Newspaper and Mail Deliverers' Union of New York

National Labor Relations Board - Board Decisions

Aug 24, 1950

90 N.L.R.B. 2135 (N.L.R.B. 1950)

In the Matter of NEWSPAPER AND MAIL DELIvERERs' UNION OF NEW
YORK AND VICINITY and INTERBOROIIOH NEWS COMPANY
Case No. 2-CC-103.-Decided August 24, 1950
DECISION AND ORDER
On November 29, 19493 Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding , finding that the Re-
spondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel and Interborough
News Company, the charging party, filed exceptions to the Intermedi-
ate Report, and the General Counsel filed a supporting brief.
On July 6, 1950, the Board heard oral argument in Washington,
D. C., in which only the General Counsel and the Respondent par-
ticipated. Thereafter, the General Counsel filed a supplemental
memorandum.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the brief and exceptions, the contentions advanced
by the General Counsel and the Respondent at the oral argument,
the supplemental memorandum, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the following modification.
As set forth in the Intermediate Report, the Respondent's agents
induced members of the Respondent Union who were employed by
secondary employers to refuse to deliver newspapers to the subway
newsstands operated by Interborough News Company, with which
the Respondent was engaged in a labor dispute. We agree with the
Trial Examiner's conclusion that because the Respondent's conduct
in such inducement invited action only at the premises of the primary
employer, whose employees were on strike, it was not violative of
Section 8 (b) (4) (A) of the Act, as alleged in the complaint .1 In
1 Oil Workers International Union, Local Union 346 (010) ( The Pure Oil Company),
84 NLRB 315.
90 NLRB No. 297.
2135
2136 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordance with the Trial Examiner's recommendation, therefore,
we shall, for this reason, dismiss the complaint in its entirety. In
view of our dismissal of the complaint on this ground, we find it unnec-
essary to consider the effect of the proviso to Section 8 (b) (4) upon
the legality of the Respondent's activities, and we therefore do not
adopt the Trial Examiner's conclusions and recommendations with
respect thereto.
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 complaint herein against
Newspaper and Mail Deliverers' Union of New York and Vicinity,
be, and it hereby is, dismissed.
MEMBER STYLES took no part in the consideration of the above Deci-
sion and Order.
INTERMEDIATE REPORT
Mr. Warren H. Leland, of New York , N. Y., for the General Counsel.
Mr. Samuel Ducker, of New York, N . Y., for the Respondent.
Mr. Edwin F . Korkus ( Korkus and Korkus )., of New York, N. Y., for the
charging company.
STATEMENT OF THE CASE
Upon an amended charge filed August 23 ', 1949, by the Interborough News
Company, herein called Interborough , the General Counsel of the National Labor
Relations Board, by the Regional Director for the Second Region ( New York
City ), issued his complaint , dated August 24, 1949, against Newspaper and Mail
Deliverers ' Union of New York and Vicinity , herein called the Respondent , alleg-
ing that the Respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 ( b) (4) (A) and
Section 2 (6) and ( 7) of the National Labor Relations Act as amended (June
23, 1947, Public Law 101, 80th Congress, Chapter 120 1st Session ), herein called
the Act.
With respect to the unfair labor practices ,-the complaint alleged in substance
that since on or about June 27, 1949 , the Respondent , by orders , directions, and
instructions to its members to engage in concerted activities on its behalf, engaged
in a strike and/or induced and encouraged the employees of the New York Daily
News, New York Post, New York Sun, Inc., Metropolitan News Company, and of
other publishers and distributors , to engage in a strike or a concerted refusal in
the course of their employment to process , transport , or otherwise handle or
.work on any goods, articles , materials or commodities, or to perform any services,
one object thereof being to force or require the aforesaid publishers and dis-
tributors to cease doing business with Interborough.
Copies of the complaint , accompanied by notice of hearing thereon , were duly
served upon the Respondent and upon Interborough.
Thereafter the Respondent filed its answer in which it denied the commission
of any unfair labor practices.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 2137
Pursuant to notice, a hearing was held at New York City on September 21,
22, and 23, 1949, before Arthur Leff, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The General Counsel, the Respondent, and
Interborough were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties. Motions made by the
Respondent at the close of the General Counsel's case, and again at the close of
the entire case, to strike certain documentary evidence from the record upon
various grounds, were denied. At the end of the General Counsel's case, the
Respondent moved to dismiss the complaint for insufficiency of proof. The motion
was denied with leave- to renew at the close of the entire case. When the motion
was renewed at the end of the entire case, ruling thereon was reserved. It is now.
disposed of in accordance with the findings of fact and conclusions of law made
below. A. motion made by the General Counsel at the conclusion of the hearing,
to conform the complaint to the proof with respect to minor variances, was
granted. Opportunity was afforded all parties to argue orally before the Trial
Examiner, and to file briefs and/or proposed findings of fact and conclusions of
law. Briefs were thereafter filed by the General Counsel on November 1, 1949,
and by the Respondent on November 4, 1949.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACP
1. THE BUSINESS OF THE COMPANY
Interborough News Company, a New York corporation with its principal office
and place of business in New York City, is engaged, directly and through wholly
-owned and controlled subsidiary corporations, in the business of distributing
magazines, periodicals, and newspapers in some 12 northeastern States. In addi-
tion to its wholesale distribution business, Interborough owns and operates under
contract with the City of New York the newsstands and vending machines located
in the Independent Subway System in New York City. During the year 1948,
Interborough purchased newspapers, magazines, other publications, candy, and
miscellaneous products valued in excess of $8,000,000, more than 20 percent of
which was received from points outside the State of New York. During the
same period, Interborough sold newspapers, publications, candy, and miscel-
laneous products valued at in excess of $10,000,000, more than 10 percent of which
was sold and shipped to points located outside the State of New York. Of the
purchases made by Interborough in 1948, in excess of $1,250,000 was for resale
in its Independent Subway System operations, and over 20 percent of such
purchases was made outside the State of New York. It is found that Inter-
borough is engaged in commerce within the meaning of the Act."
if. THE LABOR ORGANIZATION INVOLVED
Newspaper and Mail Deliverers' Union of New York and Vicinity is an un-
affiliated labor organization admitting to membership certain . employees of
Interborough.
