News Syndicate Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 14, 195195 N.L.R.B. 1098 (N.L.R.B. 1951) Copy Citation 1098 DECISIONS : _- OF' , NATIONAL LABOR RELATIONS BOARD -NEWS SYNDICATE Co., INC . and MILTON ASHKENASY .NEWS SYNDICATE Co., INC . and BERNARD CANNER , WILLIAM GILSON, ABRAHAM I. GORDON, GUSTAVE KARGER, JOHN E. KELLY, JOHN MCMAHAN, BENJAMIN SCHECHNER , EDWIN J. THORNTON , FILMORE G. WEBER, JAMES R. WINNERS , HENRY SADOWITZ AND NATHANIEL D. TENENBAUM NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY and MILTON ASHKENASY -, (NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY and BERNARD CANNER, WILLIAM GILSON, ABRAHAM I . GORDON, GUSTAVE KARGER, JOHN E . KELLY, JOHN MCMAIIAN, BENJAMIN SCHECHNER , EDWIN J. THORNTON , FILMORE G. WEBER , JAMES R. WINNERS , HENRY SADOWITZ AND NATHANIEL D. TENENBAUM. Cases Nos. 9-CA-995, . P2-CA-1132 , 2-CB-330, and 2-CB-373. August 14,1951 Decision and Order On April 25, 1951, Trial Examiner David London issued his Inter- nediate Report in the above-entitled proceeding, finding that the :Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as` set forth in the copy of the Intermediate Report attached hereto.' Thereafter the Respondent `Company; the Respondent Union, and the General Counsel filed ex- ceptions to the Intermediate Report. The Respondent Company and -the General Counsel also filed supporting briefs. The Board 2 has reviewed the rulings of the Trial Examiner made -at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter= 'mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, with the modifications noted below .3 The General Counsel contends that the "interim award" issued by - ' the Adjustment Board is illegal. For the reasons expressed by Trial' 1 An "Errata" Issued by Trial Examiner London on May 2 , 1951, is deemed part of his Intermediate Report. $ Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Reynolds]. As the record shows that a copy of, the original charge against each Respondent was served October 26 , 1949 , we.date the nfair labor practices herein from April 26, 1949, rather than from April 24, 1949, as did the Trial Examiner. ' 95 NLRB No. 143. - NEWS SYNDICATE CO., INC. 1099 Examiner Schneider in the Hearst Consolidated Publications, Inc., case and adopted by the Board ,4 we find no merit in this contention. The General Counsel also contends that the remedy should be ex- tended to encompass , in addition to those named in the complaint (as to whom the Trial Examiner found discrimination ), all other non- union men who "shaped" the News during the period in question. For the reasons expressed in the Hearst case , supra, and in Newspaper and Mail Deliverers ' Union of New York and Vicinity ( the Herald- Tribune case ) ,5 we reject this contention as without merit. In addi tion , we shall limit the Trial Examiner 's finding of discrimination to the employees as to whom the General Counsel established a case of discrimination , and shall exclude those who were not shown by the record to have been discriminatorily denied employment . Thus, our finding and order shall not extend to James R. Winners and Edwin J. Thornton. 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: 1. The Respondent, Newspaper and Mail Deliverers' Union of New York and Vicinity, its officers, agents, successors, and assigns, shall : A. Cease and desist from : (1) Causing or attempting to. cause the Respondent, News, Syn- dicate Co., Inc., its officers, agents, successors, or assigns, to discrimi- nate against employees or applicants for employment in violation of Section 8 (a) (3) of the Act. (2) Restraining or coercing employees of the Respondent News Syndicate Co., Inc., its successors or assigns, or applicants for employ- ment with the said Respondent, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights. may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized by Section 8 (a) (3) of the Act. B. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (1) Notify News Syndicate Co., Inc., that it has no objection to the hiring and employment of Milton Ashkenasy, Herbert Friedman, Aaron Harbus, Bernard Canner, William Gilson, Abraham I. Gordon, Gustave Karger, John.E. Kelly, John-McMahan, Benjamin Schechner; 1 93 NLRB No. 42. 5 93 NLRB 419. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Filmore G. Weber, Henry Sadowitz, Nathaniel D. Tenenbaum, or any other persons, without regard to their membership or nonmembership in either the Respondent Union or any other labor organization, and without prejudice to their seniority or -other rights, and privileges, except to the extent authorized by Section 8 (a) (3) of the Act. (2) Post at its business office and meeting-hall copies of the notice attached hereto as Appendix A.6 Copies of said notice, to be fur- nished by the Regional Director for the Second Region, shall, after being duly signed by a representative of the Union, be posted by it immediately upon receipt thereof and maintained by it for a period of at least .60 (sixty) consecutive days thereafter in conspicuous places, including all places where notices to members are, customarily posted. Reasonable steps shall betaken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (3) Mail to the Board's Regional Director for the Second Region signed copies of said notice for posting, the Respondent Company willing, at the latter's New York and Brooklyn plants, in places where notices to delivery department employees are customarily posted. (4) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps the Respondent Union has taken to comply herewith. II. The Respondents, News Syndicate Co., Inc., New York, New York, its officers, agents; successors, and assigns, shall: A. Cease and desist from : . (1) Encouraging membership in the Respondent, Newspaper and Mail Deliverers' Union of New York and Vicinity, or in any other labor organization of its employees, by giving preference for employ- ment to members thereof, or by in any other manner discriminating among its employees, or applicants for employment, in regard to their hire or tenure of employment or any term or condition of their em- ployment, except to the extent permitted by Section 8 (a) (3) of the Act. (2) Interrogating employees or applicants for employment con- cerning their union membership. (3) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the.rights guaranteed in Section 7 of the Act. B. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Upon application, offer employment, in available jobs in its delivery department which they are qualified to perform, to Milton 6In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order" the words "Decree of the United States Court of Appeals Enforcing." NEWS. SYNDICATE CO., INC. 1101 Ashkenasy, Herbert Friedman, Aaron Harbus, Bernard Canner, William Gilson, Abraham T. Gordon. Gustave Karger,.John E. Kelly, John McMahan, Benjamin Schechner, Filmore G. Weber, Henry Sadowitz, and Nathaniel D. Tenenbaum, without discrimination in regard to their hire or tenure of employment, or any term or condition -of employment because of their membership or nonmembership in the Respondent, Newspaper and Mail Deliverers' Union of New York and Vicinity, or in any other labor organization, and without prejudice to their seniority or other rights and privileges. (2) Notify the above-named complainants in writing that, upon -their application, it will offer them employment in available jobs in its delivery department on a nondiscriminatory basis. (3) Upon request, make available to the Board or its agents, for -examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other -records necessary to analyze the amounts of back pay due and the :right of employment under the terms of this Order. (4) Post at its plants at New York, New York, and Brooklyn, New York, copies of the notice attached hereto as Appendix B.7 Copies of such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Company's representa- -tive, be posted by the Company immediately upon receipt thereof and maintained by -it for sixty (60) consecutive days thereafter in con- -spicuous places, including all places where notices to delivery depart- ment employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not'altered, defaced, or covered by any other material. . (5) Notify the Regional Director for the Second Region in writing, -within ten (10) days from the date of this Order, what steps the Respondent Company has taken to comply herewith. III. The Respondents, Newspaper and Mail Deliverers' Union of New York. and Vicinity, News Syndicate Co., Inc., and their officers, agents, successors, and assigns, shall jointly and severally make whole Milton Ashkenasy, Herbert Friedman, Aaron Harbus, Bernard Canner,. William Gilson, Abraham I. Gordon, Gustave Karger, John E. Kelly, John McMahan, Benjamin Schechner, Filmore G. Weber, Henry Sadowitz, and Nathaniel D. Tenenbaum, for any loss of pay they may have suffered as a result of the discrimination against them, in the manner prescribed in the section entitled "The Remedy" in the Intermediate Report. 4 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order " the words "Decree of the United States Court of Appeals Enforcing." 