News Printing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1954

110 N.L.R.B. 1265 (N.L.R.B. 1954)

NEWS PRINTING CO., INC. 1265
open, as we have already, thousands and thousands of comparatively
small employers of the Nation to secondary boycott pressures of a type
which are not likely to occur in big companies." 23 Another repre-
sentative, speaking on behalf of several employer associations outside
the broadcasting industry, viewed the bill proposing to curtail Fed-
eral jurisdiction in labor disputes 24 as "incredible." He testified that
he could not "understand the idea of returning to the jungle of un-
restricted warfare" that area represented by "small business" and
thereby "deny them the protection of the Act." He concluded with
the observation ". .. if your Wagner Act and your Taft-Hartley law
are good in principle, the people that really need the protection may
be the small people and not the big people. .. ." 25
I have shown that the clear intent of the 1947 Congress was for the
Board to exercise its jurisdiction over the same radio and television
enterprises which the majority would now eliminate. It is also im-
portant to note that the intent of Congress, as expressed by legislation,
has not altered since 1947. Though the appropriate committees of the
83rd Congress considered the question of the Board's jurisdiction at
length and bills to restrict that jurisdiction were, in fact, introduced
and made the subject of hearings, the Congress rejected all such at-
tempts. While the comments of private individuals appearing before
such committees, noted above, cannot be considered in any way as
altering the jurisdictional grant as set forth in the statute, the Con-
gress apparently accepted their views by rejecting revision of the
jurisdiction of the Board. Despite this, the majority accomplish the
opposite aim by their action herein.
For the foregoing reasons, I dissent.
23 See Hearings before the House Committee on Education and Labor , 83rd Cong., 1st
Sess , pursuant to H R. 115 on amendments to the Taft -Hartley Act , p. 1567 ( 1953).
24 S. 1785 , 83rd Cong , 1st Sess.
'i See footnote 23, supra, pp . 3468-3469.
NEWS PRINTING CO., INC. and NORMAN KOLANKO
NEWS PRINTING CO., INC. and EDWARD MAMARY
NEWS PRINTING CO., INC. and HELEN BOWMAN
NEWS PRINTING CO., INC. and WILLIAM H. HUEBNER
NEWS PRINTING CO., INC. and HAROLD T. CARRUTH, ROBERT J. MEIER,
JOSEPH A. HUTTON, PETER PAVLICK AND BERNARD V. SOLINGER.
Cases Nos. 2-CA-2471, 2-CA-2818, 2-C,4-2867, 2-CA-2868, and
2-CA-2887. December 10, 1954
Decision and Order
On December 4, 1953, Trial Examiner James A. Corcoran issued
his Intermediate Report in the above-entitled proceeding, finding that
110 NLRB No. 209.
338207-55-vol 110-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.2
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications.
1. The Respondent contends that the complaint herein should be
dismissed because the individual Charging Parties were in fact
"fronting" for ITU, a noncomplying union which cannot use the
processes of the Board. The Trial. Examiner found that under all
the circumstances there was no fronting. We agree.
We are primarily concerned, as under this Act we must be, with
the protection of the rights of the individual employee. It is the
employee who is granted the right to engage in, or to refrain from
engaging in, concerted activities, and to be free from any interference,
restraint, or coercion in the exercise of that right 4 It is of course
true that employees in the exercise of these rights may join labor
organizations. And under Section 9 (f), (g), and (h), labor or-
ganizations are subject to certain qualifications. But those qualifi-
cations apply solely to the use of the processes of this Board, and
failure to comply with them does not render an organization incapable
of representing employees 5 if an employer chooses voluntarily to
recognize it.
i The Respondent 's request for oral argument is denied because the record, the excep-
tions, and the briefs in our opinion adequately present the issues and the positions of the
parties.
2 The Respondent contends that the Trial Examiner was biased and prejudiced against
it. We have carefully examined the entire record and find nothing to support that
allegation , which we here reject.
8 We note and correct the following inadvertences in the Intermediate Report which
affect neither the Trial Examiner 's ultimate conclusions nor our agreement therewith :
1 The value of the Respondent 's annual shipments outside the State is not $2,500,000
as stated in the Intermediate Report, but $2,500. 2. When Huebner left, Pelonero, ac-
cording to the Trial Examiner , said "I wish you a lot of luck. If you kept your nose clean
this wouldn ' t have happened ." This remark was made not by Pelonero but by employee
Fazzio. It does not appear what weight , if any, the Trial Examiner gave to this remark
However, because Fazzio is a rank-and-file employee not in any way allied with manage-
ment, we have not relied on his statement at all in affirming the Trial Examiner's conclu-
sion. 3. The Trial Examiner refers to the emptying of the dross drum in mid-December
1951 ; the correct date is 1952 . 4. In the table in section E. 2., paragraph 4, of the In-
termediate Report, the correct figure in the second column, in the March 1953 line, should
be 22, not 21
4 N L R B v. Augusta Chemical Co., 187 F. 2d 63 (C. A. 5).
5 N L. R. B. v. Pratt, Reed and Company, Inc., 191 F. 2d 1006 (C. A. 2).
NEWS PRINTING CO., INC. 1267
Similarly, an employee who is a member of a noncomplying union
does not, for that reason, lose the protection the Act accords to em-
ployees. In Dant d Russell,' the Supreme Court indicated that Con-
gress had prescribed exactly what steps it desired to take against non-
complying unions. Had Congress intended to deprive members of
such unions of their rights, that aim could easily have been attained,
and would have been made clear in the statute. But Congress did
not do so, and we do not conceive it to be our duty-or indeed to be
within our power-to make so radical a change in the law without an
explicit mandate.
It is therefore in the accommodation of these two policies, the pro-
tection of the employee and the denial of the processes of this Board
to a noncomplying labor organization, that the problem of fronting
arises. In a series of prior decisions,' we have indicated that whether
or not fronting exists in any case is to be determined by consideration
of all the facts to ascertain who is, in effect, the real party in interest.
We adhere to that principle. We now say only that where it is clear
that the rights of an employee under the act are involved, the protec-
tion of those rights is of such paramount importance that we will not
deny it simply because a noncomplying union may have assisted the
individual, or may in some incidental or collateral fashion be aided
by our action. This position has the sanction of the courts.8 Thus,
in the Rawleigit case the Court said :
.. . the Union, as such, was not a party to this proceeding. The
complaint was filed on behalf of named individuals. It cannot
be inferred that the Union itself became a party to the proceed-
ing or was entitled to any measure of relief therein because the
individual complainants were members of the Union; because the
Union, or its attorney, advised, counseled, and assisted in the
preparation and filing of the charges or in the prosecution there-
of, or because a Union official broadcast the statement that "the
International Longshoremen's and Warehousemen's Union,
C. I. 0., intends to fight the cause of these employees all the way."
We do not mean, any more than the court meant, that there is no
such ti'ing as fronting. In a proper case we would find again, as we
recently did,' that an individual is not truly concerned in a charge he
has nominally filed and is not the real party in interest . But where
6 N. L. R . B. V. Dent ec Russell, Ltd., 344 U. S. 375.
9 See, e. g., Wood Parts, Inc., 101 NLRB 445; The Sun Company of an Bernardino,
California, 103 NLRB 359, enfd. as mod on another point 215 P . 2d 379 ( C. A. 9) ;
Lewis Coal Company, Inc , 108 NLRB 887 ; Publishers Printing Company, Incorporated,
110 NLRB 55.
8 See N. L. R B. V . Augusta Chemical Co., supra; W. T. Rawleigh Company v.
N. L. R. B ., 190 F. 2d 832 (C.A.7),
9 Publishers Printing Company, Incorporated, supra.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employee has an apparent and valid concern, we are reluctant to
find that he is not acting in defense of his own interests.
In the instant case , the Respondent urged that the individual
Charging Parties were fronting. The proof which it offered was not
more than would come within the terms of the above statement in
Rawleigh. In the face of the undoubted rights of these individuals
which we, like the Trial Examiner, find that the Respondent has vio-
lated, we do not believe that the proof offered by Respondent is suffi-
cient to show that the wronged individuals are not the real parties in
interest. Accordingly, we reject the Respondent's contention.
2. The remedy :
Although the Trial Examiner found that the Respondent had dis-
criminatorily selected the employees it assigned to the third shift,
he neglected to provide a remedy therefor. We find merit in the
General Counsel's exception to that failure. Accordingly, we shall
provide that the Respondent select the employees for the third shift
in any nondiscriminatory manner it customarily employs for such
changes of assignment, reassigning the employees now on that shift
if necessary.
Order
Upon 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 the Respondent, News Printing
Co., Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its
employees by discriminatorily discharging employees, or by discrimi-
nating in any other manner in regard to their hire and tenure of em-
ployment or any term or condition of employment, or by threatening
them with loss of employment or other economic reprisal if they join
or assist any labor organization.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
join or assist any labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Norman Kolanko, Edward Mamary, and William H.
Huebner immediate and full reinstatement to their former or sub-
NEWS PRINTING CO., INC. 1269
stantially equivalent positions without prejudice to their seniority
and other rights and privileges, and make each of them whole for
any loss of pay suffered in the manner set forth in the section of the
Intermediate Report entitled, "The Remedy."
(b) Make whole Peter Pavlick, Bernard V. Solinger, Robert J.
Meier, Joseph A. Hutton, Harold T. Carruth, and Helen Bowman
for any loss of pay each may have suffered by reason of the discrimi-
nation against them, in the manner set forth in the section of the In-
termediate Report entitled "The Remedy."
(c) In a nondiscriminatory manner assign employees to the third
shift, reassigning if necessary any of those now on that shift.
(d) Upon request, make available to the National Labor Relations
Board or its agents, for examination or copying, all payroll records,
social-security payment records, timecards, personnel records and re-
ports, and all other records necessary for a determination of the
amounts of back pay due under the terms of this Order.
(e) Post in its plant in Paterson, New Jersey, copies of the notice
attached hereto and marked "Appendix A." 10 Copies of said notice
to be furnished by the Regional Director for the Second Region (New
York, New York), shall, after being duly signed by the Respondent's
duly authorized representative, be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for a period of at
least sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Second Region, in Writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
10 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, 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."
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf
of any labor organization, by discharging discriminatorily or by
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminating in any other manner in regard to the hire or tenure
of employment or any term or condition of employment.
WE WILL NOT threaten our employees with loss of employment
or other economic reprisals if they join or assist any labor
organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to re-
frain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act
WE WILL offer Norman Kolanko, Edward Mamary, and Wil-
liam H. Huebner reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other
rights and privileges previously enjoyed, and make each of them
whole for any loss of earnings suffered by him as a result of the
discrimination against him to the extent and in the manner rec-
ommended by the Trial Examiner in his Intermediate Report.
WE WILL make whole the employees named below for any loss
of pay each may have suffered by reason of our discrimination
against them to the extent and in the manner recommended by
the Trial Examiner in his Intermediate Report :
Robert J. Meier
Joseph A. Hutton
Bernard V. Solinger
Peter Pavlick
Helen Bowman
Harold T. Carruth
WE WILL assign employees to the third shift in a nondiscrimi-
natory manner, reassigning if necessary any of those now on that
shift.
All our employees are free to become, remain, or refrain from be-
coming, members in any union or other labor organization except to
the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the Act.
NEWS PRINTING CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
NEWS PRINTING CO., INC.
Intermediate Report
STATEMENT OF THE CASE
1271
Upon individual charges filed by Norman Kolanko, Edward Mamary, Helen Bow-
man, and William H. Huebner, and an order issued on January 6, 1953, by the
Regional Director of the Second Region (New York City), consolidating the said
Cases Nos. 2-CA-2471, 2818, 2867, and 2868 respectively, the General Counsel of
the National Labor Relations Board, hereinafter called the General Counsel and
the Board respectively, issued a complaint in the consolidated cases, dated January
6, 1953, against the News Printing Co., Inc., hereinafter called the Respondent, al-
leging that the Respondent had engaged in and was engaging in unfair labor prac-
tices 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, here-
inafter called the Act. Copies of the complaint, the charges upon which the com-
plaint was based, together with notice of hearing thereon, were duly served upon
the Respondent and Charging Parties. In an answer filed on January 15, 1953, the
Respondent admitted certain allegations of the complaint, but denied the commission
of any unfair labor practices. A motion for severance of proceedings in the afore-
mentioned cases, made by the Respondent on January 15, 1953, was denied without
prejudice in an order made by the Acting Regional Director on January 20, 1953.
On January 28, 1953, in an additional order, the Regional Director set aside the pre-
vious order and referred the application to sever to the attention of the Trial
Examiner.'
An amended charge was filed by Norman Kolanko on February 16, 1953. Further
additional individual charges were filed by Harold T. Carruth and Robert J. Meier on
December 22, 1952, Peter Pavlick and Joseph A. Hutton on February 11, 1953, and
by Bernard V. Solinger on February 13, 1953, all these new charges being incorporated
in Case No. 2-CA-2887. In an order dated February 19, 1953, the Regional Di-
rector consolidated Case No. 2-CA-2887 with the previously consolidated cases.
A consolidated amended complaint was issued by the General Counsel on February 19,
1953, against the Respondent herein alleging that the Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) of the Act. Copies of the consolidated amended com-
plaint, the charges, amended charges, and additional charges upon which consolidated
amended complaint was based, together with notice of hearing thereon were served
upon the Respondent and charging individuals.
The consolidated amended complaint alleged in material substance that the Re-
spondent: (1) On specified dates between April 26, 1952, and December 13, 1952,
discriminatorily discharged Norman Kolanko. Edward Mamary, and William H.