'The Board in a number of prior proceedings has asserted jurisdiction over the Inter-
borough's operations . upon petition of the Respondent Union. See , e. g., Interborough
News Company, 78 NLRB 1089.
2138 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background; the Respondent's primary labor dispute with Interborough
In June 1948, Interborough was engaged in New York' City in the wholesale
distribution of magazines and periodicals to numerous retail outlets. In addition,
it owned and operated, under agreement with the Board of Transportation of
the City of New York, some 127 newsstands located in the stations of the Inde-
pendent Subway System, where it sold at retail newspapers, magazines, candies,
and other items of merchandise.2 Among the approximately" 500 workers in
its employ, Interborough had about 100 employees classified as floor men, route
men, and drivers. ' The men so classified handled, distributed and delivered
'magazines and periodicals to Interborough's retail customers and also delivered
to Interborough's subway stands all articles of merchandise which were there
sold-except newspapers. Newspaper deliveries to the subway stands were made"
by route men and drivers employed by the various newspaper publishers and
by a number of independent distributors. The route men and drivers employed
by the newspaper publishers and distributors were members of the Respondent,
as were also the floor men, route men and drivers in Interborough's employ.
Although never formally certified by the Board, the 'Respondent's status as
exclusive bargaining representative of the Interborough's floormen, route men,
and drivers bad long been recognized, by Interborough.3 Neither the appro-
priateness for the purposes of collective bargaining of the unit for which the
Respondent was the recognized representative, nor the exclusive representative
status at all times material herein of the Respondent in that unit, is challenged
in this proceeding.
The Respondent's latest of a number of contracts with Interborough, covering
the employees in the unit described above, expired in July 1948. Shortly before
its expiration date the contracting parties, as a consideration for maintaining
peaceful relations during negotiations for a new contract, stipulated in writing
that any wages fixed in the new contract would be retroactive to the expiration
date of the old, and that such vacation plan and holiday pay as might be agreed
upon in the Respondent's contract with the New York City Publishers Association
would also be incorporated in its contract with Interborough. The stipulation
was conditioned, however, upon there being no work stoppage during negotiations.
Thereafter, numerous negotiating meetings were held, and proposals and counter-
proposals were exchanged. At times the negotiating agents appeared to have
reached agreement only to find their apparent agreement rejected by one or
the other of the principals. Sometime in May 1949, Interborough submitted a
proposed contract which the Respondent's officials agreed to submit to the
membership and to support. It would seem, although the record is not altogether
clear on this point, that this proposed contract, like others that had preceeded
it, made provision for a wage increase, for vacations, and for holiday pay. The
climactic negotiating meeting was held on June 20, 1949. At that meeting, Inter-
borough presented new demands which, apparently, included the withdrawal
2 Interborough 's employees who operate the newsstands are organized by a union other,
than the Respondent.
8 On August 18, 1948, the Board in Case No. 2-UA-3940 certified the results of an
election authorizing the Respondent to make an agreement with Interborough requiring
membership in the Respondent as-a condition of employment in a unit of route men, drivers,
and floormen.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 2139
of certain economic concessions to which it had consented in its prior contract
proposals . A stormy session followed. Interborough insisted that the Respond=
ent's officials refer its new proposals to the union membership. The Respondent's
officials refused, stating they would submit only the Respondent's previously
presented proposed contract. Interborough stated it was no longer willing to
accept that contract. The meeting broke up in an impasse.
On the following day, June 21, 1949, the employees in the unit represented by
the Respondent came to their places of employment but refused to go to work 4
At a meeting later that day, officials of the Respondent unsuccessfully sought
to persuade Interborough to withdraw their latest contract demands. At that
and at subsequent meetings held within the next 48 hours, Interborough repre-
sentatives expressed their willingness to continue contract negotiations, con-
ditioned, however, upon the employees returning to work while negotiations
were in progress. The Respondent's officials, on the other hand, declined to
send the men back without a prior guaranty from Interborough that they would
receive a stipulated wage increase and vacation rights, both applicable retroac-
tively to the expiration date of the last contract. No settlement was reached, no
negotiations have been held since, and the situation, so far as the work stoppage
is concerned, has remained unchanged.
On June 21, pickets appeared in front of Interborough's principal. place of
business. During the succeeding several days the picketing was extended to
cover the entrances to some of the subway stations in which Interborough
operated newsstands. The legend on the picket signs read, "Employees, mem-
bers of the Newspaper and Mail Deliverers' Union, locked out. Please do not
patronize." According to Charles Weinberg, the Respondent's secretary- treas-
urer, the picketing prior to June 28 was organized by voluntary action of the
Respondent's members in the Interborough unit, and was not specifically au-
thorized by formal action of the Respondent. Such formal action was taken,
however, at a special meeting of the Respondent's Executive Board held on
June 28. Following a report on the. Interborough situation, the Executive Board
resolved that its members at Interborough should picket Interborough' s plants
and subway newsstands ; that they should receive $25 a week as lockout benefits ;
and that the Respondent's attorney should be directed to institute a civil ac-
tion against Interborough to recover retroactive and vacation pay allegedly
due the employees. Two days later, at an "emergency meeting" of the Re-
spondent's general membership body, the resolution of the Executive Board was
approved. At that meeting, too, a motion was defeated, that any member of
the Respondent who crossed its picket line was to be brought up on charges.'
That motion was turned down after certain officers of the Respondent had ex-
plained that the Respondent was not in a position, because of its contract with
the Publishers Association of the City of New York, to direct. such of its mem-
bers as were employed by newspaper publishers to refuse to make deliveries to
Interborough newsstands. It was anticipated, however, that as good union men,
S This finding is based upon the credited testimony of Interborough Treasurer Herbert
Meyer. The testimony of Charles Weinberg, the Respondent's secretary- treasurer , that the
employees were refused admittance to work that day and thereafter, and were locked out
by Interborough, is, in the light of all the record circumstances , found improbable, and is
not credited.
The Respondent ' s constitution and bylaws are silent on that subject.'