1102 DECISIONS 01 ' NATIONAL'.,LABOR' RELATIONS BOARD - Appendix-A '. NOTICE TO ALL MEMBERS OF NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY AND TO ALL EMPLOYEES OF NEWS SYNDI- CATE Co., INC. Pursuant to a Decision and Order 'of the National Labor .Relations Board, and in order to effectuate the policies of the National Labor. Re- lations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause NEWS SYNDICATE Co.,. INC. (DAILY NEWS AND SUNDAY. NEWS), its officers, agents, suc- cessors, or assigns, to discriminate against its employees or appli- cants for employment in regard to their hire or tenure of employ- ment or any term or condition of employment, in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees. of NEWS SYNDICATE. Co., INC. (DAILY NEWS AND SUNDAY NEWS), its successors or as- signs, or applicants for employment with the said company, in the exercise of their right to self-organization, to form, join,. or assist labor organizations, to bargain collectively through rep- resentatives of their'own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activ- ities, as guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agreement, requiring mem- bership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL make whole Milton Ashkenasy, Herbert. Friedman,. Aaron Harbus, Bernard Canner, William Gilson, Abraham I. Gordon, Gustave Karger, John E., Kelly, John McMahan,-Benja- min Schechner, Filmore G. Weber, Henry Sadowitz, and Na- thaniel D. Tenenbaum, for any loss of pay suffered as a result of the discrimination against them. . We have no objection to the employment of the above-mentioned individuals, without discrimination because of their nonmembership in the union, and without prejudice to their seniority or other rights and privileges, or to the employment of other individuals on a nondis- criminatory basis. We have given NEWS SYNDICATE Co., INC., notice to this effect. NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY, Employer..., By ----------------------------------------- (Representative) (Title) Dated------------------- NEWS SYNDICATE. CO., INC. ] 103 This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. Appendix B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order'-of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT encourage membership in NEWSPAPER AND MAIL _DELIVERERS' UNION OF NEW YORK AND VICINITY, or any. other labor organization of our employees, by giving preference for employment or in any other manner discriminating against our employees or applicants for employment in regard to their hire or tenure of employment or any term or condition of employment in our delivery department, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT. interrogate our employees or applicants for em- ployment-concerning their union membership. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL, upon, application, offer employment, in available jobs in the delivery department which they are qualified to per- form, to Milton Ashkenasy, Herbert Friedman, Aaron Harbus, Bernard Canner, William Gilson, Abraham I. Gordon, Gustave Karger, John E. Kelly, John McMahan, Benjamin Schechner, Filmore G. Weber, Henry Sadowitz, and Nathaniel D. Tenen- baum, without discrimination in regard to their hire or tenure of employment or other term or condition of employment because of their membership or nonmembership in NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND. VICINITY, or in any other labor organization, and without prejudice to their seniority or other rights and privileges. We WILL notify the above-named individuals in writing that, upon their application, we will offer them such employment on a nondiscriminatory basis. WE WILL also make whole the above-mentioned individuals for any loss of pay suffered as a result of the discrimination against theln.. NEWS SYNDICATE CO., INC., Employer. By ------------------- ----------- (Representative ) ( Title) Dated -------------------- 1104 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material.. . Intermediate Report STATEMENT OF THE CASE Between October 24, 1949, and January 13 , 1950 , charges of unfair labor prac- tices were filed by the individuals named in the caption against Newspaper and .Mail Deliverers ' Union of New York and Vicinity , the Respondent Union, and News Syndicate Co., Inc., the Respondent Company . Upon these charges, the General Counsel of the National Labor Relations Board caused the cases to be consolidated, and his complaint to be issued against the Respondent Union and the Respondent Company on August 25 , 1950 , alleging violations by the Union of Section 8 (b) (2) and 8 (b) (1) (A), and by the Respondent Company of Section 8 (a) (3) and 8 (a) (1) of the National Labor Relations Act, 61 Stat. 136. Copies of the complaint , the charges , the order of consolidation , and notice of hearing of said complaint , were duly served upon both Respondents , and all the complainants. The consolidated complaint , as amended . at the hearing, alleged that since on or about April 24, 1949 , the Respondent Union has caused , and/or attempted to cause, Respondent Company to discriminate against its employees and prospective employees in regard to hire, tenure . of employment, and other terms or conditions of employment , by forcing and requiring , and/or attempting to force and require, Respondent Company to give preference , in its delivery department , to members of Respondent Union over nonmembers thereof . The complaint further alleged that the Respondent Company since on or about April 24 , 1949 , gave preference, and continues to give preference, to members of Respondent Union with regard to hire , tenure , and terms or other conditions of employment in its delivery de- partment over persons who were not and are not now members of the Respondent Union for the reason that said persons were not members of said Union.' Both Respondents filed answers to the complaint denying the commission of any unfair labor practices. Upon due notice, a hearing was held at New York, New York , on various dates between October 31, 1950 , and January 23, 1951 , before the undersigned Trial Examiner . The General Counsel , both Respondents , and some of the complain- ants as indicated beneath the caption , were represented by counsel , and partici- pated in the hearing . Full opportunity to be heard , to examine and cross -examine witnesses and to introduce evidence bearing on the issues was afforded all parties. Respondents ' motions to dismiss the complaint , made during the course of the hearing, are disposed of in accordance with the findings that follow' At the conclusions of the hearing , the parties were afforded opportunity to argue the issues orally and to file.briefs . with the Trial Examiner . Oral argument was presented by the General Counsel and the attorney for the Respondent Company. A brief has been received from the General Counsel and has been duly considered. Upon the entire record in the case and from my observation of the witnesses, I make the following- ' Specifically named as the objects of alleged discrimination were Milton Ashkenasy, Herbert Friedman , Aaron Harbus , Bernard Canner , William Gilson , Abraham I. Gordon. Gustave Karger , John E . Kelly, John McMahan , Benjamin Schechner, Edwin J . Thornton, Filmore G. Weber, James R. Winners, Henry Sadowitz, and Nathaniel D. Tenenbaum. '-All of General Counsel 's Exhibits 14, 15, 28 , 29, and 31 , on which rulings were reserved at the hearing, are received in evidence. NEWS SYNDICATE CO., INC. - 1105 FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY News Syndicate Co., Inc., is, and has been since 1919 , a corporation duly organ- ized and existing by virtue of the'laws of the State of New York . At all times herein relevant ,- it has maintained its principal office and place of business at 220 East 42nd Street, New York, New York , hereinafter called the New York plant , and a place of business at 700 Pacific Street, Brooklyn , New York , and has been continuously engaged at said plants in the printing , publication , sale, and distribution of the newspapers known as Daily News and Sunday News. During 'the year ending December 31, 1949, Respondent Company caused to be purchased and delivered to its New York plant, newsprint , ink, zinc, and other materials valued in excess of $1,000,000 , of which approximately 90 percent was transported to.said New York plant in interstate and foreign commerce from States of. the United States other than the State of New York , and from foreign countries. Respondent Company utilized, and continues to utilize , national and interna- tional news services , features , and photographic services which make use of interstate commerce and communication . During the same period , Respondent Company published , and continues to publish , in its publications , advertising at a rate in excess of $1,000 ,000 per annum , a substantial portion of which consists of national advertising . Respondent . Company during said period published, sold, and distributed daily in excess of 2,000 ,000 copies of the Daily News, approxi- mately 16 percent of which was, and continues to be, sold and distributed outside the State of New York and has published, sold , and distributed on Sundays in excess of 4,000 ,000 copies of the Sunday News, approximately 50 percent of which was, and continues to be , sold and distributed outside of the State of New York. Sales of its publications were, and continue to be, at a rate in excess of $1,000,- 000 per annum. By reason of the foregoing facts, I find that News Syndicate Co., Inc., is engaged in interstate commerce. II. THE LABOR ORGANIZATION INVOLVED Newspaper and Mail Deliverers ' Union of New York and Vicinity is a. labor organization within the meaning of Section 2 (5) of the Act. . III. THE UNFAIR LABOR PRACTICES A. Background As is apparent from the preceding statement of the case , this proceeding arose out of the hiring practices indulged in by the Respondent Company, hereinafter referred to as the,News, for manning its delivery department, and the activities of the Union in connection therewith. During all times relevant herein, and for many years prior thereto , the leading newspapers of Metropolitan New York were associated as, and represented by, the Publishers ' Association of New York for the purposes of collective bar- gaining with the employees of said publishers . In addition to the News, the Association included , among others , the New York Times, the Herald-Tribune, the Journal -American, the Mirror, the World -Telegram , the Post, and , until its merger with the World-Telegram in January 1950, the Sun' a After the hearing In the instant proceeding closed, the Board rendered its decision in Newspaper and Mail Deliverers' Union of New York and Vicinity, Hearst Consolidated Publication Inc. et ale, 93 NLRB 237, and Newspaper Mail