Huebner respectively, and thereafter refused and failed to reinstate them; (2) from
November 1, 1952, to December 22, 1952, discriminatorily transferred Robert J. Meier
and Harold T. Carruth to less desirable work than they formerly had enjoyed; (3) be-
tween November 17, 1952, and December 22, 1952, discriminatorily transferred
Pavlick, Solinger, Meier, Bowman, and Carruth from the day shift to a night shift and
has failed and refused to reinstate them to the day shift, and has also discriminatorily
refused to pay such employees a bonus regularly paid by Respondent to night shift
employees, and has also discriminatorily reduced their working hours and earnings;
(4) (a) in and after December 1952, discriminatorily excluded Pavlick and Solinger
from a general wage increase given to journeyman employees, (b) between July
and December 1952, discriminatorily failed and refused to pay Huebner a wage
increase regularly paid to apprentices, (c) in and after January 1953, discriminatorily
failed and refused to pay Hutton and Meier wage increases regularly paid to ap-
prentices; and (5) since April 1, 1952, has interfered with, restrained, and coerced
employees in exercise of rights guaranteed under Section 7 of the Act, by (a) inter-
rogation of employees as to their union membership and activities, (b) making
threats of discharge, layoff, transfer, and other threats of reprisal to induce abandon-
ment of union membership and activities, and advising and warning employees it
would not permit the Union to organize the composing room employees, (c) trans-
ferring employees to less desirable work shift or work, advising employees to look for
work elsewhere, or that they would not get raises or letters of recommendation be-
cause of joining the Union or attending union meetings or engaging in other union
IIn lieu of presenting actual exhibits, it was stipulated by counsel at hearing that
Trial Examiner C. W. Whittemore, in a telegram dated January 30, 1953, denied the
referred motion for severance, and that appeal therefrom by Respondent's attorney in
letter to the Board dated February 2, 1953, was denied by Board in letter to Respondent
dated February 5, 1953, without prejudice to right of renewing at hearing.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity, and (d) keeping under surveillance union meeting places, and telling
employees it knew names of applicants for membership in the Union, the names
of members, and the names of those attending union meetings, as well as what
transpired at such union meetings.
In an answer to the consolidated amended complaint, the Respondent admitted cer-
tain allegations of the amended complaint but denied all allegations relative to the
commission of any unfair labor practices as alleged, and set forth that all changes
in the employment status of the workers named in such amended complaint, were
made by the Respondent because of unsatisfactory work performance and to improve
the efficiency of plant operations.
Notice of motion, dated April 7, 1953, was served by General Counsel, to amend
the consolidated amended complaint by adding an additional allegation in para-
graph numbered 7 thereof stating that Respondent on February 23, 1953, discrimi-
natorily created an early morning shift and transferred to it, employees Pavlick,
Bowman , Meier, Carruth, and Hutton. A countermotion was made by the Re-
spondent, for adjournment of the scheduled hearing relating to trial of the matter
contained in proffered amendment of complaint by General Counsel. These mo-
tions were ruled upon by Trial Examiner at the hearing
Pursuant to notice, a hearing was held beginning in New York City on April 13,
1953, and continued in Paterson, New Jersey, until June 12, 1953, before the Trial
Examiner duly designated by the Chief Trial Examiner. All the parties partici-
pated in the hearing, were represented by counsel, were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues, submit oral argument, and file briefs. The motion of Gen-
eral Counsel previously mentioned, to amend the consolidated amended complaint
to add an additional allegation to paragraph numbered 7 thereof, was granted upon
terms. The motion of Respondent for adjournment of consideration of matters
covered in such proffered amendment, was denied in view of the basis of granting
the motion to amend. The General Counsel at the hearing orally moved to fur-
ther amend the amended complaint in regard to paragraph numbered 7 (h) thereof
by inserting in such paragraph the additional name of Joseph A. Hutton, which
motion was granted upon terms. Pursuant to previous Board action denying with-
out prejudice the application of Respondent to sever the cases and for separate
trial thereof, the Respondent moved orally against the consolidation of the various
cases and requested severance of the charges into separate proceedings. Such mo-
tion was denied. At the onset of the hearing, Respondent challenged the jurisdic-
tion of the Board on the ground that the Union involved was not in compliance
with the Act and that all the chargees herein were in reality acting as a front for
such union in filing their charges and moved for dismissal of the complaint on such
basis. The motion was denied in that nothing on the face of the pleadings sus-
tained such contention or offered proof of the facts alleged? The General Counsel
moved at the conclusion of the hearing without opposition to amend the pleadings
to conform to the proof, without specification, in respect to names, dates, and
formal matters not affecting the substance of the complaint, which motion was
granted. The General Counsel and attorney for certain named chargees pre-
sented extensive oral argument, the Respondent waiving the opportunity to do so.
The Respondent has filed a brief which has been read and considered.
THE ISSUE OF JURISDICTION
Alleged Fronting of Dischargees for Noncomplying Union
It has been conceded by General Counsel in this record that the International
Typographical Union and Local 195, of such International Union, hereinafter
2 At the conclusion of presentation of his evidence, the General Counsel upon the basis
of the testimony adduced moved to amend paragraph numbered 7 (i) of the amended
complaint to read "In and after November 1952" instead of "after December 1952" rela-
tive to Pavlick and Solinger not receiving a general wage raise given to journeymen.
The motion was granted with opportunity given to Respondent, if desired, to recall such
parties for further cross-examination on the time period at any time in his own case
presentation. An additional oral motion was made by General Counsel to amend the
amended complaint upon the same basis, relative to paragraph numbered 7 (k) by add-
ing the name of Helen Bowman to two others therein allegedly deprived of wage increases
regularly paid to apprentices. The motion was granted, with the same reservation to
afford Respondent opportunity to cross-examine on, if desired. A motion by Respondent
for dismissal of complaint at this time , was denied.
NEWS PRINTING CO., INC. 1273
called the Union, have not complied with the provisions of Section 9 (h) of the
Act. At the beginning of this hearing, Respondent raised the question of juris-
diction of the Board to hear the charges herein on the ground that these com-
plaining individuals were not the real parties in interest and were in fact fronting
for the Union, and has extensively cross-examined and questioned the charging
witnesses in relation to such allegations. Respondent in asking dismissal of the
complaint, contends that "there was here a well organized and integrated plan,
the essential feature of which was to use the National Labor Relations Board
and its processes and procedures to assist this unqualified and ineligible union to pro-
mote its organizational drive contrary to the explicit provisions of the statute and
in direct contravention of our public policy and national welfare."
As a preliminary observation in considering this question in relation to unfair
labor practice questions, a basic consideration appears to be stated in N. L. R. B. v.
Hymie Schwartz, 146 F. 2d 773 (C. A. 5), to the effect that the Act was passed
for the "primary benefit of employees as distinguished from primary benefit to
labor unions," and further, as stated in Augusta Chemical Company, 83 NLRB
53, enfd. 187 F. 2d 63 (C. A. 5), that the "avowed purpose was . . . to promote
the rights of individual employees."
Each of the nine individual charges filed herein has specifically alleged indi-
vidual discrimination or other unfair labor practices against the individual chargee'
on the part of the Respondent. These charges were "in form and in substance
assertions of individual rights." It has been clearly established that individual
chargees as such are not subject to the filing requirements of Section 9 (h) of the
Act. (Luzerne Hide and Tallow Company, 89 NLRB 989, enfd. 188 F. 2d 439
(C. A. 3); Globe Wireless, Ltd., 88 NLRB 1262, enfd. 193 F. 2d 748 (C. A. 9);
Cowles Publishing Company, 106 NLRB 801; Southern Furniture Manufacturing
Company, 91 NLRB 1159, enfd. 194 F. 2d 59 (C. A. 5), cert. denied 343 U. S. 964.)
Other cases have definitely held that even where the chargees were members of
the union, and the disqualified union was active in assisting or directing the em-
ployees in preparing their charges and even actually prepared the charges, or that
such union may have solicited or even desired him to take action, and may even
derive some incidental benefit from any favorable action, or where the union attor-
ney has advised, counseled, and assisted in preparation and filing of the charges
and in prosecution thereof through representing charging parties at the hearing, or
the union representative assisted the General Counsel at a hearing, and even where
the chargees asserting selves as individuals were also in fact officers of the Union,
too, but did not file as such, it "does not at all follow that the employees by accept-
ing that assistance disqualified themselves" or that it established that they were
fronting for any noncomplying union.'
As against this, the courts have held fronting to be proven in unfair labor prac-
tice cases, overruling the Board, in two instances wherein the chargee who filed for
alleged discriminatory wrongs to himself and a great number of others, was in ad-
dition an official of the union, and before, after. and even at filing was the chief
active protagonist of the interested, disqualified union.' It was held there he was
really acting as a representative of the union and not as an individual. Respondent
appears to rely largely on these decisions.'
The issue of fronting presents a "question of fact which must be determined by
an appraisal of all the evidence in light of the circumstances then existing." (Wood
8 Original charge of Kolanko also complained of the discharge of Frank Agnes on the
same date. In the record it is conceded Agnes was a supervisor. No further steps in
relation to him were taken
4 Augusta Chemical Company, supra; Globe Wireless, Ltd., supra; Luzern Hide and
Tallow Company, supra; The W. T Rawleigh Company, 90 NLRB 1924, enfd. 190 F. 2d
832 (C A. 7) ; L. Bonney & Sons Furniture Manufacturing Co., 93 NLRB 1049, 97
NLRB 891, enfd. 206 F 2d 730 (C. A. 9) ; United Engineering Company, 84 NLRB
74, The Sun Company of San Bernardino, California, 103 NLRB 359
' Happ Brothers Company, Inc, 90 NLRB 1513, enfd. 196 F. 2d 195 (C. A. 5) ; Alside,
Inc, 88 NLRB 460, enfd. 192 F 2d 678 (C A 6)
'In L. Bonney & Sons Furniture Manufacturing Co, supra, where individual charges
were filed and where the union assisted the employees in preparing same, and the attor-
ney for the local union represented the charging parties at the hearing, the court opinion
pointed out the distinction with the Happ and Alside cases on the basis of the charging
party in those cases being an official of the union and chief protagonist of the union act-
ing for others, and ruled that such cases had no application in the facts before it. I
deem the decision in the Bonney case applicable herein.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parts, Inc., 101 NLRB 445.) As stated in Happ Brothers Company, Inc., supra,
"this brings us to a consideration of the facts" herein.
Huebner, who was discharged on December 13, 1952, and filed his charge on
December 16, 1952, was not directly questioned by the Respondent relative to this
fronting issue. From the testimony of the union secretary, it does not appear that
he was a union member. He did not sign a retainer with Attorney Zimel until
April 10, 1953, a few days before this hearing started. Bowman, a proofreader
and actual member of the Union since January 9, 1953,' who alleged discrimina-
tion in her transfer from day work to a night shift on December 15, 1952, filed her
charge on December 16, 1952. She had previously been represented by Attorney
Zimel in private matters, and states she went to the Board office on advice from
her attorney. In his testimony Ruocco, the president of the Union, stated he never
discussed any matters with her. Although she went to the Board office with former
coworker Huebner, her attorney did not make any appointment with him for her,
and the circumstances of it are not otherwise explained in the testimony. Hutton,
Pavlick, and Solinger are deaf mutes.' Hutton, who joined the Union December
6, 1952, complained of action against him in December 1952 and January 1953,
and filed his charge at the Board on February 11, 1953. He states he discussed
his grievances with Meier, the chapel chairman, who did not suggest anything to
him, and that he went to the Board office at suggestion of fellow employees, Pavhck
and Solinger, who accompanied him, together with former employee Kolanko. Al-
though as a member of Union he knows Ruocco, president of the Local Union, the
latter did not suggest he confer with or go to an attorney. He met Attorney Zimel
about 3 weeks before the hearing started, and retained him after being brought to
the office of such attorney by employees Pavlick and Meier. The Respondent's brief
points out only the delay in his filing of charge as an indication of the pattern of
fronting alleged.
Solinger, a member of the Union since October 1952, who complains of dis-
criminatory action in relation to his transfer to the so-called night shift in Novem-
ber 1952 as well as his failure to receive regular increases made in November 1952
(and not of his termination of service in December 1952), filed-his charge on Feb-
ruary 13, 1953. After his termination, he went alone to see Ruocco at his home, and
the latter asked him if he could go to the Board. He stated he could not go alone
and Ruocco said he would make arrangements for him and told Kolanko to accom-
pany him a Ruocco did not say anything then regarding his having a lawyer, but
had so stated several months previously at a union meeting when Solinger spoke
to him about another plant matter in which he alleged threats were then made to
fire him, if he joined the Union. He is the only chargee that Attorney Zimel does
not represent. He further testified he did not review facts of his claim or testi-
mony with Zimel before this hearing. He also states that Kolanko did not tell him
to have a lawyer.
Pavlick, a member of the Union since October 1952, filed his charge on February
11, 1953, complaining of denial of increase, transfer to night shift, and shortened
hours of work. He states he went to see Ruocco on November 16, 1952, relative to
his change of work shifts, and the latter told him to keep on working, but did not
say anything regarding his looking after the interests of Pavlick or for him to make
any complaint against the Company. He retained Attorney Zimel on March 18,
1953, after coworker Meier took him to the attorney's office on such date. Meier
he believes made all the arrangements with the lawyer, and Pavlick states he has not
paid the attorney anything or agreed to give him any specified sum.10 He did not
see any lawyer before going to the Board to file charges.
Carruth, a member of the Union since November 15, 1952, filed his charge on
December 22, 1952, relative to his transfer to night shift work on that same date.