2140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's members would recognize, and support, the formal action taken
by their union with regard to the Interborough situation.6
Picketing of subway entrances-to the limited extent found below-continued
until July 8, 1949. It was discontinued on that day by order of the Respondent's
Executive Board, and has not since been resumed. .
Before turning to an analysis of the Respondent's specific conduct claimed
to have been violative of the Act, it is perhaps best at this juncture to dispose
of a preliminary factual issue, determination. of which is important to an
appraisal of the Respondent's alleged illegal conduct. A question has been
raised as to whether Interborough's employees during the period here involved
were engaged in a strike ratified or approved by their bargaining representative.
I think it clear that the answer must be in the affirmative. .Among the facts
already narrated which point unequivocally toward that conclusion are the
following: (a) The impasse in bargaining negotiations which directly preceded
the work stoppage ; (b) the conduct of the Respondent's officers immediately
thereafter in negotiating with Interborough the terms upon which the Respondent
was prepared to have its members return to work; (c) the action of the Re-
spondent's Executive Board in establishing picket lines; (d) the provision made
for the payment of "lockout" benefits; and (e) the formal approval of the
Executive Board's action at the general membership meeting. The findings
made in the. succeeding subsection of this Report, concerning the activities of
the Respondent's agents, acting in their official capacity as such, lend added
support to this conclusion.
Probably, no issue on this point would have been raised, had not Weinberg,
the Respondent's secretary-treasurer, taken the position while testifying that the
work stoppage was a lockout and not a strike. Weinberg, in amplification of his
position, testified :
At no time whatsoever was the union, whether it was an executive board
meeting or whether it was a general body meeting, was there any authority
given to anybody to call a strike, because I am quite familiar with the
constitution and by-laws, and the constitution and by-laws says that before
you can call a strike you must have a vote by machine. And that was never
done, sir, so therefore it could not have been termed a strike.
The General Counsel in his brief seizes upon Weinberg's quoted testimony, and
urges it as conclusive proof that the Respondent was not engaged in ratified
or approved strike action. But testimony that is discredited is not proof. And
in the light of all the record circumstances, including the testimony of the
General Counsel's principal witness, Herbert Meyer, whom I do credit, I am
unable to accept Weinberg's testimony that what was involved here was a
"lockout."' Nor am I able to accept the conclusion the General Counsel would
6 Thus, Harry Waltzer, the Respondent's day business agent, testified :
. . . it is a natural reaction for anyone , a member of a union , it would not be a nice
thing for him to be noticed crossing a picket line . The union does . not have to tell
anybody anything . . . . the union made the declaration at a general membership
meeting that we have to live up to the contract. For the rest they may use their
own discretion and be union men.
' The Respondent in its brief recedes from the position taken by Weinberg at the hearing.
It is there stated :
At the hearing some question was raised whether there was a strike involved. We
believe that the facts speak for themselves . To obviate the need for following the
cumbersome machinery of the Union constitution on strikes , the situation was dubbed
a lock out . But there is no question . . . that the Interborough employees would not
go back to work except on certain terms which Interborough refused to meet.
NEWSPAPER AND MAIL DELIVERERS ' UNION OF N . Y. AND VICINITY 2141
draw therefrom that the work stoppage of Interborough employees was, and
remained, "wildcat" action. Such a conclusion could be reached only by ignoring
the clearly inconsistent objective facts noted above, and by closing one's eyes
to the realities of the situation. There was, to be sure, a failure on the part
of the Union to follow strictly the procedures set out in its constitution for
calling a strike. But that circumstance, standing alone, cannot be viewed as
controlling on the question. It is found that the Interborough employees in
the unit above described were engaged at all.times material herein in a strike,'
and that the strike was ratified and approved by the Respondent, the exclusive
bargaining representative of such employees whom Interborough was required
by law to recognize.
B. The Respondent 's specific conduct claimed violative of Section 8 (b) (.^)
(A); factual analysis
Interborough found, after the strike began, that it was no longer receiving
normal newspaper deliveries at its subway newsstands. The record reflects
that at the beginning nondeliveries were confined to newsstands in a relatvely
few subway stations, usually key stations, where pickets may have been actu-
ally posted at the time. On June 27, however, there was a sharp increase in
the number of newsstands failing to receive deliveries of afternoon news-
papers ; but the number of subway stations involved still represented but
a minor proportion of the total. Another sharp increase occurred on June 28,
the day the Respondent's Executive Board formally voted to establish picket
lines and to pay "lock out" benefits. On that day approximately 60 percent
of Interborough' subway stands were not served their afternoon papers. In
succeeding days the percentage of nondeliveries continued to rise. From June
30 to July 8, almost all newsstands operated by Interborough failed to receive
delivery of their afternoon papers. The situation with regard to morning
newspapers varied mainly in that the curtailment of deliveries began on a
later day. Deliveries of morning newspapers remained substantially normal
until the night of June 29. On that night, a substantial number of Inter-
borough's newsstands failed to receive their June 30 newspapers. Thereafter,
the delivery situation with regard to morning newspapers substantially par-
alleled the course of afternoon newspapers. After the Executive Board, on
July 8, directed the discontinuance of picketing at the subway entrances,
deliveries of morning and afternoon newspapers were restored to normal, and
have remained so ever since.
It is the General Counsel's position that Interborough's failure to receive
its normal consignment of newspapers during the period from June 27 to
July 8 was directly attributable to the Respondent's conduct in inducing,
encouraging, and instructing its members,, who were employed as route men
and drivers by various publishers and distributors, not to serve Interbor-
ough's newsstands. The Respondent does not dispute that at least some of
its members , who were employed as route men and drivers by such publishers
and distributors, refused during the period in question to enter stations of the
Independent Subway System for the purpose of making deliveries to Inter-
borough newsstands. But it asserts that they refused because, as individuals
acting of their own free volition, they were reluctant to cross picket lines
9 Section 502 of the Labor Management Relations Act, 1947, defines a strike as including
any "concerted stoppage of work by emnployees."
2142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted at the subway entrances, and that they refused despite-and not
because of-orders, instructions, and directions of the Respondent.
