New York Paper Cutters', Etc., Local Union No. 119

National Labor Relations Board - Board Decisions

Sep 25, 1964

148 N.L.R.B. 1350 (N.L.R.B. 1964)

1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secutive days thereafter , in conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered , defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 3, in writing, within 20 days from,
the date of the service of this Decision , what steps it has taken to comply herewith 5'
'In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , In writing, within 10 days from,
the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to conduct our labor relations in compliance with,
the National Labor Relations Act, we notify you that:
WE WILL NOT unlawfully discourage you from being members of Local Union
No. 445 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen,
and Helpers of America , or any other union.
WE WILL NOT recognize or deal with the Over-the-Road Truck Drivers
Grievance Committee as the representative of any of our drivers.
WE WILL NOT maintain or give any effect to that part of Section 3 of our
profit-sharing, plan which excludes from participation any employee represented'
by a "recognized bargaining agent."
WE WILL NOT threaten employees with reprisals or promise or grant benefits
to discourage membership in any union.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in union
activities.
WE WILL offer reinstatement to George Roe, and make him and James Al-
lison , Michael Cusato, Henry Maier , and Henry Miller whole for any loss of
pay caused by our discrimination against them.
CHANNEL MASTER CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
NoTE.-We will notify George Roe , if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Serv-
ice Act of 1948 , as amended , after discharge from the Armed Forces.
• This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 120
Delaware Avenue , Buffalo, New York , Telephone No. TI. 6-1782 , if they have any
questions concerning this notice or compliance with its provisions.
New York Paper Cutters ' & Bookbinders ' Local Union No. 119,
International , Brotherhood of Bookbinders , AFL-CIO and
Automatic Sealing Service , Inc. Case No. 2-CC-791. Septem-
ber 25,.1961
DECISION AND ORDER'
On September 16, 1963, Trial Examiner Jolm P. von Rohr issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
148 NLRB'No. 132. '
NEW YORK PAPER CUTTERS', ETC., LOCAL UNION 119 1351
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner 's Decision. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief, and the
General Counsel filed a brief in answer to Respondent's exceptions.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error Was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the - extent consistent
herewith.
In a related proceeding involving the identical conduct,' the Board
resolved the underlying jurisdictional dispute and awarded the work
in controversy to the employees of Automatic Sealing Service, Inc.,
the Charging Party in this case. In these circumstances, we deem it
unnecessary to decide whether, as found by the Trial Examiner, Re-
spondent's conduct also violates Section'8(b) (4) (B) of the Act. Ac-
cordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER FANNING, dissenting :
In an earlier case 2 involving these parties and this dispute I found
that the issue was not cognizable under Sections 10(k) and
8(b) (4) (D).3 I was therefore of the opinion that the notice of hear-
ing in that case should be quashed, leaving the dispute to be resolved
by "the application of other provisions of the statute." The instant
case arises under Section 8(b) (4) (B) and, in my opinion, is properly
before the Board for determination.
The facts with respect to this dispute are fully and adequately set
forth in the Board's previous decision., Respondent Union represents
a multiemployer unit of bindery employees. It is alleged to have en-
gaged in unlawful secondary action to secure for its members the work
of operating certain automatic sealing machines on the premises of
the bindery employers. These machines are the property of Auto-
matic Sealing Service,' Inc., the Charging Party. For more than
25 years the operation of these machines in the New York area has
"See New York Paper Cutters' & Bookbinders' Local Union No. 119, International
Brotherhood of Bookbinders, AFL-CIO, et al. (Automatic Sealing Service, Inc.), 146
NLRB 435, Member Fanning dissenting.
a New York Paper Cutters' & Bookbinders ' Local Union No. .119, International Brother-
hood of Bookbinders , AFL-CIO, et al., (Automatic Sealing Service, Inc.),,eupra.
a See my dissenting opinions in Local 5, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO
((Arthur Venneri Company), 137 NLRB 828;'145 NLRB 1586. ,
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been the responsibility of employees employed by Automatic. The
Union contends that its action is primary on the ground that its con-
tract with the bindery employers covers the work in question. Ac-
cordingly, the Union argues, it may lawfully strike or threaten to
strike the contracting employers to assure the performance of unit
work by unit employees. As I indicated in my previous opinion, I
believe the Union has correctly framed the issue in this case.
The question posed is a difficult one. After serious consideration
I have reached a conclusion adverse to the Union's position. While
the operation of these sealing machines obviously-is related to bindery
work, Respondent's contract does not specifically include such work,
and for more than a quarter of a century employees represented by
Respondent have not performed the work now claimed to be included
in the contract. Indeed, members of Respondent admittedly are not
fully, qualified to operate such machines and would require an un-
determined period of training to become proficient in these duties.
Even assuming that the necessary skills could be acquired within- a
reasonable period of time, the machines are the property of Auto-
matic Sealing rather than the employers under contract to Respond-
ent. There is no indication in the record that Automatic Sealing is
prepared to permit employees, other than its own trained technicians,
to be responsible for the operation of these machines. In those in-
stances in which the contracting employers yielded to the Union's
demands, members of Respondent were assigned merely to "cover"
the work with employees of Automatic. Under these circumstances
I find that the work of operating automatic sealing machines is not
at the present time unit work for which the Respondent Union could
lawfully strike. Accordingly, I would affirm the Trial Examiner's
conclusion that Respondent's threats and strike inducements were
violative of Section 8 (b) (4) (i) and (ii) (B).
MEMBER LEEDOM, dissenting :
Like Member Fanning and unlike my colleagues of the majority, I
would affirm the Trial Examiner's findings that the Respondent
violated Section 8(b) (4) (i) and (ii) (B) as alleged in the complaint.