Meier suggested his going to the Board, and also with Kolanko accompanied him.
Carruth admits he had a general discussion with Ruocco at a union meeting on
November 16, 1952, regarding his shifting back and forth on machines, and Ruocco
'According to testimony of Cingale, secretary-treasurer of the Union, the official date
of membership is based on date of initiation and not that of application, taking of oath,
or payment of dues.
8 Testimony of each taken through an interpreter using sign language.
8 As he was one of three deaf mutes who went together to the Board, accompanied by
Kolanko, the arrangement seems not unreasonable.
10 Signed retainer is in evidence-Exhibit No . 1, Charging Parties.
NEWS PRINTING CO., INC. 1275
advised him that Meier was chapel chairman and that he should discuss the matter
with him." He states he did so. He met Zimel when the hearing started, and had
signed a retainer in his office on March 23, 1953, after Meier instructed him to sign
it. Meier did not say Zimel was attorney for the Union. He has not paid Zimel
anything and does not know if anyone is paying on his behalf." He does not recall
if Meier told him from whom Zimel got retainers, or that if Meier had signed one
himself. Carruth definitely states he did not discuss his transfer to the night side
with Ruocco.
Kolanko, who was discharged on April 26, 1952, and filed his charge with the
Board on April 28, 1952, officially became a member of the Union on May 10,
1952. He was accompanied to the Board only by Frank Agnes, discharged on the
same day. He alleges that he went to the Board entirely on his own volition with-
out any outside advice or direction and specifically denied that Ruocco suggested
the visit. He states that he and Agnes had read of a case at the Board of a girl
in the Ford plant and had discussed it. He admits seeing Ruocco (with Agnes
present) at a clubhouse between April 26 and 28, 1952, without any previous ap-
pointment, with only general reference to and discussion of his discharge among
the 20 people present. He clearly stated that neither Ruocco nor any other union
official had rendered any assistance in any manner to him in connection with pres-
entation of his complaint. He admitted receiving a check, payment from the Union
in the amount of $35, dated July 9, 1952, allegedly in payment of expenses and time
lost by him in helping organization work on the News (after his discharge) with
such work being done on his own time with use of his car. He kept no copy
of the bill submitted.
He was not questioned by Respondent regarding any payment he allegedly made
to a legal retainer (the matter of which is discussed later herein). It appears that
Attorney Zimel had served him in a professional way in connection with an unem-
ployment compensation claim before being retained in this matter.
Meier, the chapel chairman, was a member of the Union since November 1, 1952,
although never attending a union meeting until March 1953. He filed his charge
on December 22, 1952, alleging discriminatory transfer from day to night shift on
that same date. He claims he made his charge based on advice of Attorney Zimel,
and his own experience previously to this employment as a member of a C. I. 0.
union. He alleges he was not advised by Ruocco or any union official to file his
charge or to visit Attorney Zimel, and states that no one in the International or the
Local Union gave him any assurances as to being represented. Ruocco admits gen-
eral discussions of union matters with him on various unspecified occasions, but
does not remember Meier ever bringing any individual members to his home to see
him. Meier admits he consulted Zimel at his office before Christmas 1952 as to
his standing in the changes being made in the News plant. He signed a retainer
on March 18, 1953, although he states he contributed $50 in January 1953 toward
a retainer for Zimel allegedly giving the money to Mamary. He allegedly selected
Zimel for advice in December 1952 based on his knowing a girl in the Morning
Call office who had previously engaged Zimel on a matter, his knowledge also that
Zimel represented Kolanko and Agnes in another proceeding, and their suggestion
to him regarding going to Zimel for advice. He admits receiving two checks from
Local 195 in the amounts of $30 and $26.05 on February 9, 1953, and March 16,
1953, respectively (the latter being noted thereon as being for lost time and ex-
penses for February 11, 1953 ), which he claims are payment in reimbursement for
his lost time and expenses incurred in organizing work performed by him on his
own time while working at the News on the lobster shift (11:30 p. m.-6:30 a. m.).
He states he did not lose any working time on the News in the period for which
he was being paid. His activity in taking others to the Board and Attorney Zimel
is otherwise set forth herein in connection with the other chargees.
Mamary became a union member May 10, 1952, his employment was terminated
on November 18, 1952, and he filed his charge with the Board dated November 19,
1952. He states he went to the Board office with Meier on November 17, 1952,
but that the latter did not advise him to go there. Likewise, neither Ruocco, nor
any other union official, advised the visit, as he did not confer with Ruocco or any
others when terminated. He never spoke to Ruocco regarding an attorney. Kolanko
who took him to Attorney Zimel at Mamary's own request, did not say that Zimel
was appearing as the Local Union's attorney. He thinks he retained Zimel in late
n Ruocco's testimony was that Carruth did consult him regarding his treatment at the
Company, but that it was in late summer 1952.
v He made a further enlightening statement regarding a proposed method of paying
Zimel , which is set forth at the conclusion of this section.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 1952, shortly after his termination and after he filed his charge, but
cannot recall if he signed a written retainer or only verbally authorized him to act
for him. He agreed with Kolanko on an arrangement to split any retainer fee to
be paid. He testified Zimel asked a retainer of $250, and when advised Mamary
did not have the money, Zimel advised him to try and get it from the Union. After
conferring with Cingale, secretary-treasurer of the Union, who advised him that
the Union could not put up money for a retainer fee, Cingale apparently suggested
he borrow it from the Union with his mortuary benefit as security. It appears
such method was adopted, the matter of such a loan to Mamary being presented
in open meeting and authorized by union membership at such meeting on December
6, 1953. Notation of such action of a loan to Mamary on the basis indicated
appears in the minutes of such union meeting as testified to by Cingale and Ruocco.
A check from the Union in the amount of $250 was dated December 23, 1953.
There is some atmosphere of mystery put around the matter of the retainer payment
and the check in relation to it, as Mamary says he got the check from the Union
and paid it to Zimel, and also confused things further by some indication in his
testimony that he made a money payment of a similar amount to Zimel.13 The
testimony of Zimel regarding the check is that he received it from Cingale direct
and in person at his own home Zimel stated that Cingale had called him up telling him
that the Union had authorized the loan to Mamary and inquiring if it made any
difference whether check was drawn to Mamary or Attorney Zimel, and upon
being assured by Zimel that it did not, as long as it was understood the check was
made for Mamary, the check was drawn to the order of Zimel and received by him
1 or 2 days after such phone conversation.
Zimel further testified that he was not the attorney for Local 195, never was
retained by such Local, and had never received money from such Union, except
the 1 check on behalf of 1 man in the Union under the circumstances related above.
He had on several occasions asked Mamary and Kolanko for a retainer in the
amount of $250, and did tell Mamary to try and borrow it from the Union 14 He
stated he always understood the check was paid to him on behalf of Mamary. He
did not deposit the check in his account but cashed it. He kept no regular book
of retainers or record of fees received in December 1952. He notes retainers or
fees received in his checkbook if deposited, or by making a note relative to it and
placing same in case folder. He did not do the latter step in this instance, and as
noted, he cashed the check, not causing any record to be placed in his checkbook,
assigning as reason perhaps it was fresh in his mind and he needed no written
document regarding it.
The testimony of Ruocco has largely been covered in relation to the various
individual chargees and will not be enlarged upon. He specifically denied advising
any parties herein to do or act in any way by virtue of his direction, and does not
recall any specific instance when he suggested that the person go to the Board.
He had many conversations with Meier, chapel chairman, discussing union matters
sometimes affecting individuals, and stated most of the Charging Parties consulted
him regarding their treatment at the News but only resulting in general discussion.
Cingale, who was secretary-treasurer of the Union for 16 years, testified regarding
the practice of making advances of money to members through loans and his fol-
lowing the previous practice in such regard. Such loans were always made on basis
of good faith, based on use of mortuary benefits as security, with applications for
and discussion of same made in open meetings of Local Union and membership
action therein being recorded in minutes of the meeting. Such loans are never
made in any written contract form, have no written application therefor and no
writing (except minutes) to show the loan is a lien against the mortuary benefit.
Such was the proceeding in Mamary securing his loan.15 Although Cingale per-
sonally knew Zimel for 15 years, the Union had never hired him as an attorney.
He alleged that any consultation between him and the Charging Parties regarding
their difficulties was only a matter of general conversation and general discussion
in a meeting. They apparently did have the opinion that the "Union should defend
13 Mamary admits he was subsequently paid $100 by Kolanko and $50 by Meier as their
share of the retaining fee, but that due to his personal circumstances he has not repaid
anything as yet to the Union on his loan, but intends to do so, and that his obligation
still subsists.
is His recollection was that he first saw Mamary early in December 1952, but that lie
had seen Kolanko a few months before and had previously known him in a professional
way.
zs No chargee other than Mamary received any advances of money.
NEWS PRINTING CO., INC. 1277
them" or suggested "Union do something for them," but he says they were advised
that as a union "We could not do that."
The Respondent put in evidence the financial reports appearing in the Typo-
graphical Journal, organ of the International Typographical Union, issues of January
and March 1953, respectively, showing that in the 6-month period ending Novem-
ber 20, 1952, the International had made a special assistance payment to Local 195
in the amount of $1,000. The Respondent contends the money from this payment
was used for fronting purposes in making the retainer payment to Zimel and also
in reimbursement payments to Meier and Kolanko in connection with organization
work among employees of Respondent. I regard this as mere assertion lacking
any connecting proof.is
The conflict in testimony of Mainary and Zimel relative to the retainer check
and delivery thereof, could have been cleared up through testimony of Cingale,
but unfortunately he was not questioned in such regards. I am inclined to and
do accept as credible the testimony of Zimel in relation to this retainer payment,
particularly in view of his frank expression regarding other matters hearing on
his connection herein. I am also convinced from the record that there was only
one payment of $250 retainer fee to Zimel, namely the union check so delivered.
I am certain there was no cash payment of similar amount by Mamary. A cursory
reading of his testimony might tend to give such impression. However, what
actually occurred appears to me to be that Mamary and Kolanko, understanding
the amount of retainer fee asked by Zimel, agreed just before seeing Zimel per-
sonally on the matter, to divide the payment of it between themselves, Kolanko
to pay $150 and Mamary $100. No payment of any kind was made to Zimel
then, and no money was put up by either Kolanko or Mamary, but pursuant to the
suggestion , the union loan was procured by Mamary and payment made to Zimel
as Mamary says "for myself and others." 'T Mamary, I believe in his testimony,
wanted to conceal just what the details of the actual transaction were regarding
the loan, and yet be the voluble witness he was otherwise, and so he readily
agreed he secured the money from somebody else and that the money paid for
the retainer was from other than his own funds. Yet, he also insisted that the
money paid to Zimel was "at the time; yes; it was all my own," which he then
qualified by stating that as to his own funds in the retainer payment, " mine was
in there, yes, hundred." Undoubtedly Mamary alone became solely responsible
and liable for any repayment of the union loan and hence his statement, that the
money for the retainer was all his own, is not inconsistent with his other declara-
tions regarding the retainer being for others, the retainer payment having $100
of his share in it , the giving of union check to Zimel, the later payments to him
by Kolanko ($100) and Meier ($50), and to an extent his utilizing such payments
personally and accommodating his repayment of loan to the Union to his own
convenience and needs.18 From a strictly business viewpoint, the union loan
procedure herein may appear very loose and weak and from other angles even
suspect, but I find that it was not used herein to cover up any other purpose than
the avowed and open one asserted, and was not a pretext in relation to the pay-
ment of attorney fees, or for the inciting of filing of later individual charges. I
find there is no evidence to show that Zimel was in any way before or at this time
an attorney for the Union, and that no proper inference can be drawn from the
check procedure to establish herein that he was in reality acting for the Union
as a real party in interest." It is certainly significant in relation to these allega-
tions that he represented two of the chargees in other matters before appearing for
them herein.
ii There is nothing to show any earmarking of the funds received In addition Mamary
was still an employee of the News at that time and for considerable period after such pay-
ment was made to Union and had not retained any attorney. The Kolanko reimburse-
ment payment was made in the period of receipt of this advance to the Local Union, but
the Meier payments were long after the time of receipt of such funds.
11 Subsequently, after the check delivery and after he had filed a charge on December
22, 1952, Meier was apparently also included in the personal arrangement and as his share
paid $50 to Mainary in January 1953
is Under the latter circumstance, the procedure of the Union in making payment of the
Mainary loan directly to Zimel, which would assure accomplishing the purpose for which
the loan isas secured and made, may evidence wisdom and the taking of reasonable
precaution
19 His handling of retainers and retainer fees may not be unusual with an individual
practitioner
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The small reimbursement payments by the Union to Kolanko and Meier, made
several months after each had filed his individual charge, even though for organi-
zation work in the News, are not in my opinion of any substance in showing that
these individuals were fronting for the Union at the time of making the charge.
Much ado has been made in the Respondent's brief of the activities of Meier
in taking other aggrieved workers to the Board, his shepherding some to Attorney
Zimel, and apparently securing their signing of retainers in some instances where
the party signing did not know much about what was involved; together with his
constant attendance at the hearings sitting with and advising the General Counsel
and his own attorney. Meier is and has been chapel chairman and was active in
the work of soliciting members for the Union. He also has individual grievances
as a worker. It does not appear unnatural therefore for him to evince a deep
interest in the similar complaints of others in the employ and even from a selfish
viewpoint to take all steps he could to further their joint community of interests.