The factual issue involved may be further clarified and reduced by refer-
ence to the following two points-one legal , the other factual-with regard to
the picketing :
First, the General Counsel apparently concedes. that the Respondent' s pick-
eting of entrances to subway stations in which Interborough newsstands were
located constituted legitimate primary picketing activity. He makes no claim
that the picketing, standing alone, constituted illegal inducement and encour-
agement within the meaning of Section 8 (b) (4) (A).
Second, although there is a conflict on this point, the credible testimony
in the record satisfactorily establishes, and it is found, that picketing of
Interborough's operations in the Independent Subway System during the period
in question was confined mainly to certain key stations along the system, there
being no actual picketing of entrances to a majority of subway stations housing
Interborough newsstands. The credited evidence further establishes, and it is
found, that, at least after June 27, numerous newsstands failed to receive deliv-
eries, although the subway stations in which they were located had no pickets
posted at their entrances.'
To support his position that the Respondent, through its responsible agents,
induced and encouraged employees of newspaper publishers and distributors
not to deliver newspapers to Interborough newsstands-and, concomitantly, to
refute the Respondent's contention that the nondeliveries flowed, rather, from
individual action of such employees-the General Counsel relied upon certain
specific incidents, which are found sustained by the credited testimony of the
following witnesses :
(a) John Geilen, delivery superintendent of the New York Sun, and a member
of the Respondent,10 testified : On June 27, Harry Waltzer, the Respondent's day
business representative, visited the Sun's delivery room where he engaged a
group of some 20 to 40 employees in a discussion concerning the Interborough
situation. Waltzer told the employees in substance, "We got trouble with the
Interborough News Company and [its] stands are not to be served." On June
28, Waltzer again appeared at the Sun's delivery room, again addressed em-
ployees there present, and reiterated in substance his remarks of the preceding
day. Subsequently that day, Waltzer had a meeting on an unrelated matter
with Geilen and George Yaisle, the Sun's circulation manager. In response to
0 The findings made in this paragraph , are based principally upon the credited testimony
of Ralph Rigger, George Murray, Abraham Gold, David Paletnek, and John Steiner, all of
whom testified on the basis of their personal observation . The contrary testimony adduced
by the Respondent on this factual issue was largely of a hearsay or otherwise unreliable
character . Although picketing records were allegedly prepared by the Respondent, the
records were not produced, it being claimed that they were destroyed. Anthony Tuths, a
member of the Respondent 's Executive Board, conceded while testifying that there was
never 100 percent picketing, and Secretary-Treasurer Weinberg admitted that the Inter-
borough employees could not possibly have picketed all entrances . The explanation given
by one witness , that the Interborough picketing group was supplemented by "hundreds"
of non-Interborough members after a motion had been carried at the General Body meeting
on June 30 requiring all union members to assist in picketing , was not convincing . Tuths,
while testifying , was unable to recall any such motion being made . Moreover, even if
"hundreds" of picketing volunteers were added after June 30, it would not explain on that
basis, the nondeliveries prior to July 1 which for at least 2 days had affected substantially
the same number of stands.
10 Delivery foremen are required to be union members under the terms of the Respondent's
contract with the Publishers Association.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 2143
an inquiry by Yaisle concerning the Interborough situation, Waltzer stated in
effect that he had instructed the men not to serve Interborough stands"
(b) Leo Businell, the New York Post's delivery superintendent, and a mem-
ber of the Respondent, testified : On June 28, Waltzer visited the Post and told
Businell to instruct the employees not to service Interborough newsstands.
Businell declined to heed Waltzer, and instead instructed the men to make
deliveries. On the following day, Waltzer reappeared at the Post's premises,
spoke to a group of employees, and stated, among other things, "that the union
.was having trouble with Interborough, and that his [Waltzer's] orders were not
to cross the picket lines that were around the subway entrances." Waltzer
also stated in effect, although not perhaps in so many words, that any man found
crossing the picket line would be summoned before the Union"
(c) William Welkowitz, assistant manager.of the New York Daily News,
testified : On the evening of June 29, William Walsh, the Respondent's night
business agent, visited the delivery room of the News. Walsh told the drivers,
"You know we are having trouble with Interborough, and we don't want you to
make deliveries to Independent subway newsstands." 13
(d) Morris Cohen, a clerical employee of J. Brodsky and Sons, newspaper
distributors in the Borough of Queens, testified that on or about June 29, Edward
Stolz, the Respondent's chapel. chairman for the Brodsky shop, told approxi-
11 Geilen's testimony concerning Waltzer's statement of Yaisle was corroborated by
Yaisle. Waltzer denied making, this statement, and denied, also, making other Statements
attributed to him by Geilen. Waltzer admitted speaking to the Sun's employees on the
occasion in question, but gave the following version of what occurred : It was not he but
the employees who had initiated the discussion, by inquiring of him whether they should
cross the union picket lines. Waltzer told the employees-as he also told. employees of
other newspapers who had made similar inquiries-that, because of the union's contract
with the Publishers Association, he was obliged as an officer of the union officially to advise
the men to deliver the papers, but that he could not compel them to make deliveries, and
that he personally would not cross a picket line under like circumstances.
To the extent'that Waltzer's testimony is in conflict with that of Geilen and Yaisle, it
Is rejected. In resolving the issue of credibility, I have considered, among other things,
that Geilen is a union member, that Yaisle is a witness disinterested in this proceeding;
that the testimony of the two was mutually corroborative in part, and that Waltzer's
testimony in other respects showed him not to be a completely reliable witness. It is
noted, however, that even on the basis of Waltzer's version, it would appear that he was
doing no more than giving lip service to the Respondent's contractual obligations for the
sake of a record, while at the same time making It clear that he did not want the employees
to deliver to Interborough.
13 Waltzer's denial that he made the statements attributed to him Is not credited. Ac-
cording to Waltzer, his conversation with Businell on June 28 revolved about Businell's
complaint that other newspapers, but not the Post, were being delivered, testimony which
appears improbable in the light of record facts disclosing that the Post's nondeliveries
followed a pattern of nondeliveries similar to that of other afternoon newspapers. Waltzer's
testimony, that he spoke to the men at the Post only because they had complained to him
that they were being threatened with loss of their jobs if they crossed the picket line, was
even less convincing. It was obvious from Businell's testimony and demeanor that he
was reluctant to supply evidence damaging to his union, and it is difficult to believe that
he would have fabricated untrue testimony in a situation 'of this kind.