Deliverers' Union of New York and Vicinity, Joseph Rizzo, et al., 93 NLRB 419. The Union in the instant proceeding, was a Respondent in both cases. Both involved the illegality of hiring practices imposed, 1106 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD In 1948, and for a long time prior thereto, many of the employees in the delivery departments.of 'the, various metropolitan papers were organized as the Respondent Newspaper and Mail Deliverers' Union of New York and Vicinity, an unaffiliated labor organization, hereinafter referred to as the Union. The function of the delivery department in these publications is to handle newspapers coming from the presses and to convey them afoot or by truck, to various delivery points, from which they are either directly, or ultimately, dis- tributed to readers. Partially because, the size of, and demand for, newspapers is not constant and stable, the,manpower needs in the delivery departments of 'the publishers vary from time to time. A reservoir of labor to fill these peak and temporary demands. is therefore necessary. At the same time, there is a. minimal. expectancy of employment every day. This results in a number of regular jobs, known as "regular situations," assigned permanently to certain individuals on a 5-day week basis. In addition to regular situation holders, there are two other categories of delivery department employees: regular sub- stitutes and extras. Regular substitutes are employees who have completed A "5 x 5"; that is, have worked in a particular shop 5 days a week for 5 consecutive weeks, thereby acquiring. certain promotional, hiring, and other prerogatives. Those who are not regular situation holders, or regular sub- stitutes, are known as extras. Regular substitutes and extras constitute the extra labor force from which, on a day-to-day basis, they are assigned to whatever jobs may be available. They are hired from what is known, in the trade as a "shape-up." At appropriate hiring periods during the evening, they present themselves at the plant and sign the "shape," following which, the supervisors make selections from among them. The News generally- had two shapes, one at about 7 p. in., another at about 11 p. in.; on week ends the number of shapes was increased to three. For a number of years the Union has-bad collective bargaining contracts with the metropolitan newspapers, including the News, on a multiple-employer basis; the Publishers' Association acting as the bargaining agent of the contracting publishers. The latest of those contracts was executed on October 25, 1948, effective to October 24, 1950. It was preceded by a contract effective July. 17, 1945, which expired on July 16, 1948. Under the 1945 contract, and for some years prior thereto, the Union agreed to furnish competent workmen at regular rates in sufficient number as the publishers required. In the event the Union failed to furnish such men promptly, the publishers were authorized to employ such men as they were able to obtain, provided.that : and sought to be Imposed, by the Union, which practices were similar, If not Identical, to those Involved herein, the first at the Journal-American, the second at the Herald-Tribune. Indeed, in the instant hearing, the parties stipulated into this record approximately 1,100 pages of testimony in the Journal-American and Herald-Tribune proceedings. This evi- deuce deals, in substantial part, with the negotiations carried on by the Publishers' Asso- ciation and the Union for the negotiation of a new contract to follow the expiry of a closed-shop agreement between the parties on July 16, 1948, the further negotiations between the same parties having for their purpose the interpretation of the subsequently executed contract covering the period October 25, 1948, to October 24, 1950, and the con- duct of the Union following the execution of said last mentioned contract. Trial Examiner Charles Schneider heard -both the Journal-American and Herald-Tribune cases and made extensive findings of fact iil both relating to the above subjects. Insofar as. these findings. Pertain to the afore-mentioned subjects, they were adopted by the Board in the reported cases just cited. Having given Independent consideration to this incorporated testimony insofar as It Is competent and relevant to the instant proceeding, and being In agreement with the excellent analysis thereof made by Trial Examiner Schneider and his findings with reference thereto, I have taken the liberty of making extensive use of the language. contained in his findings. NEWS SYNDICATE CO., INC. 1107 if the men so employed are not members of the Union they shall be em- ployed only so long as the Union does not furnish members of the Union willing and qualified to take their places ; but any man so employed shall ,be allowed to complete his day's work. Nothing herein contained is to be construed 'as conferring of power upon any Publisher to fill a regular situa- tion with anyone not a member of the Union.. Seniority with the particular employer was, contractually, and in practice, the basis for promotional and hiring priority. Due to the Union's inability to supply adequate manpower, a. number of nonunion men found it possible over a period of years to secure fairly regular employment from the shapeup. The' provisions of the contracts, however, pre- cluded them from acquiring any seniority, subjected them to displacement at any time by union men, however recent the latter's appearance on the scene, and denied them any right to hold a regular situation. Substantial distinctions in employee tenure and status was therefore based purely on the fact of union membership or nonmembership. No contention is made, however, that this arrangement was in any respect illegal prior to July 17, 1948. At the same time, union membership was difficult to acquire ; generally passing only by descent and being largely entailed. For some years the membership list has been frozen and substantially only. sons of members and employees in newly organized shops are eligible to fill any vacancies. The provisions of the 1945 contract were presumptively legal under the Wagner Act of 1935; at least no contention is made here that they were illegal. Though the Labor-Management Relations Act of 1947, effective August 22, 1947, curtailed continuance of the requirement for hiring preference based on union membership, Section 102 of the latter statute preserved, for the duration of the contract, the legality of existing contractual arrangements valid under Section 8 (3) of 'the Wagner Act. Presumably, the 1945 contract due to expire July 16, 1948,. was. saved by this provision. In any event it is not contended here that preference accorded to union members was in any way illegal prior to July 17, 1948. But it is plain that any such preference accorded after the latter date, other than that inherent in the legitimate application of a "union shop" clause, would be in. violation of the statute; and here the facts do not disclose that such a clause was the basis for, or is a defense to, any action taken by either Respondent .4 Briefly, the issue here is whether the Union caused, and the Company accorded, illegal preference to union men after April 24, 1949, the critical period alleged .in the complaint. B. The 1948 contract The 1945 contract expired on July 16, 1948. Negotiations between the Union and the Association for a renewal began several months prior to that date. However, except for an agreement reached between the negotiators sometime in July which was rejected by the union membership, the negotiations were unsuccessful until October 25, 1948, when a new 2-year contract was signed. During the period between July 17 and October 25, 1948, the publishers, in- 'eluding the News, continued to maintain the old hiring practices, namely, absolute preferment of union men, without change. 4 The 1948 contract, referred to hereinafter , . provided that employees should become members of the Union 30 days after employment.. The execution of such a clause was authorized by the employees as required ' by the Act. These facts, however , are not of critical significance on the instant issue. 961974-52-vol. 95-71 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 4 of the new contract provided, in part, as follows : SENIORITY 4-A. As of the effective date hereof, all employ ees, including foremen and assistant foremen, holding regular situations with each newspaper signatory hereto shall be arranged in. a seniority- and priority list in accordance with their length of service with such newspaper. In like manner, all regular substitutes connected with each particular newspaper shall be listed in the order of their length of employment. All other persons seeking employment with the paper shall be classified as extras and shall be listed as such in order of original employment. No man's name shall remain on the list of extras, however, if five weeks have elapsed since the date of his last employment. When the manpower needs of the office cannot be filled from regular em- ployees, from available substitutes, or from extras entitled by former em- ployment to perform the work the foreman shall select necessary men from the following categories in order, providing such men are familiar with the work of the available opening : First : Former regular situation holders. Second : Other persons who have worked in the delivery department. Third : Persons with experience in other delivery departments in the Metropolitan area. Fourth : Persons concerning whose competency the foreman has no reason to doubt, but this discretion by the foreman shall not be exercised as a means of discriminating against any person because of his membership or non-membership in the Union. Following paragraphs of section 4 provided for the filling of regular situations on the basis of seniority from among, first, regular situation holders, and second, substitutes ; and for layoffs among regular situation holders in reverse order of seniority standing. Though this section does not