I find his designation as chapel chairman does not make him an "official" of the
Union,' even though in such capacity he would have to work in close cooperation
with the regular union officials." Even though he might be deemed an active
protagonist of the Unon, to attempt to ascribe all his actions and those of the
other chargees herein to the Union itself, would be tantamount to "saying that a
man cannot touch pitch and not be defiled, may not be thus applied." 22 As a clear
commentary on his position, that of the Union and the individual chargees in relation
to the fronting allegation, I believe the following inconspicuous testimony of Carruth
as to what Meier told him after he instructed him to sign a retainer, is very illuminat-
ing: "When trial is concluded we will get together and find out how much the bill
comes to and then split it up among us." On the weight of the entire evidence,
I find that the Respondent has not established by substantial evidence that the
chargees herein were acting in bad faith in filing their charges, and in reality were
not the real parties in interest but were fronting for the Union as the interested
party. I find the Board had jurisdiction to issue the complaint based on these
individual charges validly filed, and that it effecuated the policies of the Act to
assert such jurisdiction.
On the entire record in the case, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT 23
1. THE BUSINESS OF THE RESPONDENT
The Respondent is and at all times herein mentioned has been a corporation duly
organized and existing under the laws of the State of New Jersey, with its office and
principal place of business located at 143 Ellison Street, Paterson, New Jersey, and
has been continuously engaged there in the newspaper,24 news service, printing, and
publishing business. In the course and conduct of its business the Respondent during
the previous year purchased newsprint and other materials and supplies in excess of
$500,000, of which approximately 90 percent were transported in interstate com-
merce from outside the State of New Jersey. During the same period, Respondent
shipped finished products in the form of publications valued in excess of $2,500,000
to points in States other than the State of New Jersey, utilized national and interna-
tional news services, and printed advertisements valued at a substantial amount of
products nationally sold and distributed.
Respondent admits and I find that it is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 195, International Typographical Union, is a labor organization admitting to
membership employees of the Respondent.
20 The constitution and bylaws of the Union do not list the chapel chairman as a gen-
eral official of the Union.
n The organizing work of the Union in relation to this newspaper plant was actually
directed and conducted by a committee of which he was not a member.
22 Augusta Chemical Company, supra
23 In making the findings herein, I have considered and weighed the entire evidence. It
will needlessly burden this report to set up all the evidence on disputed points. Such tes-
timony or other evidence in conflict with the findings herein is not credited.
PA Publishes daily, except Sunday, the Paterson Evening News It was stipulated on
the record that when the testimony shows employment of an individual by the Paterson
Evening News, it shall be considered tantamount to testimony that such person was em-
ployed by the News Printing Co., Inc., the Respondent.
NEWS PRINTING CO., INC. 1279
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Earl J . Fisher has been superintendent of the composing room of the Paterson
Evening News since 1936, in charge of the mechanical production of the newspaper
up to the stereotyping operation . His functions included allegedly also the inter-
viewing and hiring of all composing room workers , supervising training of ap-
prentices , making recommendations for wage adjustments , selecting the foremen, keep-
ing production records, and the discharge of composing room workers . Although
apparently the pressroom and stereotype departments of this Respondent are con-
ducted under some form of union agreement , recognition , or cooperation , the compos-
ing room operation has not been . Background indication was to certain organiza-
tional effort at this paper by the Typographical Union, with a strike involved, about
20 years ago . Practically all of the supervisory force now in the composing room
were hired at or closely subsequent to such time . Local 195 of such International
has been engaged in an organizational campaign again in Paterson , affecting the
employees of the Morning Call (a newspaper ) since the fall of 1951, and those of
the Evening News since the spring of 1952. Fisher at one time was a member of
the Typographical Union for an 8-year period , with briefer terms since, but is not
a member now . It appears clear in this record that he tried to operate so as to de-
velop among his selected employees , a friendly feeling of loyalty to himself and the
News organization , and kept in close touch with production and personnel problems
in his tours through the plant premises , made practically every half hour in the day.
For all general purposes he was in complete control and the composing room was his
domain.
B. The position and probity of Fisher in connection with disposition of these charges
Before considering the express charges made , it therefore becomes necessary to
assess the position of Fisher in relation to the entire situation presented . He is the
focal point around which all the charges center , they all involve either his statements or
actions. The entire case of the Respondent in opposition likewise practically hinges
on the weight of credibility accorded to him. He was present, advising and sitting
with the attorney of Respondent , through the entire case presented by the General
Counsel , and listened attentively, it appeared to me, to all the testimony presented by
the various witnesses . Aside from the general allegations of the various charges and
the complaints herein, he thus had ample opportunity to know not only the general
nature of the allegations of these various employees but the specific testimony as to
dates, times, and places alleged of all things charged. Clearly throughout the case
presented on behalf of the chargees , the dates of October 1 and early October
1952, were emphasized and reiterated in relation to claimed occurrences . Unless
smugly complacent or overconfident , it appears they should have rung some bell of
recollection in his memory as to actual events at the time claimed . In his testimony
otherwise , he exhibited a keen recollection of the gist of all incidents and many
conversations with these charging employees and others , which he desired to recall, but
taking refuge in many instances of a claimed lack of knowledge of specific wording
or actual dates. In his testimony he categorically denied practically all vital asser-
tions of the charges and allegations of the witnesses produced by the General Counsel.
He specifically testified on May 27, 1953 , in direct examination to the fact of leaving
the plant for his vacation on September 26, 1952, leaving Paterson with his wife about
4 p. in. on such date by auto en route to Illinois to visit his mother -in-law, that he was
not in Paterson on October 1, 1952, and that he returned to Paterson on October
14, 1952, resuming his work on Wednesday , October 15. He clearly reasserted and
reiterated such testimony in his cross -examination by General Counsel on May 28.
His cross-examination was not concluded when adjournment of the hearing became
necessary on Friday , May 29, because of the alleged serious illness of the wife of
the Respondent 's attorney . The testimony shows that Fisher bowled that same
Friday night with his regular league team.
On the previous night (Thursday ) Attorney Zimel visited the bowling alleys, ap-
parently on a hunch, succeeded in checking the league bowling records , and secured
from such records the startling information that Fisher had been in Paterson and
bowled with his regular team on the nights of September 26, 1952, and also on
October 3 , 1952, indicating the incorrectness of the positive testimony given by Fisher
as to his alleged vacation period. The early adjournment of the hearing on Friday
May 29, prevented any cross -examination of Fisher on this phase of his testimony.
When the team was present and preparing to bowl on Friday , May 29 , 1953, D.
Kennelly, captain of team , was called aside into a dining room by Edelson , the bowl-
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing alley proprietor , who told him of the visit of Zimel and his checking of team
records, and inquired if "somebody was in a jam ," to which Kennelly replied he did
not know. Allegedly, Edelson did not tell nor did Kennelly ask what information
Zimel was looking for . Kennelly states he does not know if Edelson spoke to any-
one else on the team. He also denies he told the conversation or mentioned the fact
of the visit of Zimel to anyone or discussed it with any other members of the team
including Fisher. He bowled for the next 2 hours with his team. Kennelly , as well
as team members Fazzio and Pelenero , who testified also, are subordinates of Fisher
in the News. The testimony of Fazzio and Pelenero is to the effect that they had no
conversation with Edelson or Kennelly on that Friday night and did not discuss any-
thing in relation to this matter. I do not credit the testimony of Kennelly , Fazzio,
or Pelenero in respect to this matter . Fisher denied any talk with his teammates
regarding this case on such night , or any discussion of it with anyone else in bowling
alleys and denied looking up any records.
The next scheduled session of hearing on Monday, June 1, 1953 , for the con-
tinued cross -examination of Fisher was adjourned on request of the attorney for
Respondent on information he allegedly received at 8:20 a. m. that morning as
to a new illness of Fisher . 25 Assuming good faith , an adjournment was granted
A medical certificate , subsequently communicated to the Trial Examiner and read
into the record at the hearing on Thursday, June 4, gave a diagnosis of acute
exacerbation of colitis , requiring confinement . At a hearing on June 4, Fisher
was again available for continued cross-examination after either his real or possibly
convenient illness.
In the interim , despite apparently no one having said anything about the Zimel
bowling alley visit, Fisher not then allegedly having learned anything regarding the
bowling alley investigation , and not then allegedly realizing the incorrectness of his
previous testimony , Robert Goodwin, an attorney and office associate of the attorney
for the Respondent , visited the bowling alleys on either Monday or Tuesday, June 1
or 2,26 by direction of Rosenberg , Respondent 's attorney, stating he "was asked to
look at certain bowling records " of a team during the period of September and
October 1953 and was asked to check "Mr . Fisher." Edelson showed him the
records from which he made notes as to names of members and dates and told
him of the previous visit of Zimel. From him , Edelson stated he learned the News
was involved . Later that same day, but following this visit, Edelson destroyed
the bowling records of this team on which Fisher bowled for the reason he expressed,
"I did not want t6 get involved," and did so allegedly entirely on his own initiative.
At the outset of the resumed hearing on Thursday , June 4, 1953, attorney for
Respondent made a statement disclosing that Mr. Fisher informed him that morning
that during his illness he had learned from his wife on Tuesday of that week that
his dates regarding vacation and leaving Paterson , as given in his testimony, were
incorrect and that he wished to correct his testimony . Fisher then testified as to
the fact that he did not leave Paterson on vacation as he previously testified, but
that due to the illness of his wife he did not leave until the following Saturday,
October 4, 1953. His memory as to such an astounding fact was only refreshed
from such discussion with his wife on Tuesday during his illness. She remembered
it, and after she mentioned it, "then I remembered ." He had never discussed
anything regarding his testimony with her before . He made his previous answers
as to leaving and return dates on a recollection based on a vacation schedule list
he kept in the office . He did not know if his wife saw any doctor in the week in
which his planned trip was delayed . Their Illinois vacation trip had been planned
all summer. When it was delayed for a week , he took no one in his confidence
telling them of his changed plans. During the week's delay , he allegedly went
fishing, and to an initial question regarding what he did on the night of September 26,
when he did not start the planned vacation , he stated he watched television and
loafed, but amended it later to state that his recollection now is he bowled that
night ( in accordance with actual fact) and watched television later. The vacation
schedule, an exhibit originally offered in connection with his direct testimony to
buttress his testimony as to his alleged date of departure , poses questions he does
not satisfactorily answer. Ostensibly he noted his vacation period thereon months
in advance of time and made notations on it in the summer. The placing of initials
of a person opposite the weeks selected was the method used, with a cancellation
"It had been necessary to grant a 1-week adjournment due to his illness prior to the
beginning of his direct examination by Respondent.
YB He later definitely determined it was Tuesday Edelson, the bowling alley owner,
testified with equal certainty it was Monday.
NEWS PRINTING CO., INC. 1281
after having vacation by crossing out and circling such initials. His initials appear
opposite the week of September 26-October 5, 1952, are absent for the week of
October 5-12, but again appear opposite October 12-19. He had no explanation
for the omission of initials relative to the October 5-12 week, despite his alleged
continuous period of vacation, but thinks the initials for the other weeks were
placed thereon at the same time. Such vacation schedule, cancelled to show vacation
taken in the week of October 12-19, and the claimed basis of his recollection as
to his vacation time, was also his determinant in positively stating he returned to
Paterson on October 14, as he knows he returned to work on a Wednesday, and
October 15 was a Wednesday. Another exhibit of Respondent was offered for a
similar purpose, a letter to Fisher from Harry Haines, publisher of the News, dated
September 25, 1952, pointing out that Fisher was leaving the next day on a vacation
auto trip to Illinois and extending good wishes and appreciation of his services.
In the light of subsequent facts developed, it now appears as not only self-serving
in the circumstances, but decidedly suspect.
In certain collateral matters, the General Counsel produced a former employee
now in the armed services, John Cook, who testified clearly as to a conference in
Fisher's office in July 1952 to which he was summoned. He stated Fisher asked
him if he wanted to tell him anything regarding his union activities. He alleges
Fisher informed him that he knew that Cook signed a union application, that he
knew all about what Cook did with the Union, and asked him if he would deny he
went to a union meeting. Fisher, although admitting a conversation, denied without
reservation that he asked him regarding the union meeting, although he was vague
in his recollection regarding other allegations concerning questions relative to the
Union. Cook states Joan Kinder, secretary to Fisher, was present, about 6 to 8
feet away. She testified she was present, at her desk, and definitely heard Fisher
ask Cook if he attended a union meeting, together with an affirmative answer thereto
by Cook. I credit the testimony of Cook and Kinder.
Regina Smithing, a witness on direct examination for Respondent and called in
rebuttal by General Counsel, definitely contradicted the testimony of Fisher as to
the top rate which could be paid to proofreaders, based on information he gave
her in her hiring interview in August 1950. I credit her testimony in this matter.27
From the foregoing, I am convinced that the original testimony of Fisher in
regard to this matter of time and vacation was false, and must have been so
known to him when given, and I am equally not convinced that his revised story
and explanation of how he learned of his error, is true. It appears to be the
taking of an ungallant refuge. The attorney for Respondent has not seen fit to
offer any explanation as to his startling activity in relation to the bowling alleys
and the facts of Fisher's bowling history, and I believe in the absence thereof
I am warranted in assuming knowledge, regarding the situation, seeped down to
him from either Fisher or those allied to him. The knowledge that the true facts
were available to and in the possession of the attorney for the chargees and the
General Counsel, undoubtedly required a changed story which was quickly sup-
plied by Fisher, and the hearing in the meantime delayed. The fact that a vaca-
tion of definite purpose long planned as here, and suddenly defeated by an illness
of a man's wife, and further allegedly delayed for a full week and to that extent
the enjoyment shortened, could be consistently and completely forgotten by any
man in normal possession of his faculties, and one actively participating in pro-
ceedings as herein, in which the dates thereof were vitally important, and only
then be recalled to his recollection by a chance statement, is certainly something
that only the most gullible could be expected to swallow. This Trial Examiner
cannot do so.'