13 Walsh's denial was unconvincing, and it was not credited. According to Walsh, he
considered himself obligated to speak to employees at the News only because they had
expressed fear that their skulls might be broken if they crossed the picket line. His advice
to them, he would have it believed, was, "Look, it is my belief that if you fear them, you
don't have to pass the picket line under the law. But remember this : We have contracts-
I have been so ordered by the general body and the president of the Union, the papers must
be delivered." (The General Body meeting was not in fact held until the following day.)
Although Walsh further testified that the News was in fact delivered, the documentary
evidence is to the contrary.
2144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately six of Brodsky's employees that it was the Union's position that Inter-
borough newsstands were not to be served.14
(e) Irving Levine, a member of the Respondent, employed as a delivery super-
intendent by Metropolitan News Company, distributor of the New York Times,
testified : On June 30, 1949, Joseph Ricciardi, Anthony Tuths, and Alfred
Casazza, members of the Respondent's Executive Board, visited the Metropolitan
shop, spoke to about 25 to 30 employees, and told them not to make deliveries to
Interborough's newsstands. The Executive Board members also informed Levine
that Metropolitan was not to deliver to Interborough's subway newsstands.
Levine, after consulting his "boss", reported these facts to a Times representative,
and was advised not to deliver to the subway stands, but to make deliveries
instead to "upstairs" news dealers. Because of these instructions, Metropolitan
removed Interborough from its `.`delivery board" and consigned no newspapers
to it until after July 815
The Respondent argues in its brief that though the activities described above
were engaged in by persons who occupied an agency relationship to the Respond-
ent, their conduct may not be imputed to their principal because it did not con-
stitute "official action" of the Respondent. There is no substance to this agree-
ment. Under the Act, a union's responsibility for the conduct of its agents does
not turn upon whether the specific acts performed were actually authorized or
subsequently ratified or approved by formal action of the union. Responsibility
attaches if, applying the "ordinary rules of agency," it is made to appear that
the union agents were acting in their capacity as such and within the general
area of their authority. See Sunset Line and Twine case, 79 NLRB 1437. In
this case, Waltzer and Walsh, as the Respondent's business representatives, were
elected ofiicets employed upon a full-time basis to manage the Respondent's af-
fairs. From their title and the nature of their duties alone, it may be inferred
that they were vested with the powers of general agents of the Respondent.
Moreover, under the Respondent's constitution, its business agents together with
its officers and Executive Board members are, in the event of a strike, charged
with the responsibility of acting for the Union as a strike committee. On the
basis of the entire record in this case, I am satisfied that the Respondent's busi-
ness agents-and the members of the Executive Board as well-engaged in the
specific activities described above for the purpose of promoting and making more
effective the Respondent's strike action against Interborough ; and that in doing
so they were acting, not in their individual capacities, but in the interest of the
1' Stolz testified that he instructed the union members to make deliveries, but that they,
nevertheless, kept returning Interborough's consignment, undelivered, until the firm finally
ordered that Interborough routes no longer be made up. Because Cohen was a disinterested
witness and because his testimony impressed me as the more plausible of the two in the
light of all the record circumstances, I accept his version and reject that of Stolz.
11 Tuths denied that the statements attributed by Levine to the Executive Board mem-
bers were made. It was Tuths' testimony that the Executive Board, at a meeting on June
28, had designated Tuths and other members of that Board to supervise picketing activities
at the subway sites. While engaged on that mission, according to Tuths, he and other
Executive Board members made it a point, between June 28 and July 1, to visit the plants,
not only of Metropolitan, but of other newspaper publishers and distributors as well. The
purpose of these visits, Tuths would have us believe, was to advise the Respondent's mem-
bers there employed that the Respondent wanted them to serve Interborough. I am unable
to believe that Executive Board members charged with the responsibility of maintaining
effective picketing would have simultaneously worked at cross purposes in the manner
claimed by Tuths. Nor does Tuths' testimony square with the fact, conceded by him, that
prior to his visit Metropolitan was delivering to Interborough newsstands, but not there-
after. For the reasons indicated, I do not credit Tuths' denial.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 2145
Respondent, and within the general area of their authority. Chapel Chairman
Stolz had, it is true, more limited authority. But as a shop steward he was
required to perform such duties as might be required of him by the Union. Since
it appears that his conduct conformed to the general policy lines set by the
business agents and the Executive Board members, it is reasonable to infer, and
it is found, that he was acting under their direction or instructions, and like them,
in a representative and not an individual capacity.
It is found that the Respondent, by the statements and conduct of Waltzer,
Walsh, Stolz, Ricciardi, Tuths, and Casazza, above set forth, induced and en-
couraged employees of employers, other than Interborough, not to make news-
paper deliveries to Interborough newsstands during the period from June 27 to
July 8, 1948.
C. Conclusions
Reduced to bare essentials , the facts here found upon which decision must turn
are these : Employees of Interborough in an appropriate unit were engaged
against their employer in a strike ratified and approved by the Respondent,
their exclusive bargaining representative entitled to recognition under Section
9 (a) of the Act . As part of its business , Interborough owned and operated the
subway newsstands located in the Independent Subway System . To support
its strike , the Respondent picketed Interborough 's subway newsstand operations,
by posting pickets in front of a number, but not all, of the subway stations in
which Interborough 's stands are located. It is not disputed that the subway
stations housing Interborough ' s newsstands must be regarded as premises of
Interborough .'6 Similarly , it is undisputed that the picketing , where it occurred,
constituted legitimate primary activity . In addition to picketing , however, the
Respondent , through its agents, visited employees of other employers who nor-
mally deliver newspapers to Interborough 's newsstands , and induced and en-
couraged these employees , who also are members of the Respondent , not to make
deliveries to the struck employer 's subway newsstands . That was the extent
of the claimed illegal activity . There was no attempt by the Respondent to in-
duce or encourage the employees of the other employers to engage in a strike
against their employer , to refuse to transport or to handle newspapers, or to
refuse to perform any services for their employer, save for the services involved
in making newspaper . deliveries at and upon Interborough's subway premises.