The facts are not in dispute. The Respondent, Local 119, herein
also called the Union, represents employees of several binderies in the
New York City area under contract with the League, an employer's
association. In addition to the usual bindery operations, these
binderies seal for mailing purposes pamphlets for customers. In the
latter operation, they use an automatic sealing machine developed
by the Charging Party, Automatic Sealing Service, Inc. In the New
York City area, Automatic has retained ownership and possession
of the machine, and it cannot be purchased or leased. Prior to
March 15, 1963, on orders involving more than 50,000 pamphlets,
NEW YORK PAPER CUTTERS', ETC., LOCAL UNION 119 1353
Automatic sent one of its machines to the requesting bindery together
-with an employee of Automatic to operate it; on orders of less than
50,000 pamphlets, the binderies sent the pamphlets. to Automatic's
plant to be done by Automatic's employees, who were not represented
by any union.4 Thus, Automatic's employees had performed the seal-
ing work for more than 25 years prior to the events in this case.
On March 15, 1963, when Claps, the Respondent's shop chairman
at the Charlton Company, a member of the League, found Lopez, an
employee of Automatic working in the Charlton plant, Claps asked
Lopez whether he was a union man. Upon receiving a negative an-
swer, Claps told Lopez that he could not work in a union shop.
Claps called Hellman, president of the Respondent, on the telephone
and reported that a nonunion man was operating the Automatic seal-
ing machine and asked "how come" this was permitted. Acting on
Hellman's instructions, Claps notified Charlton that "a 119 man must
operate the equipment if the equipment is to run." Apparently on the
advice of the League "to go along" with the Union until the League
could act, Charlton placed one of its employees, a journeyman member
of Local 119, on the sealing machine. Lopez was permitted to remain
to instruct the Charlton employee in the operation of the machine, but
the machine was operated by the Charlton employee. In effect,
Charlton had to pay for the services of two employees where only
one was needed.
Either on March 15 or 16, 1963, Hellman -telephoned Klein, an
official of Automatic, and told Klein that, thereafter, although Auto-
matic could send one of its employees along with the machine, the
Union would require that any sealing machine sent by Automatic
to any Local 119 shop be manned by a Local 119 journeyman and that
the Union would not permit the bindery shops to send sealing work to
Automatic's plant.
Thereafter, the Respondent communicated this policy to its
stewards, its members, and to the bindery employers, and threatened
"to pull" bindery employees if any bindery employer did not comply,
as more fully set forth in the Trial Examiner's Decision.
The Respondent mainly contended that the object of its conduct was
to protect the employment opportunities of the employees represented
by it under its contract and, accordingly, the dispute here involved
no more than a primary dispute with the bindery employers.
Rejecting this defense, the Trial Examiner found that the Union's
primary dispute was with Automatic. He reasoned that the primary
dispute was not with the bindery employers because they did not have
control over the assignment of employees to operate the automatic
4 In 1957, the Respondent sought through Automatic to organize Automatic 's employees
without success.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sealing machine inasmuch as Automatic retained exclusive control
over the use and operation of its sealing machines. The Trial . Exx
aminer recognized that, when confronted with the Union's demands;
the bindery employers adopted the temporary expedient, apparently
with the tacit assent of Automatic, of permitting a union member to
operate the machine, but the Trial Examiner pointed out that in each
instance an employee of Automatic was also assigned to the machine
and it was required that he be paid for his services. The Trial Ex-
aminer therefore concluded that this "fictional and costly" arrange-
ment did not alter the fact that the control of this work assignment
remained in the hands of Automatic, and that the bindery employers
were neutral or secondary employers. He found further that the
Union did not reasonably believe that the bindery employees were
entitled to the work in question under the contract because they had
never had the work in the past many years and because the contract,
while specifying in great detail the operations covered, contained no
reference at all to the operation of the sealing machine.'
With these findings and conclusions of the Trial Examiner, I am
in, agreement. In addition, further indicating that the primary
dispute was with Automatic, there is undenied testimony, not men-
tioned by the Trial Examiner, that the Respondent unsuccessfully
sought in 1957 to organize Automatic's employees and that, in March
1963, the Respondent warned Automatic that it would not be allowed
"to get away with this any longer," i.e., working in its own plant with
unorganized employees on jobs sent over by union shops or working
in union shops without the featherbedding arrangement. As the
Union admittedly was interested in preserving work for its members,
and in view of the way in which this dispute erupted in March 1963,
namely, by the union representative's objection to a "nonunion man"
working in Charlton's plant, it is clear that the Union would not
have made these demands had Automatic's emp] oyees been union mem-
bers. 'Thus, it is fair to conclude, as I do, that an object of the Union
conduct was organization of Automatic's employees.
My colleagues in the majority do not disagree with the Trial Ex-
aminer's substantive findings and conclusions. They find it un-
necessary to determine the merits of the case, dismissing the complaint
on the sole ground that the Board has "found that a jurisdictional
dispute existed and awarded the work in controversy to the employees
of Automatic . . . ." However, the instant case presents the ques-
tion of whether the Respondent engaged in unlawful secondary boy-
5 The Board has since , in a 10 ( k) proceeding , awarded the work to the employees of
Automatic mainly because the Union's contract with the bindery employers did not assign
the work to the bindery employees and in view of the practice of many years standing for
the.Automatic's employees to'do the work See New York Paper Cutters' & Bookbinders'
Local Union No 119, etc (Automatic Sealing Service , Inc ), supra.