explicitly state that substitutes and extras were to be hired from the shape in the order of their standing on the seniority lists, this was the contemplation of the section and the parties, and it was so construed. C. The negotiations for the 1948 contract During the early part of the negotiations, the union representatives took the position that hiring priority among substitutes and extras should be on the basis of seniority in the industry, rather than on a plant basis, and that the publishers should notify the Union of any manpower needs. These provisions were not, however, adopted. The Union likewise wished the contract worded in. such fashion as to insure preference to union members wherever possible. As to this, the Publishers' Association took the position that hiring practices had to conform to the Taft-Hartley Act, but that the Association was willing to accord the Union every permissible benefit under the Act. The prior contract had consistently referred to "union members" in defining its application. The substitution of the word "employees" for "union members" in the 1948 contract, at the instance of the Association, caused concern to the union representatives. As the negotiations progressed and the limitations im- posed by the law became clearer, the position of the Union's negotiators with respect to preferment of union men, at first strongly stated, moderated, with the result that by mid-July 1948, the negotiating representatives came to agreement on the terms of the contract. When the agreement was submited to the union NEWS SYNDICATE CO., INC. - 1109 executive board and the membership, however, it was rejected. The evident and substantial reason for the rejection was the shift in emphasis and rights- inherent in the substitution of the word "employees" for the words "union members" in the beneficial sections. of the contract. In sum, the objection was to any substantial reduction of the exclusive preference previously accorded union members. In addition, the Union insisted on the right to discipline fore- men, a demand which the Association resisted. Further negotiating sessions were begun late in July 1948, this time with the Union's executive council in attendance, who brought in Professor Milton Handler for advice. Handler assured the apparently suspicious executive council that there was no "shenani- gan" and that the agreement was "a good contract and the best one they could hope to get under the Taft-Hartley Act."' Nevertheless, negotiations continued and it was not until October that the contract was finally ratified by the Union. D. The publishers' attempts to establish seniority lists As has been noted, section 4-A of the 1948 contract contemplated the estab- lishment of hiring lists of extra men "in order of original employment" by the particular publisher, with provision for dropping the name of anyone who had not received employment during the past 5 weeks. It is thus seen that the 1948; contract, as had the prior ones, despite the industry-wide bargaining pattern;, incorporated a system of seniority by shop, and not industry, employment:. Moreover, seniority and precedence on the lists was to be determined, according- to the contract, by the date of "employment." The materiality of these factors; will be apparent from later discussion. On October 26, 1948, therefore, the Association and the Union met to discuss; the compilation of the hiring lists. The categories of regular situation holders and regular substitutes appeared to present no substantial problem. Difficul- ties arose, however, regarding the composition of the extra list. Since the con- tract provided that nonemployment over a 5-week period resulted in. elimination from the list, the Association suggested, and there was apparent agreement at the October 26 meeting, that the initial list should contain the names of all, persons who had worked in the 5-week period preceding October 25, 1948, the effective date of the contract. On the fdllowing day, however, basic disagreement arose which ultimately led to the issuance of the present complaint and the unsettlement, to the time of the hearing, of hiring conditions in the delivery departments of all the major New York newspapers. On that day, October 27, 1948, the Union notified the Association that it disapproved the method of extra listing determined upon at the October 26 meeting. The reason for this disapproval was that the con- templated listing "would result in the inclusion on the extra list of a significant number of nonunion men." 1. October 29, 1948-the refusal to work at the Herald-Tribune', Within a day or two after the execution of the October 1948 contract, the Herald-Tribune posted hiring lists in accordance with section 4-A of the con- tract. On Wednesday, October 27, 1948, Leon Braunstein, a union business agent, objected to the presence of a number of nonunion men on these lists- Braunstein further said that nonunion' men could have no seniority rights- antedating July 17, 1948. In addition, Braunstein asked that several recently hired union members be given positions on the extra list higher than their 5 The quotations are from the testimony of William Mapel , vice chairman of the Pubs- lishers' Association. 1110 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority entitled them. Braunstein further said that the Tribune was the only paper which had proceeded to post lists, that the Tribune's work force was "disturbed over the introduction of the lists," and that he "could not be around the Tribune all night every night to calm the men down." Braunstein concluded with the statement that "somebody was going to sue" the Tribune and that the Tribune "to keep everything in the family . . . might as well avoid being sued by union men." Nothing more untoward occurred at the Herald-Tribune on that or the follow. ing night. Friday and Saturday are the heavy nights at the Tribune, in prep- aration for the Sunday edition. On Friday night, October 29, 1948, eight regular week-end shapers, all union men, refused to go to work when called from the shape line, thus delaying operations. The reason for the refusal was that non- union men were higher on the hiring lists than they. Spokesman for the men was Frank Cancillero, chapel chairman a The Herald-Tribune finally resolved the dilemma by withdrawing the hiring lists. for "further study," and hiring was then resumed on the old basis of union preference. During the discussion, It was indicated that unless .the lists were withdrawn, the eight men would also refuse to work on Saturday night. No other newspaper attempted to follow the Tribune's example and post hiring lists. On the following Monday, protracted negotiations began between the Publishers' Association and the Union to solve the problem.' 2. The November 1,1948, meeting A meeting was held on November 1, at which the union attorney, Samuel Duker, suggested that a proper interpretation of the contract required the listing on the original extra list, in the order of original employment, of all persons who had ever worked in the delivery departments of the publishers ; and that all who did not work in the 5-week period from October 25, 1948, should then be elimi- nated. This suggestion became known as the "Duker formula" and the "Back to Methuselah" theory. The Union's position on this suggestion was thus stated by Vice-Chairman Mapel of the Publishers' Association in his testimony: [The] point being, and not being concealed, that it would be a very simple thing to have a list of employees made up or created to include a great many men, a great many union men who perhaps had worked only one, or maybe only a dozen times, or maybe a number of years, but many, many years ago, it being the position of the Union that by taking advantage of the language of the contract in that respect, and by listing men according to the date of their original employment, obviously you would get a great mass of union men at the top of the list and any nonunion men, who might have worked and who might have crept into the so-called industry in the last few years would be well down on the list, since the hiring would be done from the top of the list to the bottom, then and I quote [the Union] : "The problem of the nonunion man would be solved." The compilation of such a list going back many years presented a formidable problem. The position of the Union at this November 1 meeting, as related by Mapel, was that "we are going to take every step we can to. have union men go in ahead of nonunion men." n The equivalent of shop steward. s The findings as to the events at the Herald -Tribune are based on the testimony of John Bogart , labor relations executive at the Tribune. NEWS SYNDICATE CO., INC. 1111 3. November 2, 1948 At another meeting on the following day, it was ascertained that the effect on union men of the proposed new hiring order was greater than had at first been supposed. Thus, it was now realized that outside card men who regularly shaped for employment on certain nights were subject to "bumping" by nonunion men of senior shop standing. This situation caused some concern to the Tribune, for example, which was apprehensive that it might lose some regular Saturday night-extra shapers. In addition it was also realized that some nonunion men were sufficiently senior to compete for regular situations. It was the extra list, however, which provided the major problem. The publishers suggested a system of daily hiring lists based substantially on regularity of employment on each particular day, but this got nowhere when it became apparent that such a system would also include a significant number of nonunion men. At this point, Polle- grino, union business agent, stated the Union's position to be that no nonunion men could go to work before union men under the contract, for the reason that nonunion men had no seniority antedating the expiration date of the prior con- tract. To this the publishers demurred, concurrently suggesting that Professor Paul P. Hays, impartial chairman under the contract, be called in informally. A meeting, with Chairman Hays present, was arranged for November 15,1948. 