As a result of the afore -mentioned conduct of the Respondent 's agents, employ-
ees of the other employers failed and refused to make deliveries to Interborough's
newsstands , not only at locations actually picketed , but at others as well. It
is the theory of the complaint that the Respondent violated Section 8 (b) (4)
(A), by inducing and encouraging employees of other employers to refrain in the
course of their employment from making deliveries to Interborough , the em-
ployer primarily involved in the labor dispute.
The provisions of Section 8 (b) (4), to the extent directly pertinent herein,
are as follows :
8 (b) It shall be an unfair labor practice for a labor organization or
its agents. . . .
(4) to engage in, or induce or encourage the employees of any employer to
engage in , a strike or a concerted refusal in the course of their employment
- to . . . transport or otherwise handle . . . any goods .. . . or to perform
16 Nor could it be, anymore than it could be disputed that a factory loft building housing
a tenant in a minor portion of its space constitutes the premises of the tenant.
903847-61-vol. 9 0-13 6
2146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any services, where an object thereof is: (A) forcing or requiring . . . any
employer or other person to cease . . . selling, handling, transporting . . .
the products of any other producer, processor or manufacturer, or to cease
doing business with any other person; . . . Provided, that nothing contained
in this subsection (b) shall be construed to make unlawful a refusal by any
person to enter upon the premises of any employer (other than his own
employer), if the employees of such employer are engaged in a strike ratified
or approved by a representative of such employees whom such employer is
required to recognize under this Act.
I
Directly involved in this case is the question of how the proviso to 8 (b) (4) is
to be construed. For, if, as the Respondent urges, the proviso excepts from the
scope of 8 (b) (4) (A) the particular conduct of which the General Counsel here
complains, that, alone, would be dispositive of the case. And it would make it
unnecessary to decide whether, absent the proviso, the conditions necessary to
spell out a, violation of Section 8 (b) (4) (A) have been met by the facts found.
The problem of decision in this case is not a simple one. The exact meaning
of the terms used in the proviso is somewhat obscured, at least at first blush ; and
so, too, is the precise relationship of the proviso to the general prohibitory legis-
lative language to which it is addressed., . And there are to date no Board or court
interpretations of the proviso to provide guidance.17
The meager legislative history casts some light on the proviso, but not enough
completely. to illumine. The Committee Reports contain but one specific reference
to the proviso, the debates none. That single reference is to be found in the Sen-
ate Committee Report, where it is said : 18
Attached to section 8 (b) (4) is a proviso clause, which makes it clear that
it shall not be unlawful for any person to refuse to enter upon the premises
of any employer (other than his own), if the employees of that employer are
engaged in a strike authorized by a union entitled to exclusive recognition.
In other words, refusing to cross a picket line or otherwise refusing to engage
in strike breaking activities would not be deemed an unfair labor practice
unless the strike is a "wildcat" strike by a minority group.
In seeking the congressional intent, it is helpful to begin by adverting briefly
to some basic principles of statutory construction. Thus, it is an elementary
rule . that "a statute should be construed so that effect is given to all its pro-
visions, so that no part will be inoperative and superfluous, and so that one part
will not destroy another unless the provision is the result of obvious mistake or
error." (Sutherland, Statutory Construction, 3d ed. § 4705.) The particular in-
quiry must be directed not to the abstract force of the words but to the sense in
which they were intended to be used in the Act. (Ibid, § 4706.) Where legal
terms are used in a statute, they are presumed to have been used in their legal
sense. (Ibid. § 4919.) "There is need to keep in view also the structure of the
statute, and the relation, physical and logical, between its several parts" (Dupar-
quet v. Evans, 297 U. S. 216, 218).
Perhaps the best approach to the problem is to examine , in the light of its rea-
sonableness and compatibility with the principles set out above, each of the pos-
37 The only case which thus far has reached the Board where the proviso may have been
involved is Oil Workers International Union and The Pare Oil Company, 84 NLRB 315.
That case , however, was decided upon different grounds, and the proviso was referred to
only in the dissent.
3s Sen. , Rept. No. 105 , 80th Cong., 1st Sess., p. 23.
NEWSPAPER AND MAIL DELIVERERS ' UNION OF N. Y. AND VICINITY 2147
sible interpretations of the proviso that has been argued or suggested. There are
three:
1. The first-representing the position taken by the General Counsel in his
brief-is that Congress was thinking merely of personal rights, and not rights
of labor organizations, when it used the term "person" in the proviso, and
that it intended, nothing more by the proviso than to reaffirm the right of an
employee as an individual to refuse to enter upon the premises of an employer
against whom ratified or approved strike action has been taken by an ex-
clusive bargaining representative. To support this view, the General Counsel
relies in his brief upon a single argument. Because-he argues-the proviso
uses the words, "other than his own employer," and because labor organiza-
tions do not have "employers," it follows that only individual rights could
have been contemplated. In short, the General Counsel would interpret the
proviso by giving literal, abstract force to certain words used, without reference
to the special sense in which the words were intended to be used in the Act,
and without regard to "the structure of the statute, and the relation physical
and logical" between the proviso and the section of the Act to which it is
attached. By this approach the General Counsel is able in his brief to ignore
Section 2 (1) of the Act, which defines "person" as including, inter alia, "labor
organizations." And he is able also to overlook that where Congress elsewhere
in the statute evinces an intent to reaffirm individual rights, it speaks in terms,
not of a "person", but of an "individual employee." 19
The General Counsel's proposed interpretation fails to meet the test of close
scrutiny in other respects as well. Thus, if in fact it was Congress' intent
simply to reaffirm fundamental individual rights, and nothing more, no reason
appears why it should have confined application of the proviso exclusively to
situations involving authorized strikes by majority representatives. In terms
of fundamental personal rights, as distinguished from legally protected con-
certed action, the "lawful" right of a person as an individual to refuse to enter
upon struck premises is no less where the strike is a "wildcat" one than where
it is an approved one; it is no greater where the strike is by a union entitled
to exclusive recognition than where it is by a union that is not. Congress
must be assumed to have been aware of this when it enacted the statute. More-
over, the General Counsel's proposed interpretation fails to explain on a ra-
tional basis the purpose of linking the proviso to a subsection of the Act which
neither restricts rights nor defines obligations of employees as individuals. The
only thing made "unlawful" under Section 8 (b) (4) is for a labor organization
or its agents to engage in certain defined unfair labor practices.20 If any in-
19 See Section 502, Labor Management Relations Act, 1947:
Nothing in this Act shall be construed to require an individual employee to render
labor or services without his consent, nor . . . make the quitting of his labor by
an individual employee an illegal act; nor shall [Court process issue] to compel the
performance by an individual employee of such labor or services. . . . [Emphasis
supplied.]