After reading the entire record, and observing the demeanor of Fisher as a
participant and witness throughout the case and particularly in his final testimony,
I am convinced and find that Fisher has slanted and colored his testimony re-
gardless of fact and truth, and is entirely unworthy of belief as to controversial
matters herein, and that in all instances where his veracity is involved, in direct
opposition to that of other credible witnesses, his testimony should not be credited
and will not be by me.
$'' Other illustrations bearing on impugned eredibility of Fisher are apparent in the
record. ( McLeod, Hutton, Pavlick, and Solinger ) In the interest of not burdening this
record further, they are not elaborated upon here.
?a The 70-page brief of Respondent makes only passing reference to this whole episode
and waves it off in a few lines of an incidental reference to a mistake in testimony which
was corrected , and one not requiring untoward emphasis.
338207-55-vol 110-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The alleged discharges
1. Norman Kolanko
Kolanko started work as a composing room apprentice in April 19 49, and his
services were terminated by discharge on April 26, 1952. He had signed a union
application in early April 1952, and had been active in soliciting other workers
to also join the Union . It is conceded that there is no question of any violation of
alleged rule against solicitation on premises involved in his discharge.
An initial challenge to the Board jurisdiction over this claim is raised in the brief
of the Respondent alleging it is barred unnder the provisions of Section 10 (b)
of the Act. This is based on the first amended charge of Kolanko filed September
10, 1952, not alleging the discharge and the original complaint issued January 6,
1953, likewise not containing any allegation of violation of Section 8 (a) (3)
in relation to him. His second amended charge filed February 16, 1953, did set
forth the discharge on April 26, 1952, and the consolidated amended complaint
issued February 19, 1953, also contained an allegation of the discriminatory dis-
charge of Kolanko . It is noted that the original charge of Kolanko on behalf
of himself and Frank Agnes, filed on April 28, 1952, did allege his wrongful dis-
charge on April 26, 1952. I find no merit to this objection . The original charge
of Kolanko was properly served and never withdrawn . The consolidated amended
complaint was properly issued .2' The reliance of Respondent on Indiana Metal
Products Corp. v. N. L. R. B., 202 F. 2d 613 (C. A. 7), is not well taken, as
there the reversal of the Board in part was on facts not similar to those herein.
It is apparent from the record that for the greater part of the period of his em-
ployment, Kolanko was considered an excellent and ambitious worker. He was
on very friendly terms with Fisher, receiving books on fishing and hunting from
him. Kolanko alleges that in January 1952 Fisher , in discussing with him future
prospects in the Company , stated that Kolanko was most likely to take over in
any advancement , and offered to give him his own books on printing to help him
prepare. The Respondent alleges, largely through testimony of Fisher, that
Kolanko was sullen and surly , dissatisfied with the machine he was using, when
not doing ad composition work that his production had fallen off, and that a threat
to fire him had been made several weeks previous to discharge with a warning from
Fisher to him "to grow up." Kolanko denied both the existence of the facts
alleged and the statement of them to him. From my observation of Kolanko, I
believe he is a somewhat temperamental , aggressive personality who could easily
react moodily to what seemed to him disappointing or discouraging circumstances.
But, his testimony impressed me as straightforward and honest . I credit him in
all conflicts thereof with that of Fisher.
An incident on the morning of April 26, 1952, at approximately 10 a. m.,
termed "trivial to me" by the other party (Kennelly ) directly involved , appears
to be the alleged basis of Respondent 's action in terminating the services of Kolanko
at the conclusion of such workday. Kennelly was in charge of preparation of
advertisement copy of Meyer Bros., a large local department store advertiser.
Fisher testified that Meyer Bros. ads and corrections of them had preference over
all other work in the plant . Kennelly stated likewise. Kennelly marked a proof
for correction and laid it down on the machine of Kolanko to be made, and walked
away. It was work that could be performed in a minute . When Kennelly did
not get it back in a reasonable time, he stated he asked Kolanko for "the line"
and was refused . Kennelly testified at first that Kolanko gave no reason to him
and mentioned nothing regarding any orders precluding his doing it, but ques-
tioned later regarding statements he made soon after the incident to a Board
investigator , he admitted that Kolanko probably did tell him he had orders against
setting lines for ads while working on current news items before presstime. Ken-
nelly further admitted that he knew it was the custom in the composing room that
advance advertisement and other advance copy is to be set after the deadline time
for that day's paper. It is clear from the record that this particular ad, even if
worked on and corrected , could not have been sent to Meyer Bros. for approval
and returned to the News before the deadline time ( 11 a. in. on Saturday) and
could not go in paper that day. It was therefore advance copy . Fisher main-
29 Star Beef Company, 92 NLRB 1018, enfd. 193 F 2c1 8 (C A 1) ; Nina Dye Works
Co. Inc , 95 NLRB 824, enfd 198 F 2d 362 (C A 3), cert denied 344 U S 924,
United States Gypsum Company, 97 NLRB 889, Wester Boot d Shoe Company, 82 NLAB
497, enfd 190 F 2d 12 (C. A 5), rehearing denied 190 F 2d 556 (C A 5) ; Pacific Amer-
ican Shipowners Association , et at, 98 NLRB 582
NEWS PRINTING CO., INC. 1283
tamed that the rule of the shop regarding Meyer Bros.' work preference was abso-
lute and controlling , had been communicated to Kolanko when he was put on such
machine early in 1952 , and implied it had been openly violated , in that the work
involved here-was a proof that had to be released by Meyer Bros. that day. When
Kennelly did not get the corrected copy, he told his situation to Fisher. The
latter then spoke to Kolanko, who allegedly refused and then did perform the work
required . Kolanko testified he did refuse to correct the ad copy as requested
by the act of Kennelly in laying it before him, giving the rule regarding daily
news copy preference over advanced copy as his reason and asking him to go up
and get Fisher. He also states Fisher did not order but asked him to make the
line correction , with which he complied ." The visit of Fisher was about 5 min-
utes after the episode with Kennelly , and although Fisher stated there was no work
on the machine of Kolanko when he arrived , it is clear that Kolanko had just
finished work on news copy and dumped the type.
Kolanko continued to work the balance of the day and 5 minutes before quitting
time was called to Fisher's desk and paid off ( with pay envelope already prepared).
Kolanko testified Fisher then told him , "I think we have treated you right here,
and your work is excellent but you haven 't any interest in the place. Therefore we
have to leave you go."
Apparently • there was some confusion regarding the rules in effect regarding
priority as between live news copy before deadline time and Meyer Bros.' ad cor-
rections , and in the understanding of them in the mind of Kolanko. His action in
the matter does not appear to be merely truculent or wilfully noncooperative. If
this was, however, the only phase of the matter , the discharge would have to be
affirmed. But as to whether it was really based on other factors must be considered,
such as whether the discharge was motivated by knowledge of his union membership
or activities . In many cases the Board has held that in the small plant , an inference
can be indulged as to an employer 's knowledge of union activity or membership
of a dischargee . This composing room had about 75 employees , with a close super-
vision by Fisher . Mamary testified to a conversation at his work place with Fisher
on a Saturday afternoon in early April 1952, in which , allegedly, Fisher declared,
"I suppose you know by now that the Union is trying to get into the composing
room ," "I understand there is somebody upstairs going around bothering my em-
ployees, trying to get them to sign applications for the typographical union," and
"if I catch the s. o. b., I will fire him on the spot." Further , "would you have
any information as to who was going around getting applications." Mamary fur-
ther alleges that on the following Saturday , and on a date when he knew Kolanko
and Agnes were not working for a week or so , Fisher again approached him at the
same melting pot location and inquired , "did you hear about Frank Agnes and
Norman Kolanko ," and then proceeded to tell him of their alleged tribulations rela-
tive to their securing other work. He further alleged many inquiries by Barnes,
his superior in charge of the monotype department , starting in late 1951 and con-
tinuing , relative to news about the union activities at the Morning Call, at a time
when Mamary called there regularly in connection with an exchange of type faces
and mats.
Meier alleged a conversation with Fisher about the beginning of 1952, at a time
when he was also visiting the Morning Call, in which Fisher told him of the organ-
izing campaign at such place and advised him to keep away from the Union.
Meier further testified that Fisher approached him near the lead pot on the floor
below the composing room in the early part of April 1952, and stated to him that
he heard that Meier was trying to organize the News, and also that he had applied
for membership in the Union. Meier testified that, "If the [ Fisher ] finds out the
latter was true [within such afternoon ] I will be out ." Almost a week or so later,
and he fixes the date as the middle of April , Fisher again approached him at the
same place and spoke to him regarding stories he had heard from the Morning
Call to the effect that the "big guy from the News" was with the Union . Meier,
modestly or otherwise , took the appellation as referring to himself . At such time
Fisher also allegedly told him , "they have ways of finding things out ." Meier further
alleges that on Monday , April 28, 1952, following the discharges of Kolanko and
Agnes, Fisher stated to him "you see what I got from fishing around "; and further
that he knows of a union meeting held on Sunday, and that Meier was one of only
three of those who were supposed to attend who did not tell him about it. Pavlick
testified that on the Monday following Kolanko's discharge , Fisher gave him a note
stating two employees had been fired last Saturday , and that "he knows I made
31 Fisher testified Kolanko said , "all right ; I will set them if you want me to."
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an application to join the Union," and that if I did not be careful I would be let
out." Solinger testified similarly. 1 2 There is no denial in the record of these allega-
tions of Pavlick and Solinger . I credit the testimony of Mamary , Meier, Pavlick,
and Solinger in regard to these conversations with Fisher , and do not credit the tes-
timony of Fisher in any regard thereto. I find from the evidence , and under the cir-
cumstances , that an inference would be warranted as to the knowledge of the Re-
spondent regarding the prior union activities of Kolanko , and that in fact Fisher
did have such knowledge and evinced it. I further find that the discharge of
Kolanko on April 26 , 1952, was discriminatory and was based on his union activi-
ties, and not the pretext reason or occurrence availed of by the Respondent and al-
leged to be the reason , and that such discharge was in violation of Section 8 (a)
(3), and tended to discourage membership in a labor organization , and thereby Re-
spondent was further interfering with, restraining , and coercing its employees in the
exercise of rights guaranteed under Section 7 in violation of Secton 8 (a) (1) of
the Act.
2. Edward Mamary
Mamary started work on January 22, 1949, and subsequently at his own request was
transferred to work in the monotype department , 33 where he was continuously en-
gaged for over 2 years prior to his termination of service on November 18, 1952.
On such latter date with his pay envelope prepared in advance, he was told by Fisher
that "I am laying you off . .. your job is abolished ," and Mamary alleges he was
also told , "you can be sure you never will be recalled to work." The question pre-
sented is whether a discriminatory discharge was in fact effected or a legitimate job
abolition and layoff made . After review of the whole situation presented and the
evidence , I find that Mamary was discriminatorily discharged because of union
activities in violation of Section 8 (a) (3) of the Act.
The Respondent in its brief stresses that Mamary was hard to get along with and
after seeking transfer from his present work became indifferent to his work and sullen
for a period of about 6 months prior to his termination . Fisher stated the basis of
his action is due primarily to Mamary's ( 1) failure to produce proper amount of
material of good quality, ( 2) neglecting machines by being absent from machines,
(3) not tending to business , and (4 ) loss of interest in a desire to get out of the de-
partment. Fisher admitted most of these complaints stated were based on his own
observation and not on information or complaints from Barnes, the immediate
superior of Mamary.34
Several significant events shortly preceded the termination date. On an uncertain
date in November but alleged by Mamary to be in the week previous to his termina-
tion on November 18, 1952,35 Regina Smithing , a proofreader, while walking to her
work place and going through the department where Mamary worked, was spoken
to by Mamary, in which he accused her of running to the boss ( Fisher ) with stories,
told her he was a member of the Union , and asked her to join , which she refused to
do. While they were talking Fisher suddenly appeared , standing behind her , neither
party noting his approach nor where he came from , nor how long he may have
been standing there. After inquiring if it was a discussion he should be in on and
being informed by Smithing that it was not, he ordered each to return to their work.
Later in that same day, Smithing testified Fisher came to her desk and she volunteered
to him all the details of the conversation with Mamary , and Fisher told her not to
worry. Mamary testified that when Fisher gave him the direction to return to work,
he was in fact working and watching his machines at the time, and that Fisher de-
clared to him that "I know what you are doing here I know you got a union
card. I could even tell you the number of it." After further conversation , Mamary
31 Pavlick and Solinger each stated they gave signed applications to Kolanko about 1
week before his discharge
33 In his brief , in another connection , attoiney for Respondent states "apparently Solinger
speaks truthfully."
33 Monotype is a machine manufacturing supplies such as rules and lines for use by other
employees in setting composition.
i4 Barnes' testimony indicates he did not complain of Mamary 's alleged personal short-
comings. In general , however, testimony of Barnes clearly was slanted by him to try and
carry water on both shoulders , affording some support to either side of this controversy
as he deemed it best, being completely indefinite in recollection as he saw fit , and generally
coloring his answers as to what lie thought might have or should have occurred rather
than the actual facts of happenings . It should be noted though that he testified that lie
never asked to have Mamary fired , and did not know lie is,is going to be fired
35 Smithing also states it was in November
NEWS PRINTING CO, INC. 1285
alleges Fisher said, "Well, you had better start looking for another job." Incidentally,
Fisher testified that he did not believe that the Smithing episode had any particular
bearing on the Mamary termination, an assertion which is not credited by me.