4. November 15, 1948 At the meeting on this day, the suggestion was made, either by Chairman Hays, or by Samuel Duker, union counsel, that industry-wide rather than plant seniority might be a proper criterion for hiring priority, but apparently the proposal was not seriously discussed. Further suggestions, designed to meet union objections, were made with respect to the compilation of daily hiring lists, but the Union declined to take a definite position without further exploration. As Mapel quoted the Union, its representatives said, "we are not interested in this thing as an academic matter. We want to know what will happen to our men. We want to see these lists." As a result the• Herald-Tribune was desig- nated to compile a trial list based on its records in order that the conferees might have something concrete to visualize. 5. November 17, 1948 At a meeting on November 17 the Tribune presented the test list, on which the- nonunion men were identified. The Union objected to the list because of the presence of high ranking nonunion men and reiterated its position that they could have no seniority antedating July 17, 1948. After study, the Union further an- nounced that it could not commit itself until a similar test list was made up at the Daily News, the largest employer of union men. The publishers objected to any further delay, pointing out that unfair labor practice charges had been filed by nonunion men against the Tribune. After some further discussion, Publishers' Association Vice-Chairman Mapel said that he was going to lay the entire matter before Charles Douds, the Board's Regional Director, and invited the union representatives to join him in so doing. On November 19, 1948, union and publisher representatives met with regional office officials. 6. January 1949; the Union changes its leadership; the entrance of the Adjustment Board In late November, or early December 1948, union officers were elected. The incurpbents were largely swept out of office. The new officers, however, could not act until January 1 , 1949 . As a result , no meetings were held in December. 1112 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD .In the interim, the publishers, as Mapel put it, merely "rocked along." With the induction of the new officers on January 1, 1949, the Union's position became more militant. Among the new union officers were Joseph Simons , president, and William Walsh and Harry Waltzer, business agents. On January 14, 1949, the publishers, including Ivan Annenberg, circulation director of the News, and the, new union officers met for the first time, with Chairman Hays present. The Union announced that all the plans previously proposed were unworkable, but when asked for suggestions, stated that it had none to offer. At this meeting, however, it became evident that the Union had determined to make a firm stand for the preferment of union men. Union President Simons made the following statements, not necessarily consecutively, to the publishers : "The Taft-Hartley Act, in my humble opinion, does not apply whatsoever . . . Until the law is interpreted, nobody knows ; if you need extras the Union will supply them ... I serve notice in the meantime, union men are going to work before nonunion men ... you have got to pay somebody, no you might as well pay union men . . . I am not interested in seniority. This contract was made for members of this union ... If nonunion men have a quarrel, let them go to the government ... you do the hiring. You do the violating if there is any violating." The contract provided machinery, known as the Adjustment Board, for the determination of disputes not resolvable by negotiation. The board consisted of two representatives of each party. If the dispute was not resolved there, the impartial chairman was added. Decisions of the five-man board were final and binding. At the January 14, 1949, meeting, publisher's Vice-Chairman. Mapel invited the Union to join in submitting the dispute to the Adjustment Board. Not receiving an affirmative answer , the publishers invoked the adjustment machinery unilaterally. Several Adjustment Board meetings were held in the latter part of Janu- ary 1949, along with a conference with officials of the Board's Regional Office. During these sessions , union representatives told the publishers several times, in substance, that unless union men were hired, the papers were "not going to be delivered." At the insistence of the Union, the publishers supplied the Union with lists of regular situation holders, regular substitutes, and of all extras who had worked in the 5-week period from mid-December 1948 to late January 1949 ; with the nonunion men so designated. Nevertheless, when the .parties met again in late February, the union representative indicated that they had not studied the lists much, if at all. At this meeting the Union made a number of proposals , including one to the effect that the publishers secure all manpower through the Union. Meetings continued through the month of March in an effort to arrive at a mutually satisfactory hiring procedure, without success. Finally, in mid-March, apparently convinced that there was no prospect of bilateral solution, the publishers decided to set up hiring lists unilaterally, listing-employees on the basis of seniority without regard to union affiliation, and to put them into operation. 7. The May 1949 strikes The compilation of these shop seniority lists was completed by May 11, 1949, and on May 16, they were posted in the various newspapers. In several shops, notably the News, the Journal-American, and the Herald-Tribune, they were removed ; at the Herald-Tribune, admittedly by Business Agent Walsh. On May 17, 1949, the publishers began to hire according to the lists. This action evoked strikes and threats of strikes, by union officials at various papers. NEWS SYNDICATE CO., INC. 1113 Business Agent Walsh made repeated threats of strikes at the Herald-Tribune if that paper attempted to hire from the lists, saying that he would "close down the plant," and on May 19 the Union there engaged in a slowdown. On the same day the Union struck the Journal-American to compel the hiring of union men before nonunion, without regard to their standing on the hiring lists. This stoppage lasted some 12 minutes and was terminated when the Journal- American capitulated and put to work six union members of junior seniority whom Union President Simons demanded be hired. At the request of the publishers, impartial Chairman Hays had been standing by since the night of May Y8 to meet anticipated trouble. On May 19 the publish- ers invoked the five-man Adjustment Board. After discussion of the situation, a majority of that Board (Chairman Hays, Union President Simons, and Business Agent Walzer) decided, in substance, to reinterpret section 4-A of the contract . Chairman Hays announced the decision to the parties , saying that the board would issue a new and temporary hiring formula on May 23, but added that until it was prepared, the existing hiring lists would continue to be effective. The announcement that the lists would remain in effect in the interim period evoked a storm of protest from the union representatives , who declared that the publishers' unilateral action in posting the lists had created "chaos" in the industry . When Business Agent Walzer attempted to calm Business Agent Walsh , the latter told Walzer that when the men "walked out" Walzer would "have to be responsible for it." Union President Simons announced that he was now-dissociating himself from the award . He admitted having ordered the stoppage at the Journal-American that day and threatened another strike if nonunion men were put to work there . Business Agent Walsh said, referring to the strike at the Journal that "If I violate [the no-strike clause in the contract] It won't be for any 8 [sic] minutes. It will be for all night." With reference to the News , Walsh said : "I don ' t know how long I can hold out . It is coming. The first night I get three drinks inside of me it is coming." Union Vice-President. Walters declared that the decision nullified the contract , a position which Union Attorney Duker observed was erroneous . Simons said that he would not be responsible for what happened . that night and the conference terminated, as Mapel put it, in a "chaotic state." 8. The May 23 award ; the abandonment of hiring lists On May 23, 1949, the Adjustment Board , with thepublisher members dissenting, banded down what became known as the "interim award." This award revoked the outstanding hiring lists , and in effect changed the contract criteria for hiring preference from length of plant service , substantially , to length of employment in the industry.. As described by the parties, it substituted industry seniority for plant seniority as the basis for hiring order . In addition, it gave the foremen in'eachiplant final authority to determine qualifications for employment. Fore men were members of the Union and covered by the bargaining contract. The text of the majority award is as follows: 1. The lists now posted by the various publishers shall not be used as the basis for hiring and are to be withdrawn immediately. 2. Effective immediately the foreman of each delivery room in hiring extra men shall give preference to those applicants for employment who have the most complete claim to, and are best qualified for the work, on the basis of length of service, and regularity and continuity of employment in the industry . In administering this clause the foremen shall use their best efforts to observe the spirit and letter of this provision . Where a dispute 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arises the foreman's determination shall prevail, but any case in which the foreman willingly and knowingly discriminates may be pressed as a grievance and any applicant against whom such discrimination in hiring was exercised shall be entitled to payment for work done. Perseverance in discriminatory hiring after notice may also be made the basis for imposition of a penalty. 