NEW YORK PAPER CUTTERS',-ETC., LOCAL' UNION 119 1355
ccott activity, and manifestly, this question was not disposed of by
deciding in the 10(k) proceeding that the Respondent did not have
a valid jurisdictional claim to the disputed work.
Accordingly, as the Union's conduct tended to induce bindery em-
ployees to withhold their services and included threats to bindery
,employers of strike action, all with an object of forcing the bindery em-
ployers to cease ^ doing business with Automatic, like the Trial Ex-
aminer, I would sustain the 8(b) (4) (i) and (ii) (B) complaint.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on April 2, 1963 , the General Counsel for the National
Labor Relations Board , for the Regional Director for Region 2 (New York, New
York), issued a complaint on April 26, 1963, against New York Paper Cutters' &
Bookbinders' Local Union No. 119 , International Brotherhood of Bookbinders, AFL-
CIO, herein called the Respondent or the Union , alleging that it had engaged in cer-
tain unfair labor practices affecting commerce within the meaning of Section
8(,b) (4) (i ) and (ii ) (B) of the National Labor Relations Act, as amended , 61 Stat.
136, herein called the Act . The Respondent 's answer denies the allegations of
unlawful conduct alleged in the complaint.
Pursuant to notice , a hearing was held in the New York , New York , on June, 27
and 28, 1963, before Trial Examiner John P . von Rohr . All parties were represented
by counsel and were afforded opportunity to adduce evidence, to examine and cross-
examine witnesses , and to file briefs. Briefs were subsequently filed by the General
Counsel and by the Respondent and they have been carefully considered.
Upon the entire record in this case , and from my observation of the witnesses,
I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE EMPLOYERS
The jurisdiction of the Board is not contested.
Automatic Sealing Service , Inc., maintains its office and place of business in
New York, New York, where it is engaged ,in performing sealing and related services
in the graphic arts industry . It annually performs sealing services valued at ap-
proximately $ 10,000 for persons located outside of the State of New York, and it
annually ,performs sealing services valued in excess of $50,000 for persons located
in the State of New York, which persons annually ship products valued in excess of
$50,000 to points and places located outside of the State of New York.
Printers League ' Section , Printing Industries of Metropolitan New York, Inc., is a
New York membership corporation with its principal office and place of business
located in New York, New York, where it functions as a trade association composed
of approximately 200 employer -members, and is engaged in performing, inter alia,
the function of negotiating and executing collective -bargaining agreements with
various labor organizations , including the Respondent , and administering such
collective -bargaining agreements on behalf of its employer -members. During the
last calendar year , the employer-members in the course and conduct of their business
operations performed services valued in excess of $50,000 of which services valued
in excess of $50,000 were performed in and for various enterprises located in States
other than the StaWin which they are located.'
I find that Automatic Sealing Service, Inc., and the employer-members of the
League are engaged in commerce , and in industries affecting commerce , within the
meaning of Section 2(6) and (7) and Section 8 (b)(4)(i) and (ii)(B) of the Act
and that it effectuates the policies of the Act to assert jurisdiction herein.
1 With respect to the alleged violations herein , the complaint specifically names the
following employer -members of the Printers League Section- Trade Bindery , Fisher Book-
binding Co , Inc , Standard Bookbinding Corporation , Sendor Bindery, Inc , and Bindrite
Bindery, Inc At the hearing , the General Counsel amended the complaint to include the
following named employers , all of whom are also members of the Printing League Section:
S, M Charlton Company, Inc, McKenzie Service , Inc, and L & M Bindery, Inc.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
New York Paper Cutters' & Bookbinders' Local Union No. 119, International
Brotherhood of Bookbinders, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
The bindery employers involved in this case, all of whom are members of the
Printers League Section, an organization whose function includes collective bargain-
ing with labor organizations, are engaged in the binding and finishing of printed
matter, principally books, pamphlets, catalogues, and the like. All employees of
these employers who are engaged in the various binding operations are represented
by Local 119, the Respondent herein, and each such employer is bound by a contract
executed between the League and Local 119.
In addition to performing the binding operations, the bindery employers are fre-
quently called upon by their customers to have pamphlets and booklets sealed for
mailing purposes. This function is accomplished by an automatic sealing machine
which affixes a wafer seal to prevent the pamphlets from opening. Since the
binderies themselves do not own or possess any automatic sealing machines, they
call upon Automatic Sealing Service, Inc., the Charging Party herein, to provide
this service.2 This service is furnished through two methods, viz, either the binders
send the pamphlets to Automatic Sealing's plant for sealing or Automatic Sealing
will send an automatic sealing machine to the binding company and this function will
be performed in the latter's plant? In either case the operation of the automatic
sealing machine is performed by an Automatic Sealing Service employee. Thus,
when an automatic sealing machine is sent out of the plant it is accompanied by an
employee of Automatic Sealing who will operate it at the bindery.
It is undisputed that Automatic Sealing has performed the above-described
sealing service for binderies, including the employer-members of the League, for
approximately the last 25 years. Its employees are not represented by any labor
organization. We turn now to the events which gave rise to the dispute upon which
the alleged unfair labor practices herein are predicated.