Evelyn Sheely, employed at the News for 8 years as compositor and on makeup
pages, testified as witness for Respondent that on an unspecified date in November
1952, Mamary called her over to his department and threw a union card "at me"
with request to sign it, which she refused.36 Later the same morning when she
required a "folio" (page number) not available in the usual place in her location, she
went to the monotype department where they are made, and asked Mamary for it.
He refused to give it to her, and as she started away, he called her back and said,
"Here, do you want it," which offer she refused. She admitted Mamary said, "I
can't give them to you." Although vague as to the date of the occurrence,37 she
stated she only saw Mamary around for 1 or 2 days after it and then he was finished.
She informed Swayne, her foreman, of the refusal of Mamary to give her the folio,
and he went to Mamary and secured it, telling Mamary if there were any complaints
regarding his getting it, to refer the parties to him.38 Swayne conceded that Barnes
had set up a rule that operators were not to get folios from his department, but to go
to places where folios were stored for replenishment purposes, as in ad alley, the
rule which Mamary was evidently trying to enforce when faced with the request of
Sheely.39 Fisher, in addition to his alleged reasons previously stated for the Mamary
termination, admitted that the failure of Mamary to give the folio to Sheely, partially
entered into his determination. He admitted further he had been told of Barnes'
rule re not giving out folio on individual request, but "I never issued it."
The last actual day worked by Mamary was Thursday, November 13. He com-
plained of illness that day and Barnes gave him aspirin pills. He was absent the
following Friday and Monday, both of which days his wife telephoned, Barnes ad-
mitting receiving the calls in the ad alley about 8 a. m. Under an alleged plant
rule it was required that absent workers call before 7 a. m., the starting time of the
shift. Although considerable testimony was offered as to this rule, it does not appear
that violation of it, if any, was an important factor in his termination. No one was
detailed to the work of Mamary on his absent days, but since his termination and
alleged abolition of his job, one DiCicco (who occupied the position prior to Mamary
and was now working in ad work), was detailed to it and has performed work there for
5 hours daily, 5 days a week. Barnes testified he did not consider it a permanent as-
signment, although the position then existed for about 6 months. It appears clear
that herein was not so much an abolition of a job as such, but rather the abolition of a
particular holder of it.
As to whether the Respondent had knowledge of union membership or activities
of Mamary, reference has previously been made of Smithing divulging to Fisher
the statements of Mamary in her conversation with him in November 1952, and.
also to Mamary's allegation after said conversation to statements of Fisher that he
knew he had a union card. I credit the testimony of each of these workers in such
regard. In addition, Barnes testified that Mamary told him shortly before October 3,
1952 (1 question the accuracy of the date), that he had a union card. I am quite
convinced that what Barnes learned, Fisher shortly knew. Mamary had visited the
Board office on the day before his termination. The allegations of Mamary (which
I accept) that Fisher, immediately after his termination, stated to him that he knew
where he was going, and that he had been there the previous day with another
employee (Meier), clearly I believe indicates some knowledge on the Respondent
of what activities Mamary was indulging in. I find sufficient credible evidence to
substantiate that Respondent had knowledge of union activities of Mamary. I find
further that the alleged reasons given for his termination were mere pretexts to
conceal the actual basis of action and that he was in essence discharged and that
such discharge was discriminatory and based on his union activities. In violating
3e In June 1952 she alleged Mamary told her about the Union and informed her somebody
would like to see her sign something.
34 Finally accepting November 13 as the date.
's Swayne was a superior of Barnes and a supervisor of Mamary.
3nA few minutes after she got the folio from Swayne , Sheely alleges Mamary came over
to her work place and called her a "squealing s o. b " She did not remember if she used
the same language in her statement to the Board investigator, but recalls she said there
that Mamary stated , "You never will be any G- D- good." She admits telling Swayne
about this and he testified as to his recollection being that she quoted Mamary as saying
"she was no good for pimpin ' on him." He states she did not use any profanity in telling
him of the incident . I do not credit the testimony of Sheely as to the language used.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 ( a) (3), I find that this action of the Respondent tended to discourage
membership in a labor organization and in addition was also violating Section 8 (a)
(1) of the Act.
3. William H. Huebner
This employee was hired on June 23, 1948, and his services were terminated by
discharge on December 13, 1952. His charge was filed with the Board on Decem-
ber 16, 1952, and alleged violation of Section 8 (a) (1) and (3). His original work
assignment was a linotype apprentice but on complaints of the night foreman that
his work was not satisfactory, he was shifted to assisting the machinists, work which
he had been engaged in about 4 years at the time of his termination. In this capacity
he had to clean stainless steel space bands and brass matrixes (metal devices used in
linotype composition work), keep grease cups on linotype machines filled and
lubricate such machines, sharpen and replace dull saws used for cutting printing metal,
and daily sweep the floor of the linotype machine area of the composing room. This
area was about 75 by 30 feet and the floor sweepings not only would include the
usual paper trash but lead metal shavings, and to a degree a certain number of
the space bands and matrixes falling to the floor which were not seen and retrieved
by the regular linotype operator. This sweeping refuse was dumped by Huebner
down the chute to the floor below where it collected in a bin and was shoveled
therefrom by the metal pot operator (Crothers) into the melting pot where it was
heated and the molten lead metal poured off into lead pigs, and returned for further
use in the linotyping work. In connection with this operation, the dross of the
melting metal was skimmed off by the operator and deposited in large metal barrels,
and later sold in a salvaging deal.40 Certain foreign particles, as space bands and
matrixes, would float in this dross and be skimmed off with it.
Pelenero and Fazzio, machinists whom Huebner assisted, and called by Respond-
ent, testified to his work particularly in regard to the lubricating, grease cups, care
of space bands, matrixes, and saws, and his shortcomings in the performance of it
in the past 2 to 3 years His neglect of it as described by them was largely based
on forgetfulness and alleged lack of interest in it. However, no disciplinary action
affecting his job tenure was taken based on such delinquencies and he was still kept
in the same work.41 In early 1952, the complaints of Pelenero and Fazzio regarding
the lack of the cleaning space band aspects of his work, were communicated to
Fisher and the latter called it to the attention of Huebner.
During the period of his apprenticeship up to July 1, 1952, Huebner regularly
received an increase in wages every 6 months. Huebner stated that he signed a
union application in April 1952 and that he had attended union meetings. Huebner
testified that in July 1952 Fisher asked him to come to his desk, and stated to him
that he expected Huebner would be up to see him sooner when he did not get any
regular raise in July 1952 42 Huebner stated his reply was to the effect that as his
wage rate was so close to the journeyman wage, he did not expect then to receive
the increase for another 6 months. At this point, I find on the record that the
General Counsel has failed to show by any substantial evidence that Respondent
at such time had any knowledge of union membership or activities of Huebner
that the failure to accord him an increase in pay then was not based on any dis-
crimination because of such asserted reasons, but that such action was justified in
view of the general complaints regarding the work of Huebner. I shall recommend
the dismissal of such amended complaint allegation as to Huebner.
In such July 1952 conversation, Fisher allegedly then informed Huebner that
the machinists were complaining regarding his work as not being satisfactory, and
were recommending he be taken off of it and returned to linotype work. Huebner
stated that such an arrangement would be satisfactory to him. Fisher, however,
40 About 3 to 5 tons of the metal in the bin is shoveled into the melting pot daily. Under
high temperature , with an electric agitator working and a flux added , the top resulting
is termed dross.
41 Pelenero testified that in general the work of Huebner was the same in his last month
of employment as during the previous year.
42 Contention in Respondent's brief that the Board is without jurisdiction in relation to
this charge of Huebner and the allegations of complaint regarding this failure to give pay
increase , I find is without merit. The pay increase apparently was withheld and denied
on July 7, 1952 , and the charge filed December 16, 1952, was broad enough in a statement
of an alleged Section 8 ( a) (1) and ( 3) violation . The action of denying such increase
was within the period of 6 months prior to the filing of the charge. I find the Board
clearly has jurisdiction.
NEWS PRINTING CO., INC. 1287
instructed him to resume his regular work. A few days later in another conversation
Huebner alleges Fisher told him that the shop complement did not call for four
machinists, and that it would be better for Huebner to look for a job elsewhere, as he
could not go any further here or receive any higher pay. In a subsequent conversa-
tion, shortly after the aforesaid, Huebner asked Fisher fora recommendation to a
paper in Florida, and Fisher testified he agreed to give it to him as a linotype
machinist helper.43 He never did receive it, although Fisher did furnish him a list
of newspapers.
On the day of his discharge, Huebner alleges Fisher took him to his desk, and
there told him he had a letter from the office regarding too many space bands and
matrixes going down the chute into the metal pot and that was the cause of his
termination. Fisher is also alleged to have stated that he was sorry he had to let
him go, but that they did not want anything to do with the Union in that place, and
if Huebner had approached him he could have secured a union card for him, which
of course he could not use on the News.44
Huebner alleges also that in bidding him goodby, Pelenero said, "I wish you lot
of luck. If you kept your nose clean this wouldn't have happened."
Huebner admits that the space bands and matrixes going down to the remelt room
would come primarily and almost wholly from the area he swept, containing 20
linotype machines.45 He also admits that Fisher had spoken to him on occasions
regarding the failure to pick out or spot and eliminate such space bands and matrixes
from his sweepings. He estimates that this occurred 3 or 4 times in 1951, and about
the same in 1952, with the last admonition regarding it being about 6 months before
his termination. Fisher testified that starting in July 1952, and every month there-
after, and in practically every week of each month, that he lectured about and re-
turned to Huebner bands and mats that had gone down the chute. He had also
shown Huebner some damaged ones lying on top of the dross. Fisher stated that
the man in charge of remelts began to turn over to him, in July 1952, the matrixes
and space bands found in the waste metal.
Crothers, who performed the shoveling of the metal and such remelting work
for the past 8 years, testified as a rebuttal witness called by the General Counsel.
He stated he had been finding lots of mats and bands in the chute material "all
along," and that there was no difference in the amount coming down in 1952 over
1951, and further that in comparison of findings regarding Huebner and his prede-
cessor that there "wasn't much of a difference" except as explained by greater pro-
'duction in the recent period. Any he found in 1952 he brought up to the boys
and gave to the mechanic. This procedure was based on a previous experience when
Fisher had found some on the window sill where Crothers had placed them, and
later Pelenero came down and told Crothers "never give those to Fisher because we
get the devil about it." He "never handed anyone any of those slugs directly again,
always left them with the boys" and "I never give it to him directly in the last 2
years." The boys had asked him not to give them to Mr. Fisher, and he did not want
to make trouble for the boys. He was not cross-examined on his testimony.
Fisher alleged he made almost daily inspections of the container of dross in the
remelt room after he had called attention of Huebner to the loss of bands and
matrixes, and that late in November he ordered a drum of dross when filled to be
taken to the fourth floor, dumped, and examined. Kievit, maintenance man for
10 years, explained the procedure of securing usually 2 filled and sealed up dross
drums from composing room and 3 from the stereotyping room, and weighing up
and shipping off for salvage metal values, usually about 5 times yearly. Pursuant
0 0 Huebner further testified to a conversation with Fisher about 3:30 p. in., on October
1, 1952, at the makeup department. Allegedly Fisher told him he heard there was going
to be a union meeting, and advised hun if he attended such meeting, "Your pay will be
waiting the following morning " Huebner also alleges an additional conversation with
Fisher in the men's room on an unspecified date in November 1952 when Fisher is stated
to have said, "I hear you are connected with Union activities," and "Well, I guess you
know if you are on the other side, I would not be able to help you out on recommendation
Also, "You wont get any more raises in future, no matter how long you work here "
44 Fisher denies any conversation with reference to the Union, but claims he showed him
mats and space bands found and additional mats from the remelt room taken that day.
Fisher thinks he probably did say he was sorry to let him go, knowing his financial
situation.
ac Some from linotype machines on the end of the row might have fallen on the floor
of the makeup department and been swept up and sent down by Crothers who cleaned
up in the area
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to instructions from Fisher given to him 2 or 3 days previously to "take a barrel
upstairs" and empty it, he did so in mid-December 1951, on a date he said was
"around December 13, 1952." 46 When advised by Kievit of his action, Fisher
came up, with Watson (mechanical superintendent) also present. About half of
the barrel was dumped, and all three present looked in the dumped dross contents
for mats and bands, which articles Fisher told him to look for when he came up
after Kievit had the drum opened and dumped.47 Fisher maintains this examina-
tion of the dross was made in late November or early in December 1952, and that
he did not discharge Huebner until shortly thereafter when he noted that Huebner
was continuing to permit the mats and bands to go down as before, as they were
found in the bin by the attendant (Crothers) who instead of shoveling them put
them on the shelf.
Fisher declares he had no knowledge of Huebner's membership in the Union
until Huebner told him of it when he was discharged and no prior collateral knowl-
edge of his having any union connection or activity.
After review of the involved situation presented, I credit the labored but I be-
lieve honest testimony of Huebner and do not accept the testimony of Fisher, both
for reasons previously discussed as to his general credibility, and because of the ad-
ditional factor herein of the destruction of many of his assertions in the credible
testimony of Crothers and Kievit. I find sufficient credible evidence to indicate
the Respondent did have knowledge of the union activity of Huebner and that such
was the underlying basis for the action of discharge and not the asserted reason
given of the finding of the apparently not unusual number of bands and mats in the
dross drum. I find the discharge of Huebner was discriminatory and in violation
of Section 8 (a) (3), such action tended to discourage membership jn a labor organ-
ization, and also was violative of Section 8 (a) (1) of the Act.