3. The Publishers and the Union shall immediately undertake in joint conferences to work out hiring lists which will regularize the principles set forth in the foregoing paragraph. It was recognized by all that this formula would result in priority for many union members, but as Chairman Hays observed in an opinion accompanying the award, that consequence was a "fortuitous result of the existence of a perfectly legal closed shop," and not illegal. Despite the preferred position accorded many union members under the in- terim award, the Union continued to oppose any hiring of nonunion men before union members. On June 1, 1949, when the foreman at the Herald-Tribune, pur- suant to the authority granted him in the interim award, adjudged that certain recently employed union members were subordinate ' in seniority to some non- union shapers, Walsh called a strike and the union members walked out. The Tribune then put the union members to work, under protest. 9. The point system ; its abandonment In the meantime, the Adjustment Board proceeded to draft a final award to replace the interim award ; a task finally completed and announced on June 30, 1949. This award spelled out a detailed and complicated procedure for the maintenance of hiring lists. In essence, it continued the industry-wide seniority concept of the interim award but provided for ranking on the extra list by a system of numerical ratings, which became known as the point system. Under this system, employees were awarded points of differing values for service in the shop, in the industry, or substantially equivalent employment. Thus, for ex- ample, service in the particular shop after April 1, 1949, was given three;_ times the value of service prior to March 31, 1946; and service in a shop, twice the value of service in other shops. In addition, the award lumped regular sub- stitutes and extras on the extra employment list. The union members of the Adjustment Board dissented from this award. Following the issuance of the June 30 award, Chairman Hays resigned and was succeeded by Chairman Feinberg. The latter proceeded to set up lists in accordance with the award. These were finally completed and went into ,effect on September 14, 1949, over protests by the Union that they contained errors. At the News, insofar as the listed men were identified in the record herein as Union or nonunion, the list showed, generally speaking, that nonunion men had higher point ratings than union members. The Union then filed an action in the New. York courts to set aside the award, in which action it ultimately succeeded. The ground asserted for the court action was that the Adjustment Board has exceeded its authority in lumping regular substitutes and extras on the same hiring list. The lists remained in use only about 5 days. They were-set aside because of union objections under the following circumstances. On September 19, 1949, the publishers and the Union met to discuss the prob- lems raised by the Union's court action and its protests against the use of the point lists. The Union raised three objections : (1) That the lists improperly placed regular substitutes and extras on the same hiring lists; (2) that there were errors in computation ; and (3 ) that provision must be made for giving employment to employees of The Interborough News Company, which had ceased NEWS SYNDICATE CO., INC . 1115 business . Impartial Chairman Feinberg pointed out that there was provision for ironing out individual inequity or error. 4 Union President Simons then threatened to strike the papers that night if the lists .were used. AS Mapel testified, Simons and Business Agent Walsh made the following statements, among others : SimaNS. If the publishers do not get into line, wewill take the law into our own hands. I am going to put union men on tonight. * * * * * * * Everything ain't going to be all right. We want our pound of flesh before the non-union men. If it has. got to come to a fight, we will fight, we got a good army!. There ain't going to be any union men turned away tonight, and I am giving the orders. * * * * * * WALSa. That is all I want to hear Joe. You give the order tonight, I will walk the men tonight. Simons. You have my order. If a paper wants a man; the paper should call the union : I am telling Walsh in front of all of you that union men go to work tonight . . . you better be prepared tonight. If you think you are going to work tonight, you got rocks in your head. * * * * * * * If the union is in wrong with the Taft-Hartley Act let Washington get us on the ball ! * * * * * * * I am putting you on notice that those bundles won't have feet on them tonight, and that is that. Chairman Feinberg said that any individual who claimed prejudice because of his standing on the list would be interviewed and any injustice rectified. He further warned the union officials that he would enforce the -contract's no- strike clause to the hilt. Nevertheless Business Agent Walsh said, Mapel testified, that he was "going to the shops tonight to see that no non-union men went to work, if a union man did not have work," "No union man will go away without a job." Faced with a threat of shutdown, the publishers suggested that the Union file a formal grievance and that the Adjustment Board set aside the point system and return to the interim award pending further study by Chairman Feinberg. This was done, and on the same evening, the Adjustment Board set aside the June 30 award and reinstated the interim award. E. Events at the News The News posted the shop seniority list provided by section 4 (B) of the October 25, 1948, contract on May 16, 1949. It was promptly removed, surrepti- tiously., It was posted again, at least once, with the same result e On May 11, 1949, the day the compilation of the lists was completed, William Herman , foreman of the delivery department at the News, had a conversation with Walsh in the delivery department of the New York plant, in the presence -of 8 As heretofore pointed out , similar lists received similar treatment at the Journal- American and the Herald Tribune. Walsh admitted he had removed the list at the Herald Tribune. 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joseph Schiffman, city circulator of the News. During this conversation Walsh told Herman that he wanted the union men to go to work regardless of whether they worked at the News before or not, otherwise, he would "pull the shop." Walsh further told Herman that if the latter didn't hire union men on that basis, he would "subpoena" him before the Union and compel him to face charges before that organization. Herman at that time was, and for 28 years had been, a member of the Union, and was familiar with article 10, section 5 of the Union's consti- tution and bylaws which provided as follows : Foremen of all districts under the jurisdiction of this Union shall at all times select members of this Union to fill vacancies who are and have been recognized as steady or regular subs. When a vacancy occurs, other than specified in this Section, it shall be the duty of the foreman to notify the 'Union headquarters of the extra man or men required. On failure to do same and upon conviction of the first offense, the penalty shall be no less than $50; second offense no less than $100; and third offense expulsion from the Union. Walsh also told Herman that he would not allow any nonunion men who shaped since he took office in January 1949 to be put to work even if all union men had been assigned and additional work was available. On May 16, 1949, Walsh had a further conversation with Hirsch Kaplan, then assistant foreman at the New York delivery department, and also a' member of the Union. Walsh insisted that Kaplan call to work B. Gordon, Percy Janover, and Powers, all union men, but none of whom had ever worked at the News before. Kaplan declined to do so and instead called nonunion men to work who had previously been employed at the News. At about 8: 20 p. in., the three union men returned with Walsh and the latter made inquiry as to why the union men had, not been called to work. Not receiving a satisfactory explanation, Walsh asked Kaplan to surrender his union card, and informed the latter that he would "pull the shop." Without detailing the testimony, it is clear from the evidence that up to Novem- ber 8, 1949, the order of hiring substitutes and extras was union men first, and then if additional work was available, nonunion men. On November 8, however, several nonunion men were called to work while several union members who had shaped were left without employment. On November 9, some nonunion men went to work ahead of several union members. During the same evening, November 9, 1949, Walsh approached Max (Mike) Paul, superintendent of delivery for the News both at the New York and Brook- lyn plants, and demanded that Paul put union men to work ahead of nonunion men, regardless of "what or who they were." At about the same time, Paul heard Joseph Simons, president of the Union, tell the men who attended the shape that night that "nonunion men are not going to work ahead of Union men." During the same evening, Walsh informed Ivan Annenberg, director of circula- tion for the News and chairman of the negotiation committee of the Publishers' Association, that if nonunion men went to work ahead of union' men that "there would be no work done . . . [and that] he would pull the shop." The con- ference between Annenberg and Walsh lasted approximately an hour and a half, but Walsh remained adamant and refused to recede from his demand that all union men be put to work ahead of nonunion men, regardless of seniority. To induce Annenberg to comply with his demand, Walsh advised him that he would indemnify the News against any financial loss it might suffer as a result of such action. Annenberg replied that under the interpretation, of the contract by which he was guided, shop seniority would have to