2° The general body of Section 8 (b) (4) does not, to be sure, use the term "unlawful."
However, Section 303, the companion section of the Labor Management Relations Act, 1947,
which provides for damage suits, uses that term in lieu of "unfair labor practice." That
section discloses on its face that the conduct referred to therein is to be deemed "unlawful,
for the purposes of this section only." In the course of the Senate debates, Senator Taft,
a sponsor of the legislation made it clear that he equated "unfair labor practice" as used
in Section 8 (b) (4) with "unlawful" as used in Section 303, and that the only purpose
in making the change in terminology was so "that a suit for damages could be brought for
this kind of thing." Senator Taft also noted, that "this amendment [Section 303] deals
2148 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
ference is warranted, therefore, it is that Congress intended to relate "unlaw-
ful," as used in the proviso, to "unfair labor practice," as used in the text of
the subsection of which it is part, and to equate those terms. That such was
indeed Congress' intent is proved by such legislative history as appears in that
point. It is made particularly apparent in the Senate Committee's explana-
tion of the proviso, quoted above, wherein it is explicitly pointed out that the
proviso was intended to make clear, for example, that a refusal to cross a
picket line "would not be deemed an unfair labor practice." 21 The contrary
interpretation suggested by the General Counsel can be reached only by reading
the proviso as if it existed in a vacuum rather than as an integral part of Section
8 (b) (4), by ignoring the statutory definition of the term "person," and by
giving the term "unlawful", a sense different from that which Congress intended
it to possess. Acceptance of the General Counsel's interpretation would leave
the proviso devoid of any real meaning or effect, and render it wholly superfluous
to the statutory scheme. It is not reasonable to suppose that such was Con-
gress' purpose or intent.
2. It has also been suggested, although not by the General Counsel, that the
term "unlawful" in the proviso should be interpreted as being synonomous with
unprotected concerted activity. This interpretation would hold that the proviso
should be read as protecting employees from reprisal action at the hands of their
employer for engaging in the particular form of concerted activity therein
described; but not as exculpating a labor organization, as such, from liability
for engaging in like activity, or for inducing or encouraging employees to do so.
The unreasonableness of this construction is readily demonstrable. Like the pro-
posed construction of the General Counsel previously considered, it fails to give
due consideration to "the structure of the statute and the relation, physical and
logical between its several parts"-more particularly, to the fact that the proviso
is attached to a subsection of the Act concerned primarily with union unfair
practices, and not, except perhaps derivatively, with employee rights protected by
Section 7. Besides, it clothes the term "unlawful" with a sense different from
that which, as the legislative history indicates, Congress intended that term to
possess. Moreover, acceptance of this suggested construction would lead to
curious, if not absurd, results. Thus for example, individual employees, who in
an appropriate situation had agreed among themselves not to enter upon the
premises of a struck employer, not their own, would be acting in protected con-
cert ; but if the same individuals, organized into a union, had undertaken like
action at an official union meeting, so as to make their action union action, their
union would be guilty of an unfair labor practice. Surely, in the absence of clear
evidence to the contrary-and there is none whatever-this may not reasonably
be taken to have been Congress' intent.
3. The third view-and the one I believe to be correct-is that the proviso was
designed to restrict the generality of Section 8 (b) (4) (A), by excluding from
the forms of concerted activity proscribed by that section, the particular type of
activity which the proviso defines. This construction is in harmony with the
wording of the proviso-if its key words are read, not in the abstract, but in their
legal sense as used in the statute and in context with the general language of
Section 8 (b) (4) (A). Thus, for reasons previously stated, the term "unlawful"
in the proviso is to be equated with "unfair labor practice." The term "refusal"
with labor organizations and the only unlawfulness is for a labor organization to do some-
thing" (93 Cong. Rec. 5060-5063; emphasis supplied).
21 And see, too, the preceding footnote.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y. AND VICINITY 2149
in the proviso must be viewed as related to "concerted refusal" in the body of
Section 8 (b) (4) ; for that is the only form of refusal with which the section
is concerned. The term "person" is to be read, in accordance with the statutory
definition , as including "labor organization" ; and within that term would also
fall employees for whose concerted activity a labor organization normally would
be responsible , because of acts of inducement and encouragement on its part. The
phrase "premises of any employer (other than his own )," considered in context
with Section 8 (b) (4) (A), is reasonably to be construed as having been designed
solely to identify the premises referred to as that of the "any other producer,
processor or manufacturer" or of the "any other person" of whom 8 (b) (4) (A)
speaks-in short, the premises of the employer involved in the primary dispute
in a secondary boycott situation which, but for the proviso, might otherwise be
construed to fall within the ban of 8 (b) (4) (A).
When the terms of the proviso are read in their statutory sense and in con-
textual relationship to the entire section, the conclusion seems almost unavoid-
able that the purpose of the proviso was to make clear that Congress intended
to exclude from the reach of Section 8 (b) (4) (A) the narrow form of concerted
activity which the proviso defines. The care with which Congress circumscribed
the proviso-confining its scope to concerted action localized at the place where
primary picketing and other direct strike activities normally occur," and
further limiting its application only to situations involving approved strikes-
lends added support to this conclusion. Unlike the other suggested interpreta-
tions above considered and rejected, the construction of the proviso here found
to be correct is entirely consistent with-indeed it is reinforced by-the legisla-
tive history adverted to above. Unlike the others, it achieves, a logical concord
between the proviso and the balance of the section of which it is part. And it alone
gives rational meaning and operative effect to the provisions of the proviso,
without otherwise creating conflicts in the statutory scheme.