On March 15, 1963, Automatic Sealing commenced a job of 200,000 pieces at
F. M. Charlton Company, Inc., the latter a bindery and a member of the Printers
League. One Benigno Lopez, an employee of Automatic Sealing, was sent to operate
the sealing machine at Charlton's plant. After Lopez had run about 500 pieces,
John Claps, an employee of Charlton and shop steward of the plant for Respondent
Local 119, stopped ,at the sealing machine and asked Lopez if he were a union
man. Lopez replied that he was not. Claps thereupon told Lopez that he could not
work in a union shop 4 and he thereupon left the area to telephone the Respondent
Union's president, Joseph Hellman Claps told Hellman that a nonunion man was
operating the automatic sealing machine and asked "how come" this was permitted.5
Hellman testified that his response was, "I told John Claps to inform his employer at
Charlton Bindery that that machine would require a journeyman operator from that
point on." Informed by Claps that "a 119 man must operate the equipment if
the equipment is to run," 6 officials of Charlton capitulated to the Respondent
Union's demand and placed one of its employees, a journeyman member of Local 119,
2 The evidence reflects that with one exception (Young Bindery), Automatic Sealing
Service, Inc, is the only company in the Metropolitan New York area which owns auto-
matic sealing machines and that it is the only company in this area able to perform this
service It is apparent that Young Bindery maintains the sealing machine only for its
own use and that it does not perform this service for others.
3 Generally the sealing machines are sent to the binderies' plants when larger jobs are
involved h
'The credited testimony of Frieda Margolis, personnel manager of Charlton, who was
present when the incident occurred. Claps' denial of having told Lopez that he could not
work is not credited. Lopez, whose English speaking capacity was limited, testified that
Claps told him, "I have to stop the machine because we are not from the union."
s Claps and Hellman testified that on this occasion Claps also mentioned that Charlton's
employees, members of Local 119, were "losing time "
Credited testimony of Frieda Margolis.
NEW YORK PAPER CUTTERS', ETC., LOCAL UNION 119 1357
on the sealing machine? In the meantime, Lopez called his employer and advised
his what had occurred. When he returned to the machine he instructed the Charlton
employee in its operation. The job took 5 days to finish. Lopez was permitted
to remain with the machine and offer instructions as to its operations but the
operation of the machine was performed by the Charlton employee. The end
result was that Charlton in effect had to pay for the services of two employees-
Lopez and its own employee-whereas only one employee was needed to operate
the machine .8
On March 15 or 16, which was either on the day of the above-described Charlton
incident or the day after, President Hellman telephoned Philip Klein, an officer
of Automatic Sealing Service, Inc. It is undisputed that in this conversation Hell-
man told Klein that from that day forward (1) the Respondent Union would
"require" that any sealing machines sent by the Company to Local 119 shops be
manned by a Local 119 journeyman, and that (2) the Respondent would "not
permit" work to be farmed out, i e., as Hellman also testified, that "we would also
restrict our shops from sending work to his place." 9
Also shortly after the Charlton incident, Arthur Grossman, vice president of the
Respondent, made telephone calls to 50 or 60 bindery shops under contract with
Local 119 where in some instances he talked to officials of the companies involved
and in others to their employee shop stewards.10 Concerning these conversations
Grossman testified, "Well, the standard conversation I had with all of them, telling
them that if the automatic sealing machine came into their plant and was in opera-
tion, it had to be covered by one of our journeymen. And I also told them that they
could not send any work out to Automatic Sealing " Morris Weintraub, an official
of L & M Bindery, Inc., testified that when Grossman informed him of the Union's
position, he asked "what would happen" if he continued to send work to Automatic
Sealing. According to Weintraub, Grossman replied that in such event "he would
pull the shop." Although Grossman denied making the latter statement, I credit
the testimony of Weintraub. Further examples disclosed in the record of com-
munications by the Respondent to the employers and its stewards with respect to its
demand, including in some instances such communications passed on by stewards
to. the employers, are as follows:
(1) Nathan Dennis, shop steward at Eff & Zee Bookbinding Co.,' Inc., told Sol
Friedman, the Company's president, that "if you get an automatic sealing machine
on the premises, you won't be able to run it unless a 119 operator is on it . .
I just got a call from the union [Arthur Grossman] that's the only way that machine
will be run." 11
(2) Donald Chiaffone, shop steward at Trade Bindery, Inc., advised Aaron Katz,
the factory superintendent, that "he received orders from the Local that any opera-
tions on an automatic sealing machine would have to be operated by a journeyman
from Local 119." 12
(3) Jerry Neopolitano, shop steward at McKenzie Service, told Robert Mintzer,
an official of the Company, that he had received a call from Local 119 and that the
7 Just prior to putting its employee on the machine, either ,Mrs. Margolis or her hus-
band, the Company's president, called the League and notified it of the Union 's demand as
transmitted to it by Claps. As noted hereinafter, the League subsequently took' this
matter up with the Union. Presumably Margolis was advised by the League to go along
with the Union until it could take further action in the matter.
8 The bindery companies, including Charlton, paid Automatic Sealing Service , Inc., a
stipulated amount per 1,000 pieces. As has been indicated, this cost includes the services
of an Automatic Sealing employee who operates the machine as well as the use of the
machine itself.
9 With respect to item (1) above, Hellman added that he told Klein that Local 119 men
would be required to operate the machines "in addition to anyone else he might send along
with the machine."
10 Although Grossman testified that he made these calls on the day of the Charlton in-
cident, the testimony of other witnesses' reflects that he made several further calls of
similar content in the latter part of March.
11 The unrefuted and credited testimony of Friedman.
12 The credited and unrefuted testimony of Katz. Chiaffone , also called as a witness,
testified that he received instructions to the above effect from Grossman and that he also
passed these instructions on to the other employees in the plant. Chiaffone also told the
employees that they were to let him know immediately if ever an automatic sealing
machine came into the plant.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union "did not want us to allow Automatic Sealing to run their equipment in our
place . . . if they did run it, they wanted one of our journeymen to cover the
machine, and they did not want us to send work out to Automatic Sealing." 13
(4) About, the third week of March 1963, Grossman called David Posnanski, a,
voting member of Local 119 who acts as bindery foreman for the Guide-Kalkhoff-
Burr Corporation. 14 Posnanski testified, credibly, that on this occasion, "he [Gross-
man] asked me if we had any sealing work in the plant. And I said we expect a job•
in. And he told me that under no circumstances shall Automatic Sealing be allowed
to run the machine unless we have one of our journeymen with the machine .
he also said we shouldn't send it [the work] over [to Automatic Sealing]."