D. Interference, restraint, and coercion
By the following conduct Respondent interfered with, restrained, and coreced its
employees in the exercise of rights guaranteed by Section 7 and in violation of Sec-
tion 8 (a) (1) thereof: 48
1. In July 1952, Fisher asked employee John Cook if he "wanted to tell him
anything about my union activities," and further asked him if "he denied going to
a union meeting."
2. In late September 1952, Foreman Barnes said to employee Mamary, "I have
information you are messing with the Union" and "Well, are you?" and on or
about October 1, 1952, Barnes, after Fisher had spoken to him, said to Mamary,
"I understand you are attending a union meeting tonight." . . . "if you do, don't
even come in in the morning. You are through."
3. About October 1, 1952, Fisher asked employee Helen Bowman and others
at the proofreading desk "whether we were going to be there or whether we were
notified" of the proposed union meeting.
4. In November 1952, Fisher told employee Huebner "that if I wanted to become
a union member I would have to go elsewhere to work, because this shop would
never be union."
5. In the beginning of November 1952, Fisher told employee Carruih that "if
I wanted to become a union member I would have to go elsewhere to work be-
cause this shop would never be union"; and in further conversation on November
29, 1952, Fisher told Carruth that "shortly after that you will be transferred to
the night shift-the date I don't know at the time-we will let you know in advance.
You will receive no increase in pay and at some later date you will all be let
out by elimination of the second shift "
46 This procedure of selecting, dumping, and examining contents of drum had never been
done before A dross drum would represent accumulation of over 1 month and the half
drum emptied or examined about several weeks' accumulation
47 Six space bands, 5 of which were repaired, and 26 matrixes not repairable, were re-
covered. The value of such destroyed pieces would be appioxnuately $5
48 Other instances appear under other sections of this report The instances cited as
independent violations here (except re Cook) are limited to events occurring within the
6 months prior to the filing of the charge by that individual The testimony of the worker
named has been credited in each instance Some of the instances given encompass more
than one allegation of the complaint as stated. As the number of violations stated appears
to sustain the general allegation of the complaint relative to violations of Secion 8 (a) (1)
in various aspects , no attempt has been made to definitely rule upon each particular allega-
tion of such section of the complaint
NEWS PRINTING CO., INC. 1289
6. At 2 p . in., on a Saturday afternoon in the beginning of December 1952,
Fisher told employee Helen Bowman that she "was at a union meeting; I was
late" and named Carruth , Huebner , and the deaf and dumb boys as being there;
and told her also, "If you don't change your attitude , I will give you two weeks
to look for another job ; I will transfer you to the night side"; and further stated
to her, "You know, if you get a union in here you will be responsible for people
losing their jobs," and that "Mr. Haines would not tolerate a union in the News."
7. On October 1, 1952, Fisher stated to employee Meier in the ad alley, that
"he knows about who belongs to the Union , and that we are going to have a meet-
ing, that night , and Mr. Haines said that anyone who attends that meeting is finished
as of tomorrow . He will take his chances with the Labor Board."
8. In a conversation at the end of October 1952, Fisher told employee Meier
"to start looking for another job" and stated to him that "I have been doing nothing
but causing trouble in the News, and that he cannot fire me for union activities but
he can make things miserable for me."
9. In a conversation in early November 1952, Fisher told employee Mamary
(subsequent to statements Fisher made that he knew Mamary had a union card
and previously set out herein ), that "Well, you better start looking for another job."
10. Fisher in various conversations , and in those enumerated above in para-
graphs numbered 1 and 6, conveyed to the employees the impression of surveillance
by the Respondent of the union meetings 49
E. Miscellaneous alleged discriminatory violations of Section 8 (a) (3)
1. Failure to pay night shift bonus
It was the custom prior to beginning of World War II to pay employees working
on the so-called night shift a bonus differential of $3 extra per week. Both day
and night shifts each then worked 40 hours per week. The night shift was dis-
continued during the war years , but reinstated to operation about 1945 , with con-
tinued payment to the workers on it of the $3 per week night shift bonus and the
hours of work of the night shift employees then reduced to 371/2 per week, while
the day shift employees still worked 40 hours per week. It is conceded that the
$3 per week bonus was in effect and paid to those on , or going on the night shift
until January 1, 1952. The question here is whether any such bonus arrangement
was discontinued on or about such date , and whether the refusal to pay such bonus
to certain chargees herein when transferred from the day shift to the night shift late
in the year 1952, was discriminatory and based on their union activities . Fisher
testified that the management decided in late 1951 against the further payment of
the $3 night shift bonus,50 permitting those working then on the night shift to con-
tinue to receive payment of it, but in case of subsequent transfer to the day shift
their wage would revert to the day rate scale , 51 with any new employees or those
transferring to the night shift being told there was no longer any bonus or differ-
ential paid. It appears that until the transfer of certain of these chargees from the
day shift to the night shift, in November and December 1952, there were no other
such transfers in the earlier part of the year 1952 to demonstrate if there was any
such rule in effect or enforced
The basic testimony relied on by Respondent in relation to this question was given
by Fisher . He alleged he personally typed and posted the notice, which he posted at
the time clock and bulletin board, but he kept no copy of it . There was only one
posting of the one notice , and he stated variously it was posted up for days, a week or
so, and weeks . He admitted it was not up and posted in November -December 1952
when these chargees were transferred . He also admitted no announcement of the
promulgation of the new rule at the alleged time it was established was communicated
to the workers on the day shift , other than the alleged posting of the notice. He
testified definitely as recalling his telling of the rule change at the time it allegedly took
effect to McLeod, a worker on the night shift , and that he spoke regarding it to all
workers on the night shift, stating further he either spoke to them regarding it or
called their attention to the posted notice, or did both. McLeod , called as rebuttal
19 In view of the lack of any corroboration , I have not accepted the instance of seeing
Fisher on a Sunday afternoon in front of a theatre adjoining the hotel where the union
meeting was being held , as a specific instance of surveillance
10 He also stated the idea originated with him and lie had discussed it with Gross (office
manager ) some months before Gross was not questioned regarding it in his testimony.
61 Fisher indicated the arrangement would not apply to apprentices transferring back to
day shift who would retain the bonus
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness by General Counsel, testified that he never saw the alleged posted notice, and
that Fisher never called his attention to it or spoke to him regarding the notice or the
change proposed. Hutton, a chargee, who was also working on the night shift at
the time the bonus payment change was alleged to be made, denied that he had any
conversation with Fisher at the end of 1951 or early in 1952, relative to the night shift
bonus. Also, he stated that Fisher did not point out any posted notice to him and that
he did not see any such posted notice at any time. Fisher also testified that he had.
pointed out the notice to Solinger , on the occasion of his transfer from the day
shift to the night shift in November 1952. When shown this was impossible in view
of the time of transfer, and his own previous allegations regarding the length of time
the notice was posted, he admitted it was incorrect that he referred him to the notice
at that time, but took refuge in an answer that he called his attention to it but does
not recall how. Meier, a chargee, testified that about 6 to 8 months prior to
Christmas 1952, Fisher had offered him an opportunity to change over to the night
shift pointing out to him the additional outside employment opportunities he might
have, and also told him he would earn the $3 per week night shift bonus. This of
course would be at a time several months after the alleged establishment of the new
policy. It is noted also that no affirmative testimony of workers or supervisors was
offered by the Respondent to sustain the allegations of Fisher regarding this alleged
change, a strange anomaly considering that 76 employees in the composing room
were involved. The claim in Respondent's brief that the original complaint made
no mention of this allegation of failure to pay the night shift bonus, is without merit.
I credit the testimony of McLeod, Hutton, and Meier. I find that although the right
to do so would have been a managerial prerogative , no such change abolishing the
existing and long paid night shift bonus as alleged was actually made, effective Janu-
ary 1, 1952, or thereafter, and that the failure to pay such bonus to employees Meier,
Pavlick, Solinger, Carruth, and Bowman when transferred to the night shift work and
during the performance of it, was clearly discriminatory and based on knowledge (as
otherwise established herein) of their union activities and calculated to discourage
their membership in a labor organization, in violation of Section 8 (a) (3) of the Act.
2. Alleged discriminatory transfer of workers to punitive work or shifts, denials
of wage increases, and reduction of working hours and earnings
The allegations of the complaint regarding these claimed discriminatory actions
are necessarily separately stated. For purposes of consideration and discussion
they are grouped here, based on the viewpoint developed from the entire record,
that they must be looked upon in the aggregate, rather than as isolated instances, to
properly determine their position and effect in the completed mosaic. Like the oddly
shaped parts of a jigsaw puzzle, the incidents alleged in some respects appear petty
and insignificant , until all joined up in the completed whole.
Standing alone and apart from the general situation presented, the transfer in the
fall of 1952 of Meier to the flyboy work in the pressroom, although apparently an
unusual procedure at that stage of the training of an apprentice, would not appear
serious enough for the basing of a complaint. Ordinarily, apprentices at the very
outset of training receive an assignment to this flyboy job, a work not ordinarily
performed by a regular employee, but by special details to it. It is an uninteresting
job, under noisy conditions, involving just changing the position of each 50th com-
pleted newspaper in order of coming off the press, to aid the delivery workers in
making up their bundles. Meier had then been employed over 3 years, and had per-
formed a 6-month stint on such work in the early days of his employment and ap-
prentice training. Further assignment to it at such later date, combined with other
circumstances related in this report regarding him and other known union adherents,
makes the action take on a different aspect Similarly can be considered the trans-
fer of Carruth on or about December 1, 1952, to work on linotype machine No. 18,
a much older machine than the others in use in the shop, and poorly located in com-
parison with other machines. Even admitting that the work of Carruth on ad alley
composition may not have been entirely satisfactory to his immediate supervisor or
to Fisher and that assignment back to straight news composition work might have
had some desired effect, still the assignment to this particular machine, particularly
after the discussions Carruth had with Fisher regarding the Union and organizing
efforts, as previously stated in this report, could not avoid the appearance of a
punitive action 62
ii After viewing the entire plant , with representatives of the parties , I believe the allega-
tions and statements regarding this machine and location are somewhat exaggerated, but
nevertheless it must be accepted that among the employees, this particular assignment was
looked upon as akin to a "Siberia" punishment.
NEWS PRINTING CO., INC. 1291
The testimony of Stakessing, city editor for 20 years, stated a dissatisfaction with the
production results in 1952, allegedly not being able to get sufficient live news into the
paper on time, or not have published all that the editorial department wanted to put
into type and was able to furnish. A so-called night shift had been in use with
only 3 or 4 employees. It was decided to enlarge such shift, Fisher alleging that it was
understood that the editorial department would arrange their work so as to furnish
additional and sufficient news copy. Employees Pavlick and Solinger were trans-
ferred from the day shift to such night shift in the week ending November 22, 1952,
and employees Bowman, Carruth, and Meier in the week ending December 20, 1952.
Beginning in the week ending January 3, 1953, and running until February 23, 1953,
these transferred employees (and Hutton who had continuously worked on such
night shift) were regularly laid off for alleged lack of work,53 while the other
employees on such shift received approximately full-time work, as well as certain
apprentices (Kornblath and Hoss) who were also transferred to such night shift in
early February 1953. Under orders from the publisher, Fisher inaugurated a new
shift, the so-called lobster shift,54 on February 23, 1953, transferring to it the same
above-named employees, Hutton, Meier, Pavlick, Carruth, and Bowman.
The General Counsel and attorney for chargees have broadly charged that the
enlargement of the second shift and the creation of the lobster shift were punitive
measures, uneconomic, and not warranted on facts presented. I do not find such
charges in relation to the shifts as such warranted or sustained. They were meas-
ures and decisions properly within the control of management, to be pursued by such
even if apparently uneconomic to others. However herein, I find the major stated
purposes of the management were achieved, despite the fiasco of the enlarged sec-
ond shift. These purposes were to have more columns of live news copy currently
printed, and to get the paper on the street earlier. Each has been accomplished,
perhaps not to complete satisfaction or in accord with earlier estimates, but in part
sufficient to vindicate the steps undertaken to get the results aimed at. The following
chart showing the improvement effected with the inauguration and operation of the
third shift in late February 1953 in getting the paper on the street earlier is
illuminating:
Presstime 1
Before 12 p m . 12-12 05 a m After 111.05
January 1952-------------------------------------------- 7 10 9
January 1953-------------------------------------------- 9 11 6
February 1952 ------------------------------------------- 8 6 11
February 1953 ------------------------------------------ 14 5 5
March 1952 --------------------------------------------- 8 5 13
March-19M---------------------------------------------- 21 4 0
April 1952---------------------------------------------- i 6 13
April 1953----------------- ----------------- 17 7 2
Total---------------------------------------------- 30 61 27 27 46 13
i Presstime practically represents the time the paper is available to distribution employees and on the
street. Compiled from Respondent's Exhibits Nos. 48 and 49.
However, we are dealing with workers here and their allegations in relation to
the actions of Respondent as directed to and affecting them in connection with these
shifts and other incidental changes made in such time period. Looking at the ques-
tion of increases withheld, namely from Pavlick and Solinger in November 1952,
and from Meier, Bowman, and Hutton in January 1953, although Fisher gave vary-
ing reasons as the basis for each, nevertheless his testimony also indicates that the
action against giving any increase was decided upon by him, at the same time he de-
cided to transfer these same individuals (and only these individuals excluding Hut-
ton who was already on such night shift) to the augmented night shift. These
wage decisions therefore in each instance were determined in advance of the actual
transfer made, and in the cases of Meier and Bowman long in advance of being put
r>s Fisher alleges that the necessary additional copy promised by the editorial department
was not made available.
bi With regular hours of 11 : 30 p in. to 6 a. in. on 6 nights a week (except Saturday
night).