It appearing to my satisfaction that the proviso must be construed as above
indicated, I conclude and find that the Respondent's conduct, of which the
General Counsel here complains, clearly falling, as it does, within the compass
of the proviso, was not violative of Section 8 (b) (4) (A).23
II
Wholly aside from the proviso, the Board's decision in The Pure Oil Companj
case, supra, suggests another reason why the complaint in this proceeding must
be dismissed. In that case, a striking union directed so-called "hot cargo"
letters to another union representing employees of another employer uncon-
cerned in the primary dispute. The letters successfully appealed to the other
union to respect the striking union's picket lines at the premises of the primary
employer, by refusing to accept cargo at that point. In holding that Section
22 Cf. Oil Workers International Union, Local Union 346 ( CIO) and The Pure Oil Com-
pany, supra ; United Electrical, Radio and Machinery Workers of America and Ryan Con-
struction Corporation , 85 NLRB 417.
23 In reaching this conclusion , I have considered , although the point has not been urged,
that the Respondent 's conduct , in inducing employees of newspaper publishers to refuse'
to make deliveries to Interborough newsstands, may have been violative of the Respondent's
contract with such publishers . Merely because , under the doctrine of N. L. R. B. v. Sands
Mfg. Co., 306 U. S. 332, the employees may not have been protected at the time from
disciplinary measures by their employer for having engaged in concerted action in violation
of the contract, or because their union may have been subjected to civil liability therefor,
it does not follow , and it cannot be held, that these circumstances converted into an unfair
labor practice conduct that has not been made so under the Act.
2150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (b) (4) (A) had not been violated, the Board pointed particularly to the fact
that the letters were appeals to refuse to perform services only at the premises
of the primary employer; emphasized that "the appeals contained in the letters,
no less than the appeals inherent in the [primary] picketing ... amounted to
nothing more than a request to respect a primary picket line at the Employer's
premises"; and concluded that this was traditional primary strike action outside
the purview of 8 (b) (4) (A).
On principle, it is difficult to distinguish the instant case from Pure Oil. Here,
as in Pure Oil, the employees of the other employers (the newspaper publishers
and distributors) were induced and encouraged to do nothing more than to refuse
to perform services only at the premises of the employer (Interborough) in-
volved in the primary dispute. The fact that in the one case the appeal took
the form of a letter, and in the other, the form of personal communication by
union representatives, provides, in my opinion, an insubstantial basis for dis-
tinction. Nor do I consider it a material point of distinction that in the instant
case there was no actual picketing of a substantial number of Interborough's
subway stands which the employees of other employers were induced not to
serve. The significance of a picket line lies in the fact that it serves as notice
of a dispute at the place being picketed. But it is not necessary that each and
every entrance to struck premises be picketed in order to convey notice that the
premises as a whole are strike-bound. In this case the employees delivering
newspapers were actually on notice through other means that the Respondent
had resolved to picket Interborough's entire Independent Subway System oper-
ations, and, though pickets were actually posted at only certain subway entrances,
the employees could properly view the remainder of the entrances as likewise
out of bounds in the eyes of the striking union. In any event, the Pure Oil
principle does not turn on the existence of actual picketing. What is made con-
trolling in that case is that the action induced and encouraged was confined
to a refusal to perform services only at the premises of the primary employer-
and that precisely was the situation here.
Finally, no valid distinction is to be found in the fact that in Pure Oil the
striking union directed its appeal to members of another union over whom it had
no control, whereas in the instant case the employees who were told not to make
deliveries on the premises of the primary employer were members of the striking
union, and, as such, subject to its direction and control. The Board in the
Wadsworth case 4 has already settled the principle that inducement and en-
couragement are not to be defined in terms of restraint and coercion, but are
to be given their broad generic meaning unlimited by Section 8 (c). It would
thus appear irrelevant that implicit in the Respondent's conduct in this case
there may have been the power to enforce action, but none in the Respondent's
conduct in the Pure Oil case.2G And, surely, it is not reasonable to assume that
Congress intended to allow a striking union to induce members of another union,
whose economic interest in the primary dispute was at best remote, to refuse
to perform services at the struck employer's premises, but, at the same time, to
forbid the striking union to induce to like action its own members, who, though
¢a United Brotherhood of Carpenters t Joiners and Wadsworth Building Company, Inc.,
81 NLRB 802.
21 To hold otherwise would mean, for example , that even primary picketing activity for
a legitimate objective would be illegal under Section 8 (b) (1) (A), if the struck employer
normally received deliveries from employees of other employers , who were members of-the
striking union, and , as such , subject to union sanctions for crossing picket lines established
by their union.
NEWSPAPER AND MAIL DELIVERERS ' UNION OF N. Y. AND VICINITY 2151
employed by other employers, have a far more direct economic interest in aiding
their fellow union members in. protecting the work standards of their trade. .
It is found upon the record as a whole that the Respondent has not violated
Section 8 (b) (4) (A) of the Act. It will, accordingly, be recommended that
the complaint herein be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and. upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. Newspaper and Mail Deliverers' Union of New York and Vicinity, unaffili-
ated, is a labor organization within the meaning of Section 2 (5) of the Act.
2. Interborough News Company is engaged in commerce within the meaning .
of Section 2 (6) and (7) of the Act.
3. Newspaper and Mail Deliverers' Union of New York and Vicinity, the Re-
spondent herein, has not engaged in unfair labor practices within the meaning
of Section 8 (b) (4) (A) of. the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the complaint against
Newspaper and Mail Deliverers' Union of New York and Vicinity be dismissed
in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such excep-
tions to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together,
with the original and six copies of a brief in support thereof; and any party
may, within the same period, file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements .of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be legi-
bly printed or mimeographed, and, if mimeographed, shall be double spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said Sec-
tion 203.46, should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days
from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions , recommendations , and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 29th day of November 1949.
ART$ua Lrn',
Trial Examiner.