Posnanski further testified that he reported the foregoing to Albert Bertoni, the plant.
superintendent, and also that he told the employees (members of Local 119) "that
nobody is allowed to operate the machine unless there was a union man with the
machine." 15
Turning now to the reaction of the Printers League to the Respondent's demand,
it is preliminarily noted that the Local 119-Printers League agreement provides
for the establishment of a joint conference committee as one of the steps in the-
grievance-arbitration procedure, such committee to consist of not more than five
representatives to be designated by each the Union and the League. A meeting-
of the joint conference committee having been previously scheduled for March 21,
1963, for the purpose of taking up other grievances, Matthew Kelly, secretary of the
League, spoke to Hellman and advised that he would like to include the automatic
sealing problem on the agenda. Pursuant to Kelly's request, the matter was taken,
up at the March 21 meeting. Kelly acted asprincipal spokesman for the League as.
did Hellman for the Respondent Union.18 Much of the discussion concerning the
issue at hand is not in dispute and may be summarized as follows: The League, as
Kelly put it, strenuously protested the Union's position that it had jurisdiction over
the sealing machines; it pointed out that the practice of utilizing the services of the
Automatic Sealing Company in the manner heretofore indicated had been in,
existence for 25 to 30 years and that during this entire period the Union had there-
tofore never raised any question about it; that in any event the Union was in violations
of the grievance and arbitration provisions of the contract by not continuing the status
quo until the matter was, as Kelly put it, "adjudicated." The Respondent, claiming
that an unemployment problem existed in the industry since 1962, took the position,
in the words of President Hellman, that "we never officially relinquished any
jurisdiction over this machine because we have always taken the position that any
work under contract to us, any binding work or finishing work certainly came under-
the jurisdiction of the contract." Beyond this the Union refused to agree to arbitra-
tion of the dispute and it refused to return the situation to the status quo, i.e., to•
rescind its directives that the automatic sealing work be performed by its members.
It is also uncontroverted that during the meeting Hellman stated that the rule ap-
plicable to the automatic sealing work, which already had been communicated orally
to the stewards,,was being published in the League's Bulletin which soon was to be-
mailed to Respondent's membership. While there is no dispute as to all' of the fore-
going, there is a dispute in the testimony as to whether Hellman stated anything
which could be regarded in, the nature of a threat as to what would occur in the event
the bindery employees did not comply, with Respondent's demand. Four employer
representatives present at this meeting testified that a threat was made. Thus,
Richman quoted Hellman as saying that, "the machine would not run and the men
would not work unless it was covered by Local 119 when it came into a 119 shop.
William Ginsberg testified that at this meeting, "Mr. Hellman stated that the auto-
matic sealing .machine must be manned by a 1,19 man if it is to run . . . if it weren't
1a The credited and unrefuted testimony of Mintzer.
'& In addition to binding , this company is engaged in general and commercial printing.
15 The company was expecting a sealing job at the time Posnanski reported Grossman's
instructions to Bertoni Concerning the conversation between Posnanski and Bertoni at
this time, Bertoni credibly testified as follows: "lie said to me that we are going to have
some trouble with the sealing job because the union had called him and told him that we
would not be allowed to have the Automatic Sealing people seal this job on our prem-
ises . . . I told him, 'Well, we'll take the job and send it over to Automatic Sealing's
plant.' And he said, 'You can't do that either."'
11 In addition to Hellman, Vice President Grossman and Business Representative Walter
Bennett represented the Union. Other League representatives present were Mortimer
Sendor of Sendor Bindery, Alvin Richman of Standard Bookbinding, William Ginsberg of
Practical Bookbinding, William McDonald of National Law Press, and Leon Sigal of Trade
Bindery. Additionally, employers Max Fisher of Fisher Bookbinding, Jack Russell of"
Printers Bindery, and Attorney Richard Lyons also were in attendance.
NEW, YORK PAPER CUTTERS', ETC., LOCAL UNION 119 1359
run by a 119 man , the men would not work.", Mortimer Sendor .testified, "Mr. Hell-
man basically said that if a 119 journeyman was not present when the machine ran,
the machine would not run." It was the testimony of Max, Fisher that Hellman
stated "the men would not work" if a 119 journeyman was not put on the machine.
Hellman denied making any of the foregoing statements and Grossman also denied
hearing any statement made by Hellman to such effect. Hellman conceded that he
may have • raised his voice during the discussion, but otherwise testified that he
merely made an emphatic demand with respect to the assignment of the automatic
sealing work to members of the Union.17 Matthew Kelly was called by the Respond-
ent as a witness. Concerning the remarks attributed to Hellman by the other
employer representatives, Kelly testified that he did not recollect Hellman stating in
his presence that the shop would be pulled or the machine would be stopped if the
employers did not follow the Union's position with respect to the automatic sealing
machine. However, Kelly testified that he absented himself from the meeting on
one or more occasions to take telephone calls.18 As indicated by Hellman, the
discussion at this meeting was a heated one. It is clear from the record that Kelly
was not the only spokesman, but that other employer-members also actively
participated in the discussion. From my observation of the witnesses, and upon all
the testimony, I credit the substantially corroborative testimony of Richman, Gins-
berg, Sendor, and Fisher to the effect that during this meeting Hellman stated that
the men would not work or the machines would not run if the machines were not
covered or operated by members of Respondent Local 119.19
As has been noted, prior to the above meeting the Respondent had orally advised
its stewards of its policy with respect to the automatic sealing machine work. In the
April issue of "The Bulletin of 119," a monthly publication which Respondent sends
to all of its members, the following directive appeared 20
URGENT!