govern the selection of extras. - NEWS SYNDICATE CO., INC[ .1117 Annenberg had another conference with Walsh on November 10, 1949, at ap- proximately 5 p. m. This conference likewise lasted approximately 11/2 to 2 hours, the substance of which was that Walsh again repeated his demand that union men be put to work before nonunion men and the threat that if the News refused, Walsh would shut down the shop. At about 7:30 p. m., Walsh ordered, and succeeded in causing, a complete work stoppage lasting 1 hour and 28 min- utes at the New York plant, involving 114 men, and approximately 35 minutes at the Brooklyn plant, idling 68 men. During that stoppage, Walsh and Sam Walters, the union vice president, informed Annenberg that the men would not go back to work unless the News hired the 5 union men that had shaped that night, and that no work would be done until these men were put to work. The staff was ordered back to work only when Annenberg capitulated to Walsh's demands and put the 5 union men to work, men for which the News had no need. As a result of the work stoppage, the News, in pursuance of a remedy provided by the October 28, 1948, contract, filed a grievance against the Union with the Adjustment Board, asking both compensatory and punitive damages for viola- tion of the no-strike clause of the contract. After a hearing, damages in the sum of $1,500 were awarded the News. Further complications and difficulties were added in January 1950, with the demise of the New York Sun, at which approximately 300 union men were for- merly employed. Walsh in a conversation on January 6, 1950, told Bogart of the Herald Tribune that at a meeting of the "Sun chapel on January 5, 1950, the Sun's displaced union delivery men were divided into groups and assigned to the remaining papers. He further informed Bogart that no union members were assigned to the Herald Tribune, but that in any event, that paper could not hire nonunion men because no other paper could. Bogart inquired what would hap- pen if nonunion men were hired, and Walsh replied that there would be a "revolution." He mentioned the News award against the Union in the sum of $1,500 and said that such a penalty meant nothing to the Union when compared to "300 starving men." Walsh also said that there would be "murder" at the Times if the latter insisted on hiring nonunion men, expressed confidence that the News would meet his point of view and that neither the Taft-Hartley Act, nor the "interim award," made any difference compared to the dilemma of the Sun men. Immediately after the close of the Sun, a large number of union men from that paper shaped at the News, both in Brooklyn and New York. As a result of this influx, all of such union shapers went to work. before the nonunion men whose work was proportionally diminished during the next few weeks. Some of them took vacations shortly thereafter because they were getting so little work.. On January 14, 1950, certain nonunion employees of the News instituted a proceeding in a New York State Court against both Respondents, referred to in the record as Ryan v. Simons, and secured a temporary restraining order direct- ing the News to refrain from discharging the plaintiffs and ordering the Union not to interfere with their employment. At the shape on the following evening, January 15, some nonunion men were called for work before union members. Walsh was present and, before the shape was completed, ordered the chapel chairman to pull the shop. There was a work stoppage of 8 to 10 minutes, during which Walsh and Kaplan, the foreman who had called the shape, retired to an office. Upon their return to the shape area, all of the union men, some of whom had been passed over when the shape was first called, were put to work, while some nonunion men were left without employment. While the gravamen of the offense charged by the complainants was that they were completely deprived of employment at the News on a substantial number 1 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -of occasions because of their nonmembership in the Union, the evidence discloses another practice indulged in by the News, under the same compulsion of the Union heretofore described. Most of the complainants, during the critical period herein, shaped both the early and late edition of the News, except on those comparatively rare occasions when they were employed on the early, shape. Frequently, however, nonunion employees with greater seniority were compelled to shape both. early and late editions in order to secure work on the late shape, while union members with less seniority were employed on the early shift. This practice continued as late as November 23, 1950. On.that evening, while the hearing in this proceeding was in recess, union member Gordon, whose seniority, either shop or industry wide, did not antedate August 26, 1948, was called to work on the first shape, while at least four nonunion men with greater shop seniority, who likewise shaped early, were not called until the last shape. Conclusions On the entire record I am convinced and find that during practically all of 1949 and 1950, to the date of hearing, the order of hiring substitutes and extras in the delivery department of the News, at both the Brooklyn and New York plants, was union men first, and then, if additional work was available, and then only, nonunion men.' While there may have been isolated days when this order was not followed, the overwhelming evidence. compels the finding just announced. It does not follow, however, as a matter of course, that by such conduct, the News violated Section 8 (a) (3) of the Act. Conceivably, that order of hiring may have been the fortuitous result of circumstances other than mere member- ship in the Union. Especially is this a distinct possibility in the instant case, where, for many years, the News operated under a valid closed- shop contract with the Union. One of the necessary results of that long existing contract was to bestow varying degrees of seniority upon union members." If the News there- fore, after the expiry of the closed-shop contract, and the interposition of the Taft-Hartley Act, gave preference to,employees because of such seniority, it could not be guilty of unlawful discrimination. Indeed, such preference should receive commendation as a step forward in the promotion of better industrial relations between employer and. employees. On the other hand, Congress, by enactment of the Taft-Hartley Act, has de- clared that it is against public policy to condition employment upon union mem- bership alone.31 Accordingly, by Section 8 (a) (3) of the Act, it was made un- lawful for an employer to indulge in discrimination against his employees be- cause of nonmembership in a labor organization. To further proscribe such discrimination, Section 8 (b) (2) of the Act makes it unlawful for a union to ° Practically all of the complainants who took the witness stand so testified . As to the charging parties who did not testify, it was stipulated that if they "were called upon to 'testify, they would testify as to their own work history and what they observed in essen- tially the same fashion , [ on direct as well as cross-examination ], as the [ complainants] already called." 10 Notwithstanding the prior closed-shop contracts , the News found it necessary to employ additional nonunion help both before and. after the expiry of the last closed-shop contract on July 16, 1948. It was in this manner that nonunion employees likewise acquired varying degrees of seniority. 11 As heretofore indicated, we are not here concerned with the "Union-shop" conditions which may validly be imposed by the proviso to Section 8 (a) (3) of the Act. The facts do not disclose that such a clause was the basis for, or is a defense to any action taken by either Respondent. NEWS SYNDICATE CO., INC. 1119 cause, or attempt to cause, an employer to discriminate against employees be= cause of such nonmembership. Our problem, therefore, is to ascertain from all the facts in the case whether the General Counsel has sustained the burden resting on him to establish by a preponderance of the evidence (1) that the News, during the period alleged in the complaint, gave preference in the employment.of substitutes and extras by reason of membership in the Union, or withheld such employment because the appli- cants were not members thereof, and (2) that the Union caused, or attempted to cause, the News to discriminate against its employees because of their nonmem- bership in the Union. Consideration of the entire record compels the conclusion that the General Counsel has sustained the twofold burden described above. Nothing more need be added to the facts heretofore found to establish that the Union caused, and attempted to cause, the News to discriminate against the complainants 12 and other nonmembers of the Union. The strikes by the Union, called and threat- ened, not only at the News but also at the Journal-American and the Heraldi Tribune had no other objective or effect. And even before the critical stage was,. reached, union officials made it crystal clear that they would leave no stone un- turned to compel the News and the other members of the Publishers' Association to discriminate against nonmembers of the Union. Thus, notwithstanding that the Union had agreed, by its written contract, on October 25,1948, that preference in employment'be awarded on the basis of shop seniority, it notified the Associ- ation two days later that "it disapproved that method of listing because it would result in the inclusion . . . of a significant number of nonunion men." Its subsequent conduct establishes. clearly that it continued to oppose the criteria established by the contract for the employment of men, not only at the News, but at,the other metropolitan newspapers, and for the same reason: And,, though the Union subsequently appeared to agree to a system granting preference to employees based on industry-wide' experience, that method like- wise came under its ban when it was discovered that some union members had less of that type of experience than nonunion members. The only consistent position ever taken by it, throughout the entire history of its relations .with the News and the Publishers' Association subsequent to the expiry of the closed- shop contract, was that union members, regardless of seniority of either type, be given unconditional preference over nonmembers. Indeed, Walsh told Fore- man Herman on May 11, 1949, that he would not allow any nonunion men who shaped since he took office in January 1949 to be put to work at the News even if all union men had been assigned and additional work was available. While the evidence discloses that the News appeared to be desirous of estab- lishingstandards of- employment that complied with the law,12 the conclusion is inescapable that it failed to do so.