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into effect. The individuals being transferred to the night shift were ostensibly
being transferred there for the needed production required to be secured, and for
their ability to supply it. The reason advanced for denial of increases to Pavlick
and Solinger, was allegedly based upon a fall down in their production. Reliance
for proof was largely based on certain machine production records put in evidence.
These records are aptly named. They are accurate as to the individual machine
but not as to the individual working at such machine. Although they probably did
suffice and furnish to Fisher the overall picture as to how much news copy was
getting into the paper, I do not find I can accept them as reliable records as to the
relative amount of the production of an individual at varying times, without con-
siderable explanation and close inquiry as to the figures and as to conditions affect-
ing work at the particular times. Little was shown on such required additional
factors.55
Pavlick states in the times referred to he was doing as much work as possible in
learning to set ads. This activity would not be noted in such machine production
records but would clearly lower the total lineage produced at such times. Fisher
alleges both Pavlick and Solinger were transferred also to make room for returning
war veteran employees, but this has not been substantiated in the record, although
later several returning war veterans were produced as witnesses. The reason ad-
vanced by Fisher is also directly and seriously questioned and weakened by his as-
sertions relative to Pavlick's work performance in early 1952, requiring his writing
a note to him regarding it. The records for such period, however, even with their
limitations as indicated, show that in the time stated Pavlick was practically top
producer throughout and the assertions of Fisher in such regard are palpably false.
I cannot credit that wage increases denied to Pavlick and Solinger on November 10,
1952, were in fact based on alleged curtailment of production. In January 1953,
Meier, Bowman, and Hutton, working on the night shift were denied the usual in-
creases given to apprentices.56 They were the only apprentices not receiving an
increase at that time, and none had been denied to them heretofore. The reason
assigned by Fisher for the Bowman denial as to her being at the top of the scale for
her work, has been shown previously herein as being without foundation, in the tes-
timony of worker Smithing. There is nothing tangible presented to support the con-
tention of Fisher regarding Meier as not doing his work properly at that time, nor
do I regard, for reasons previously stated, the machine production records being
conclusive as referring to claimed work deterioration of Hutton, in lack of any cor-
roborative positive testimony being presented regarding his alleged loafing on work
and visiting in working hours. I am not convinced on the record presented that the
increases were denied to Meier, Bowman, and Hutton for the reasons alleged by
Fisher.57
In connection with the selection of workers for transfer to the night shift (in ad-
dition to Pavlick and Solinger previously covered), allegedly that of Bowman was
based on the need for a regular proofreader on such enlarged shift (it had none
before) and her availability based on having less home ties and responsibilities than
the other proofreaders employed. With Meier, allegedly it was an opportunity to
give him and to satisfy his wish to get more ad alley experience, and in Carruth's
case assertedly it was to get a closer check on his production.
ss The production figures of each individual are established based upon the copy (name
attached) he produced, under a long-standing method translating inches of copy into lines,
as in 71/2-point type copy usually 9 lines to the inch the number of inches of copy is multi-
plied by 10 to give the amount of lineage credit; 6 point type by 16 (12 lines of work to
inch) ; and agate type (51/) by 20 (ordinarily 14 lines to inch). These adjustments are
calculated to allow for making of simple corrections The method however does not make
any allowance for work delays, failure of copy to be always available, interrupted flow of
work, an amount of corrections not reaching in any instance what may be termed excessive
(for which extra credit can be secured), any work performed on ads, or in setting headlines
(other than small routine heads).
fie The record is replete with testimony from both Respondent 's and General Counsel's
witnesses, that at the time of hiring as apprentices the procedure of a regular increase
every 6 months was explained to them. It was assumed to be automatic, and no instances,
other than these employees, have been presented where it was not paid I accept however
that in a unilaterally operated apprentice system, the element of automaticity of increase
must be subject to and limited by the right of the employer to pass upon the fitness of a
worker to receive the increase or to be continued in service.
57 The recommendations of Fisher denying increases for these workers were made in
writing to Haines, publisher of the paper, December 10, 1952, about 2 weeks prior to
transfer of Meier and Bowman
NEWS PRINTING CO., INC. 1293
The augmented full night shift was working only about 1 week when the trans-
ferees plus Hutton were placed on short time, which continued until all were later
transferred on February 23, 1953, to the lobster shift. All were uniformly laid off
at the same time, about 7 p. m. each evening. The night foreman informed them
that there was no work.58
It is clear in the testimony that on all occasions when they were stopped from
working some amount of news copy was still available, and work being performed
was abruptly left standing in the machine. The reason advanced is that it was neces-
sary to leave a carryover for the day shift to start on before the editorial department
regular output of the next day was available. Fisher states the reason for the pro-
longed period of short time was the fall down by the editorial department to produce
the promised additional news copy. If so, it does not appear that in this period any
effectual steps to remedy the situation were vigorously pursued.
Some significant questions arise here. Why was Hutton, who had for several
years worked full time regularly on the night shift, projected into this prolonged
early quitting time procedure? Why was it imperative to have all laid off at the
same precise time and not even finish up work in process in the machines? Why
was Meier always included in the sending home of news copy machine operators,
when the claimed primary purpose of his transfer was to give experience on ad
composition work, even though his partial expected services on the correction bank
would not be utilized? 59 Why was it necessary or even good procedure to include
and send home the Proofreader Bowman at the same precise time, when apparently
the nature of her work would require some time lag in performance of it in com-
parison to others sent home? And, why when additional apprentices, Hoss and
Kornblatt, were transferred from the day shift to this night shift in early February
1953, and placed on news copy composition, at a time when these same other five
were working short time and being sent home early each night and continued to
suffer so for several weeks after their arrival,60 that such new employees on this
shift, Kornblatt and Hoss, were given full-time work, and there was apparently no
difficulty in securing sufficient news copy for such purpose, without any detriment
to the asserted reason of preserving the work for the following day shift?
Then came the inauguration of the lobster shift, a work period from around
midnight to 6 a. m., the time of which is not ordinarily sought, desired, or accept-
able to the majority of workers. In addition, it required work on 6 nights a week,
although both the day and night shifts were operated on a 5-day basis. (True, there
was a slight reduction in gross hours worked from 40 day, 371/2 at night to 36 on
this lobster shift, with pay for 40 hours). The same four employees transferred
previously to the night shift, plus Hutton who was joined with them in the short
work arrangement, were selected for and transferred to this lobster shift. Appar-
ently no other employees of the whole force of 76 were considered for it, certainly
none were nominated.61 At this time and stage of events, clearly Fisher was then,
at least, aware and could not deny that these particular persons were all definitely
union members and strong adherents.
The whole record, I find, shows that Fisher was keenly aware of the union organ-
ization campaign and infiltration of his organization, for many months prior to
this November 1952-February 1953 period. In his own way, he was conducting
a "cold war" with it. He had a right to protect the legitimate interests of the Re-
spondent, as long as in doing so he did not overstep and destroy or curtail in any
way the equally legitimate rights of the workers. I am convinced on the testimony
presented that in November 1952, he knew who were the active and perhaps only
union members in his employ, and that they did coincide with and embrace only
those who in this period were apparently the sole subjects of his official disapproval,
5B "I told them to go home. Is that what you are after" He never did so before. He
did so after speaking to Fisher and under instructions from him. Fisher is vague as to
what he told the foreman, whether he told him to send home the people he transferred
there, whether he mentioned names, or whether he told him to send home all news oper-
tors. He says he acted after foreman reported to him that there was no copy available.
se The shallowness of the reason that he would not have correction bank work available
is shown in testimony of Fisher, that his instructions to foreman were that Meier was to
be put on correction bank work, only when it was loaded
60 The contrary testimony of Foreman Williams is clearly incorrect.
61 Although the transferred workers did benefit from the change in securing full-time
work with regular earnings, apparently due to editorial department reorganization making
good on previous promise to furnish sufficient news copy, I do not credit that any altruistic
reason motivated the change.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and who were penalized in either pay rate, hours of work, transfers to less desirable
work and working shift hours, or all of these factors. The incidents of fortune and
chance are not also so precise as to accept the theory that all these actions resulted
purely as coincidence. I am also convinced that clear planning in the mind of a
shrewd Fisher effectuated these changes with a definite purpose in mind Certainly
he did isolate the union crusaders, where he would have a more definite assurance
of their removal from general contact with the major body of his workers and
incidental closer supervision of their movements and activities. It is not necessary
to resort in all cases to actual discharge of workers to demonstrate union animus.
From a realistic standpoint, it appears that all these moves in this period by the
Respondent clearly blend together and show that basically discrimination was
present and being practiced against these various employees, with no other validly
assignable reason other than their union membership or activities I so find in all
instances covered herein. By such acts, I find the "employer made the unfavorable
consequences of union adherence abundantly clear to his remaining employees." 62
These discriminatory actions were in violation of Section 8 (a) (3) and also of
8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
It having been found that Respondent discriminatorily discharged Norman
Kolanko, Edward Mamary, and William H. Huebner, it will be recommended that
Respondent offer each of them immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights
and privileges, and make each of them whole for any loss of pay he may have
suffered by reason of Respondent's discrimination against them by the payment to
each of a sum of money equal to that which he would normally have earned as
wages from the date of the discrimination against him to the date of offer of rein-
statement, less his net earnings during that period. All computation of back pay
shall be made in accordance with the rules and methods laid down by the Board
in Crossett Lumber Company, 8 NLRB 440, and F. W. Woolworth Company,
90 NLRB 289.
It having been found that Respondent discriminatorily denied to and withheld
payment of a regular night or second shift bonus from Peter Pavlick, Bernard V.
Solinger, Robert J. Meier, Harold T. Carruth, and Helen Bowman, it will be recom-
mended that Respondent make each of them whole for any loss of pay he may have
suffered by reason of the Respondent's discrimination against them by the payment
to each of them of the $3 night shift bonus for the period of the service of each
of them on such night shift from the date of beginning of such shift service to the
date of termination thereof as regards Solinger, and until February 21, 1953, for
each of the others.
It having been found that Respondent discriminatorily withheld from and denied
to Peter Pavlick and Bernard V. Solinger, an increase given to all other workers
at the same wage rate on or about November 10, 1953, it will be recommended
that the Respondent make each of them whole for any loss of pay he may have
suffered by reason of the Respondent's discrimination against them by the payment
to each of them of the $3 per week increase given to such other similarly paid
workers effective with the same date that the similar increase of November 1952
was given to the others receiving it.
It having been found that Respondent discriminatorily withheld from and denied
to Robert Meier, Helen Bowman, and Joseph A. Hutton, an increase given to other
apprentices on or about January 1, 1953, it will be recommended that the Respond-
ent make each of them whole for any-loss of pay he may have suffered by reason
of the Respondent's discrimination against them by the payment to Meier and
Hutton of the $5 per week increase given to other apprentice operators, and to
62 W. C. Nabors Company, 89 NLRB 538, 196 F . 2d 272 (C. A. 5).
EICHLEAY CORPORATION 1295
Bowman of the $3 per week given to proofreading employees in the higher wage
range.
It having been found that Respondent discriminatorily reduced the working hours
of the week on the night shift in the period of weeks ending January 3, 1953, to
February 21, 1953, thereby affecting the earnings of Peter Pavlick, Joseph A.
Hutton, Robert J. Meier, Harold T. Carruth, and Helen Bowman, it will be rec-
ommended that the Respondent make each of them whole for any loss of pay he
may have suffered by reason of the Respondent's discrimination against them in the
reduction of hours of work permitted, by crediting to each of them the difference
in hours between those actually worked and the normal workweek on the shift,
and by making payment to each of them for each of such credited hours at the
rates of pay as otherwise adjusted and ordered herein.63
Because of Respondent's unlawful conduct as heretofore found, and its under-
lying purpose, I am convinced that the unfair labor practices found are persuasively
related to the other unfair labor practices proscribed by the Act and that the danger
of their commission in the future is to be anticipated from the course of Respond-
ent's conduct in the past. The preventive purposes of the Act will be thwarted
unless the recommendations are coextensive with the threat. In order, therefore,
to make effective the interdependent guarantees of Section 7, to prevent a recur-
rence of unfair labor practices, and to minimize strife which burdens and obstructs
commerce, and thus to effectuate the policies of the Act, it will be recommended
that Respondent cease and desist from in any manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed by Section 7 of
the Act.
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. The News Publishing Co., Inc., Paterson, New Jersey, is and at all times
material herein, has been engaged in commerce within the meaning of Section 2
(6) and (7) of the Act.
2. Local 195, International Typographical Union, is a labor organization within
the meaning of Section 2 (5) of the Act.
3. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent did not violate Section 8 (a) (3) of the Act in failing to
give a wage increase to William H. Huebner in July 1952.
[Recommendations omitted from publication.]
63There is no allegation in the complaint relative to the lobster shift, except discrim-
ination in the transfer of the named employees thereto, and which discrimination has been
found as an affirmative fact. It was indicated at the hearing the transferred workers
were working full time on such shift. It is not within the province of the Trial Examiner
to attempt to extend the night shift bonus or to fix any wage rates for such later shift.
EICHLEAY CORPORATION and ,JOHN M. WINDOM
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS,
BLACKSMITHS, FORGERS & HELPERS, AFL; DISTRICT LODGE 57 AND
LOCAL 679, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON
SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS, AFL and JOHN
M. WINDOM. Cases Nos. 10-CA-1863 and 10-CB-175. December
10,1954
Decision and Order
On April 21, 1954, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that the
110 NLRB No. 213.