ATTENTION ALL MEMBERS
The following directive is hereby issued to every member of the Union:
All Automatic Sealing equipment (machine sealing of self-mailings) comes
under the jurisdiction of Local 119's contract. All such machine work done
in any of our shops must be covered by journeymen of Local Union 119.
In the event any job is scheduled to be sent out from your_plant for sealing,
notify your Union immediately.
Every member of the Union will be held responsible for adhering to the fore-
going mentioned directive in his respective shop.
The identical notice as above set forth appeared in the May and June issues of
this publication.
B. Respondent 's defenses; conclusions
Section 8(b) (4) (i) and (ii) (B) provides that:
It shall be an unfair labor practice for a labor, organization or its agents-
* * * *
(4) (i) to engage in, or to induce or encourage any individual employed by any
person engaged in commerce or in an industry affecting commerce to engage in,
a strike or a refusal in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on any goods, articles, materials,
or commodities or to perform any services; or .(ii)" to threaten, coerce, or re-
17 Thus, Hellman testified that during the meeting he used language,to the following
effect: That "this machine had to be covered by our people" ; "we expect it to run this
way and it will run this way," "this is the way it was [sic] going to bell; "we were going
to insist it be run this way." Concerning the tenor of this meeting Hellman also testified
that "we did not leave in a jovial mood."
is Kelly testified at length as to the discussion which took place during the meeting..
I note, however, that in his testimony he did not mention the rather significant state-
ment made by Hellman during this meeting that the Union's policy with respect to the
automatic sealing work would' be printed in' the Union's forthcoming bulletin which was
shortly to be mailed to all its members. Moreover, Kelly further- testified that during
this meeting, "Mr. Hellman indicated that its people would run the equipment, and to the,
best of my recollection , he had indicated also that they had ways to see that it would be
run" [Emphasis supplied ] '
19 The above four employer witnesses impressed me as believable and reliable witnesses.
I do not believe that their testimony was fabricated.
20 The April issue was mailed to the membership on March 29
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strain any person engaged in commerce in an industry affecting commerce, where
in either case an object thereof is:
(B) forcing or requiring any person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any other producer, processor,
or manufacturer, or, to cease doing business with any other person ... .
Respondent's first defense in this case is predicated upon the assertion that its
object here is to protect the employment opportunities of the employees represented
by it against "the attrition of contract-out" the automatic sealing work. Accordingly,
argues the Respondent, the dispute involved is simply a primary one between it and
the bindery employees under contract. In support of its position, Respondent
principally relies upon International Longshoremen's and Warehousemen's Local
Union No. 19, Independent, et al. (Pacific Maritime Association), 137 NLRB 119;
and International Union of Operating Engineers, Local 545 (Syracuse Supply
Company), 139 NLRB 778.
As Judge Waterman stated in Carrier Corp. v. N.L.R.B.21 "The line drawn be-
tween the two kinds of activity [primary and secondary] has been uncertain and
wavering, involving distinctions `more nice than obvious.' " However, as to the
instant factual situation, certain guidelines have been set forth in Board decisions
which I believe are controlling here. Among such applicable decisions are the two
cases cited by the Respondent, supra. However, I am of the opinion that the
pertinent aspects of these decisions are more adverse to Respondent's position than
they are in support of it. Without detailing the facts in these cases, it will suffice
to note that the Union's activity in each of these cases necessarily had an effect of
requiring one employer to modify or cease doing business with the other. However,
in finding the activity to be primary rather than secondary, the Board in the Long-
shoremen's case found the object of such activity was to require the employers to
observe the work assignment provisions of their bargaining contract with the unions.
Similarly, in Syracuse Supply, a majority of the Board found the dispute to be
primary because "the Respondent Union reasonably believed that the employees
whom it represented were entitled to the repair work in question on the basis of their
collective bargaining contract," and, secondly, "because the bargaining unit em-
ployees had in the past performed work of a similar nature." Neither of these ele-
ments are present in the instant case., Thus, while Respondent's contract with the
Employers specifies in great detail the various operations and wage rates covered by
the contract, the contract contains no reference at all to the operation of the auto-
matic sealing machine. Accordingly, it cannot be said that the Respondent's objective
here was to require the employers to observe any work assignment provision in the
collective-bargaining agreement. Similarly, the situation here does not fall within
the second exception of Syracuse Supply, for the record is clear that Respondent's
members have not in the past performed the operation of the automatic sealing
machine22 To the contrary, this work has been performed by Automatic Sealing
employees for the past 20 to 25 years. In short, while the Respondent at best may
have some "color" of a claim to the work in question, I find that it had no such
real claim to this work as 'was clearly present in the Longshoremen and Syracuse
Supply cases.