- Apparently "faced with the possibility of shut-down, [The News] capitulated and discriminated. Economic exigencies, intimidation, or the compulsion of circumstances are, however, no defense to unfair labor practices. N. L. R. B. v. Gluck Brewing Company, 144 F. 2d 847 (C. A. 8) ; N. L. R. B. v. Star Publishing Co., 97 F. 2d 465 (C. A. 9) ; N. L. R. B. v. Hudson Motor Car Co., 128 F. 2d 528 (C. A. 6) Allis-Chalmers Co. v. N. L. R. B., 162 F. 2d 435 (C. A. 7) ; Guy F. Atkinson Co., 90 NLRB 143; General American Aerocoach Corp., 90 NLRB 239." Hearst Consolidated Publications, Inc., 93. n None of whom were members of the Union. 12 However , in one respect at least , it lent its voluntary cooperation In making effective. the discrimination charged In the complaint , by posting separate shape sheets for union members, and another for nonunion members. By thus interrogating its employees con- cerning union membership , the News violated Section 8 ( a) (1) of the Act. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 237. By hiring union members in preference to' the complainants and other nonunion employees solely by reason of union membership, and by hiring union members when it had no need for their services , the News has discrimi- nated in the hire and tenure of its employees thereby encouraging membership in the Union. By such conduct, the. News not only violated Section 8 (a) (3) of the Act,- but thereby interfered, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (1) thereof.1f By threatening to strike, and by striking, the News, the Herald-Tribune, and the Journal-American, and by threatening Foreman Herman for declining to give unlawful preference to union members, the Union has caused, and attempted to cause, the News to discriminate against employees in violation of Section 8 (a) (3) of the Act, thereby violating Section 8 (b) (2). By the same conduct, the Union restrained and coerced employees in the exercise of the. rights guaran- teed in Section 7 of the Act and thereby violated Section 8 (b) (1) (A) thereof.16 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in Section III, above, occurring in connection with the operations of the Respondent Company 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 It having been found that the Respondents have engaged in and are engaging in unfair labor practices, it will be recommended that they cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Having found that the News has discriminated in regard to the hire and tenure of employment of the complainants Milton Ashkenasy, Herbert Friedman, Aaron Harbus, Bernard Canner, William Gilson, Abraham I. Gordon, Gustave, Karger, John E. Kelly, John McMahan, Benjamin Schechner, Edwin J. Thornton, Filmore G. Weber, James R. Winners, Henry Sadowitz, and Nathaniel D. Tenen- baum, it will be recommended that the News, upon application, offer the com- plainants employment in available jobs in its delivery departmegt, without regard to their membership or nonmembership in the Union, or in any other labor organ- ization, and without prejudice to their seniority or other rights and privileges. Having further found that the Union has caused the News so to discriminate, it will be ,recommended that the Union notify the News, in writing, that it has no. objection to the nondiscriminatory employment of the complainants; and further, that it requests the Company to offer the complainants employment without discrimination because of their membership in the Union and without prejudice to their seniority and other rights and privileges. It is further recommended that the News notify the complainants in writing that, upon their application, it will offer them employment in available jobs on such nondiscriminatory basis, and that the Union notify the News in writing that it has no objection to the employment by the News of the complainants, or -other persons, without regard to their nonmembership in the Union. 14 Hearst Consolidated Publications , Inc., 93 NLRB 237; Newspaper and Mail De- liverers ' Union of New York and Vicinity, 93 NLRB 419. 15 Ibid. NEWS SYNDICATE CO., INC. 1121 Both Respondents being responsible for the discrimination suffered by the complainants, it will be recommended that they jointly and severally make them whole for any loss of pay incurred by reason of the .discrimination from April 24, 1949, to the date.of compliance with these recommendations.36 -Exact com- putations shall be in accord with the Board's usual policies. F. W. Woolworth Co., 90 NLRB 289; Crossett Lumber Co., 8 NLRB 440; Republio Steel Corporation v. N. L. R. B., 311 U. S. 7. The Union, however, may terminate its liability for further accrual of back pay by giving the the News the notice mentioned above. If such notice is given, the Union shall not be liable for any back pay accruing`5 days after such notice is given'T The Company may also terminate its liability' for further accrual of back pay by notifying the complainants that available work will be offered them without discrimination and offering them employment on such basis, as provided above. It will also be recommended that the News make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay due and to determine the right of employment's It is further recom- mended that the Board reserve the right to modify the back pay and reinstate- ment provisions of the order to be entered herein, if made necessary by a change of conditions in the future, or to make such supplements thereto as may here- after become necessary in order to define or clarify their application to a specific set of circumstances not now apparent. On the basis of the foregoing finding of fact and upon the entire record in the case, I make the following: CONCLUSIONS of LAW 1. News Syndicate Co., Inc., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Newspaper and Mail Deliverers' Union of New York and Vicinity is a labor organization within the meaning of Section 2 (5) of the Act. 3. By causing or attempting to cause the Respondent Company to discriminate against employees Milton Ashkenasy, Herbert Friedman, Aaron Harbus, Bernard Canner, William Gilson, Abraham I. Gordon, Gustave Karger, John E. Kelly, John McMahan, Benjamin Schechner, Edwin J. Thornton, Filmore G. Weber, James R. Winners, Sadowitz, and Nathaniel D. Tenenbaum, in violation of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4 By restraining and coercing employees in the exercise of rights guaranteed in Section 7'of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Mil- ton Ashkenasy, Herbert Friedman, Aaron Harbus, Bernard Canner, William Gilson, Abraham I. Gordon, Gustave Karger, John E. Kelly, John McMahan, Benjamin Schechner, Edwin J. Thornton, Filmore G. .Weber, James W. Winners, Henry Sadowitz, and Nathaniel D. Tenenbaum, thereby encouraging member- ship in the labor organization, the Respondent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Company has en- 18 The Respondents however shall not be liable for back pay for any day when, absent discrimination, the complainants would not have been employed. 17 Pinkerton's National Detective Agency, Inc., 90 NLRB 205. 28 F. W. Woolworth Company, 90 NLRB 289. 1122 DECISIONS OF - NATIONAL LABOR RELATIONS BOARD gaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid'unfair labor practices are unfair labor practices effecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] GREEN BAY DROP FORGE COMPANY and UNITED AUTOMOBILE WORKERS OF AMERICA, AFL,1 PETITIONER GREEN BAY DROP FORGE COMPANY and INTERNATIONAL . BROTHERHOOD OF BLACKSMITHS , DROP FORGERS AND HELPERS, AFL,2 PETTTIONER. Cases Nos. 13-RC-1894 and 13-RC-1926. August 14,1951 Decision and Direction of Elections Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Ivan C. McLeod, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed ..3 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record in these cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. Herein referred to as the UAW-AFL. x Herein referred to as the Blacksmiths. ' At the hearing , the Blacksmiths , referring to the imminent completion of its merger with another international union, moved to amend its petition by adding "or its successor" to its name therein. The Intervenor thereupon moved to dismiss the Blacksmiths ' petition claiming that the Blacksmiths , because of such current merging, had lost its representative capacity . The hearing officer granted the Blacksmiths' motion, and referred the Inter- venor 's motion to the Board . We find no merit in the Intervenor 's motion. However, we do not deem it necessary to amend the petition , as requested by the Black- smiths, as to do so might cause confusion in the minds of the voters at the election be- cause of the indefinite character of the added description . Pittsburgh Limestone Corpo- ration , 77 NLRB 710. The hearing officer's ruling is therefore reversed . On the other hand , if the merger of the Blacksmiths is consummated before the election and a new name is agreed upon by the merging unions , then the Regional Director , upon proper re- quest, is hereby authorized to substitute the new name on the ballot for that of the Blacksmiths. , 95 NLRB No. 140. Copy with citationCopy as parenthetical citation