practices it will be recommended that they cease and desist therefrom
and that they take affirmative action designed to ettectuate the policies of the Act.
In the usual case involving violations of Section 8 (b) (2) and Section 8 (a) (3)
of the Act, the remedy piovicles tor either the hiring or reinstatement of the individual
discriminated against , with provision for making whole the discriminatee by Respond-
ents jointly. This remedy is appropriate because in most of the cases involving
such violations of the Act, the record establishes that the person discriminated against
would not have been discharged or would have been employed, as the case may be,
but for the violative conduct committed by the labor organization and the employer.
Here, however, a different situation prevails. On the record made in the instant
proceeding, while it is clear and I have found that the Union discriminatorily preferred
Hulahan and Levine and requested Brodsky to hire them thus resulting in discrimina-
tion by Brodsky, I am not able to find that had the Respondents complied with the
hiring provisions of the existing labor contract, which all parties in this proceeding
agree is legal , that Reiman was entitled to the job. For this reason it will not be
recommended that Brodsky be required to place Reiman in the said job or that
Respondents make him whole. In my opinion the policies of the Act will be effectu-
ated by undoing the effect of the unlawful conduct. It will therefore be recommended
that Respondent Brodsky forthwith declare the Gangi job vacant, and fill the same
in a nondiscriminatory manner.8
7 Counsel for the Respondents during oral argument referred to Levine as a former
regular situation holder The only evidence in the record with respect to Levine 's former
status was the testimony of Herman Brodsky that Union President Feldman told him
that Levine was a former regular situation holder with Progressive News Company. This
company is not an "Evening Wholesaler," nor a party to the contract in evidence in this
matter Neither Respondent offered any proof as to Levine's former status.
8 In the light of all the circumstances of this case , I do not believe that a broad order,
as requested by the General Counsel, enjoining the Union from engaging in the sort of
conduct found to be violative herein, in its relations with other employers in this industry,
is warranted.
GASPRO, LTD. 833
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Newspaper and Mail Deliverers ' Union of New York and Vicinity, Independent,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. By complying with the Union 's request with respect to the hiring of James
Hulahan and Floyd Levine thereby encouraging membership in Respondent Union,
Respondent Brodsky has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act Respondent Brodsky has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
4. By attempting to cause and causing Respondent Brodsky to discriminate in
violation of Section 8 (a) (3) of the Act Respondent Union has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the
Act.
5. By restraining and coercing employees in the exercise of rights guaranteed
by Section 7 of the Act Respondent Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
6. the aturesaid untair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Gaspro, Ltd. and Hawaii Teamsters and Allied Workers, Local
996, AFL, Petitioner . Case No. 37-RC-275. October 31, 1955 -
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before M. C. Dempster, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain-
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent in a single unit all employees
at the Employer's "main" plant and lime plant, located on Kuwili
Street, Honolulu, Island of Oahu, Territory of Hawaii, and all em-
ployees of its Kalihi clay products plant and acetylene plant, located
on Kam Highway on the same island. The Employer contends that
the appropriate unit should also include employees at its Waianae,
quarry which is also located on the Island of Oahu approximately
30 miles from the Kuwili and Kalihi plants.'
3 The Kuwili plants and the Kalihi plants are located approximately 1 to 2 miles apart.
114 NLRB No. 132.