In my opinion the controlling factor in this case rests upon the fact that the bindery
employers here do not have control over the assignment of the work at issue, i.e.,
the assignment of employees to operate the automatic sealing machine. As noted
heretofore, these machines are owned by Automatic Sealing Service, Inc.; and
whether the sealing operations are performed in its plant or on the premises of the
bindery employers, this company alone has exclusive control over the use and
operation of the sealing machines. It is true that when confronted with Respondent's
demands the binding employers adopted the temporary expedient, apparently with
the tacit assent of Automatic Sealing, of permitting a member of the Respondent to
"cover" the sealing machine. But in each such instance, an employee of Automatic
Sealing was also assigned to the machine and it was required that he be paid for his
services. This fictional and costly arrangement does not, in my opinion, alter the fact
that the control of this work assignment, that is, operation of the automatic sealing
machine, remained in the hands of Automatic Sealing, not the bindery employer.
The Board has held that where activity is directed against an employer who is
powerless to control the assignment of work, such employer is the secondary or neu-
tral employer and that the employer with power to resolve the dispute is the primary
'311 F. 2d 135 (CA. 2).
22A possible exception is the situation at the Young Bindery, a matter which was not
fully developed in the record But whatever the situation there, I regard it as too isolated
to support any historical claim to this work
NEW YORK PAPER CUTTERS', ETC., LOCAL UNION 119 1361
employer.23 Accordingly, I find that the primary dispute here is between Respondent
and Automatic Sealing Service, Inc., and that the bindery employers involved are
neutral or secondary employers 24
We turn now to Respondent's second defense, which is that whatever the objective
of the Union, it did not engage in any unlawful conduct, i.e., either inducement or
encouragement of individuals (Section 8(b) (4) (i) ), or restraint, threat, or coercion
of persons engaged in commerce (Section 8(b) (4) (ii) ). I find Respondent's second
defense also to be without merit.
With respect to the inducement or encouragement contemplated by subsection (i),
the Supreme Court has said that "the words `induce and encourage' are broad enough
to include every from of influence of persuasion." I.B.E.W., Local 501, et al. (Samuel
Langer) v. N.L.R.B., 341 U.S. 694, 701-702. In the light of all the circumstances in
this case, it is my opinion, and I find, that the "directive" appearing in Respondent's
publication "The Bulletin of 119" during the months of April, May, and June set
forth in the preceding section, clearly constitutes inducement and encouragement
of Respondent's members not to perform services for their employers for proscribed
objectives in violation of Section 8(b) (4) (i) (B) of the Act. While I think the
language of the directive itself reflects inducement and encouragement of employees,
the effectiveness of such inducement is further emphasized when it is considered
that article XII, section 9, of the Respondent's constitution and bylaws provide that
"No member of this Union shall be allowed to work in any shop where anyone
who is not a member of the Local Union is employed in any work which under the
jurisdiction of this Union or any of its divisions; unless authorized by the Union." 25
uLocal 5, United Association of Journeymen and Apprentices of the Plumbing and
Pepefitting Industry of the United States and Canada, AFL-CIO (Arthur Venneri Com-
pany), 137 NLRB 82S; International Longshoremen's Association, AFL-CIO, et al., Local
No 1691, (The Board of Harbour Commissioners), 137 NLRB 1178; Ohio Valley Car-
penteis D ,strict Council, et al (Cardinal Indust, ,es, Inc ), 144 NLRB 91.
24 It might be added that the binding employers had no choice other than to resort to
the costly arrangement of assigning a Respondent journeyman to the sealing machine
together with an Automatic Sealing employee This is true because the evidence reflects
that all automatic sealing machines in the New York area, with the single exception
noted, are owned by Automatic Sealing Service, Inc., and it is quite clear that the bindery
employers, even if willing, would be unable to obtain such machines elsewhere. In any
event, the only choice open to the bindery employers here would be to seek some other
means of having their sealing work performed or entirely stop doing business with Auto-
matic Sealing. In this latter connection, I deem applicable the following statement by
the Board in Local 3, International Brotherhood of Electrical 'Workers, AFL-CIO (New
York Telephone Company), 140 NLRB 729:
While it does not appear that Respondent explicitly demanded that the Company
cancel the Delee contract if Delee refused to use its members, this was the only
alternative the Company had if Delee continued to refuse replacement of its employees
by members of Respondent We concluded, therefore, that Respondent's threat to the
Company had an object of forcing the Company to cease doing business with Delee.
Even assuming, arguendo, that Respondent did not consciously contemplate imposi-
tion of this sanction, it is nonetheless clear that Respondent sought by its threat to
require that the Company superimpose upon its existing agreement with Delee an
added condition of performance, that the work had to be done by Respondent's mem-
bers. Acceptance of this condition by Delee would require the Company to cease
doing business with Delee on the basis of their original arrangement. The objective
of causing such a disruption of an existing business relationship, even though some-
thing less than a total cancellation of the business connection , is a "cease doing
business" object within the meaning of Section 8(b) (4) (B) of the Act.
25 It must be borne in mind that the binding employers have two methods of doing busi-
ness with Automatic Sealing Service. As I have concluded above, the Respondent's direc-
tive constitutes a clear inducement and encouragement of employees not to perform serv-
ices for the binding employers when an Automatic Sealing employee is brought with the
machine to work at the binding employer's premises But with respect to any work which
these employers may send to the Automatic Sealing Company, Respondent's directive re-
quires the "Local 119 employees to notify your Union immediately" in the event of such
infraction. While standing alone it may be technically argued that the requirement of
merely having the employees give the Union notice of any infraction of its rule 1s some-
thing less than an inducement and encouragement of them to withhold their services, the
entire circumstances in this case lead me to conclude that the end result of this directive
could but have the latter effect.
760-577-65-vol. 14 8-8 7
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's published directive, discussed above, in substance reiterated the oral
directives which it previously had given to its stewards and various others of its mem-
bers. With respect to such verbal communications, I find the inducement and
encouragement required by subsection (i) to have been established in the following
such instances: (1) Hellman's instructions to Union Steward John Claps, the latter
an employee of the Charlton Company, that the automatic sealing machine "would
require" a Local 119 journeyman operator from that time on (2) Grossman's
admonitions to the employee shop stewards that the machines "had to be covered"
by a Local 119 journeyman and that the bindery employers could not send any
sealing work to Automatic Sealing Service, Inc.26 (3) Grossman's statement to
Posnanski of Guide-Kalkhoff-Burr Corp., that "under no circumstances shall Auto-
matic Sealing be allowed to run the machine unless we have one of our journeymen
with the machine," including his instructions that his (Posnanski's) employer's work
should not be sent to Automatic Sealing, Ine.27 (4) With respect to Grossman's
instructions to Chiaffone, as set forth in (2) above, Chiaffone testified that he com-
municated these instructions to other employees of Trade Bindery. Since Chiaffone
was a shop steward acting as agent for the Respondent, I find that Respondent thereby
also induced and encouraged these additional employees within the meaning of
subsection (1).28
Accordingly, I find that in each of the instances set forth above, including the notice
published in Respondent's bulletin, Respondent violated Section 8(b) (4) (i) ('B)
of the Act by inducing and encouraging its member-employees employed by
employer-members of the Printers League Section, Printing Industries of Metro-
politan New York, Inc., to engage in strikes or refusals in the course of their em-
ployment, to use, manufacture, process, transport, or otherwise handle or work
on any goods, or to perform any services, with an object of forcing or requiring
the said employers to cease doing business with Automatic Sealing Service, Inc.
As to Respondent's contention that it did not restrain, threaten, or coerce persons
(here employers) within the meaning of subsection (ii), this question, which prin-
cipally is one of fact, has heretofore been decided adversely to the Respondent. Such
actions by the Respondent included: (1) Grossman's statement to Weintraub that he
would pull the shop if L & M Bindery, Inc., continued to send its sealing work to
Automatic Sealing Service, Inc., and (2) Hellman's statement to the employers
attending the March 21 meeting that the men would not work or the machines
would not run if they were not covered or operated by members of Local 119.
By such conduct I find that Respondent threatened, coerced, and restrained employer-
members of the Printing League Section, Printing Industries of Metropolitan New
York, Inc., with an object of forcing such employers to cease doing business with
Automatic Sealing Service, Inc., in violation of Section 8(a) (4) (ii) (B) of the Act 29
26 As noted heretofore , Grossman conceded calling employers and employee shop stewards
to advise them to this effect As also previously related. Shop Stewards Nathan Dennis
(Eff & Zee Bookbinding), Donald Chiaffone (Trade Bindery), and Jerry Neopolitano
(McKenzie Service) testified that they received instructions to such effect.
27 Although Posnanski Is a foreman of the Guide Company, it is clear that he is not a
corporation officer or managerial representative and that hence he is an individual within
the meaning of subsection ( 1). Sheet Metal Workers International Association, Local
Union No. 299, AFL-CIO, et al. (S M. Kisner and Sons ), 131 NLRB 1196. Concerning
the above found unlawful inducement of Posnanski it will be recalled that he is an active
member of the Respondent and as such is bound by the Union's constitution and bylaws.
See Local 1016, United Brotherhood of Carpenters & Joiners of America, et al. (Booher
Lumber Co , Inc.), 117 NLRB 1739.
21 The effectiveness of Respondent's inducement of employees through its oral and pub-
lished directives was cogently illustrated in the testimony of Chiaffone . Thus, when
queried as to "what would have happened " if a sealing machine was brought in and was
not manned by a journeyman of Local 119 , Chiaffone testified in reply that in such event
"We had .orders that the machine must be manned by a 119 man . And chances are that
the machine wouldn't have run "
20 At the hearing Respondent offered to prove that Automatic Sealing Service, Inc , and
the Sea]-O-Matic Company, its subsidiary, entered into an agreement which is violative of
the Sherman Act in that said agreement allegedly gives Automatic Sealing Service, Inc, a
monopoly over the use or sale of automatic sealing machines in the New York area. By
virtue thereof, Respondent contends, the issuance of a cease-and-desist order would thwart
the purposes of the Act. I rejected the offer as beyond the purview of the hearing and as
not constituting a defense to the violations alleged under the Act.
PACKAGING CORP. OF AMERICA (DENVER CARTON PLANT) 1363
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations described in section 1, 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 the Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. Automatic Sealing Service, Inc., and the employer-members of Printers League
Section, Printing Industries of Metropolitan New York, Inc., are engaged in industries
affecting commerce within the meaning of Section 8(b) (4) (ii) (B) of the Act.
2. New York Paper Cutters' & Bookbinders' Local Union No. 119, International
Brotherhood of Bookbinders, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening, coercing, and restraining employer-members of the Printers
League Section, Printing Industries of Metropolitan New York, Inc., with an object
of forcing or requiring them to cease doing business with Automatic Sealing Service,
Inc., Respondent has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(b) (4) (ii) (B) and 2(6) and (7) of
the Act.
4. By inducing and encouraging employees of employer-members of Printers
League Section, Printing Industries of Metropolitan New York, Inc., to engage in
strikes or refusals in the course of their employment to perform services with the
object of forcing such employer-members to cease doing business with Automatic
Sealing Services, Inc., the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(b) (4) (i) (B) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Packaging Corporation of America (Denver Carton Plant) and
Richard D . Gabrys. Case No. 27-CA-1562. September 28, 1964
DECISION AND ORDER
On July 9, 1964, Trial Examiner William E. Spencer issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
148 NLRB No. 134.