Newspaper And Mail Deliverers' Union Of New York And Vicinity (Hudson County News Co.)

National Labor Relations Board - Board Decisions

May 18, 1990

298 N.L.R.B. 564 (N.L.R.B. 1990)

564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Newspaper and Mail Deliverers ' Union of New York
and Vicinity (Hudson County News Co.) and
Independent Marketing Service and Suburban
Wholesalers ' Association, Party to the Contract.
Case 22-CE-58
May 18, 1990
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OvIATT
On July 5, 1984, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The
Union filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings , findings,' and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that Respondents Hudson
County News Co. (Hudson) and Newspaper and
Mail Deliverers' Union of New York (the Union)
violated Section 8(e) of the Act by executing and
enforcing a "Clarification of Jurisdiction" letter
that prohibits subcontracting. For the reasons set
forth below we disagree.2
Hudson is one of several wholesalers of maga-
zines and newspapers in New York City and north-
ern New Jersey. Though the record does not pur-
port to provide a comprehensive picture, it does
contain some facts regarding the general operation
of the industry in the area. A wholesaler like
Hudson receives periodicals from publishers or
from a publisher's national distributor and then dis-
tributes them to retailers in its geographic operat-
ing area. Often, a wholesaler is the sole source of a
particular publication in its geographic area. For
example, Hudson has the exclusive right to distrib-
ute all TV Guides within its area.
Hudson's drivers are represented by the Union
and Hudson belongs to the Suburban Wholesalers
Association, a multiemployer group that negotiates
' The Union has excepted to some of the judge's credibility findings
The Board 's established policy is not to overrule an administrative law
judge's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
2 On January 8, 1985, the Charging Party filed a motion to withdraw
the charge in this case and to dismiss the complaint and vacate the
judge's decision . The motion was opposed by Counsel for the General
Counsel. On February 26, 1985, the Board denied the Charging Party's
motion
with the Union.3 The recognition clause of the par-
ties' collective-bargaining agreement describing the
unit employees' jurisdiction is broad, including "All
work in the delivery and handling of newspapers,
magazines, periodicals . . . ."4 Hudson and the
Union have been parties to a collective-bargaining
relationship for over 35 years and the recognition
clause has remained the same throughout. Union
Business Agent Joseph Cotter, in describing the
unit work, testified that,
[We] take it off the truck. It's then broken
down into dealer's by invoice, the amount that
each dealer takes, we then count out the
amount of the product, we wire it, we load it
on to the trucks, we serve it, we collect for it,
and pick up returns.
Hudson Vice President Bertram Kersen confirmed
that the recognition clause covered the distribution
of all periodicals to retail outlets and that the rec-
ognition clause placed no limitation on the unit em-
ployees' work jurisdiction based on how many
copies a retailer sold per time period, nor did it
limit the unit employees' work jurisdiction based
on the location of a retailer in a "depressed" area,
if it was within the wholesaler's geographic operat-
ing area . In this case, Hudson 's geographic operat-
ing area includes northern New Jersey, Manhattan,
portions of Brooklyn, the Bronx, Yonkers, and por-
tions of Staten Island.
Hudson's practice was that publications would
be sold to low-volume retailers by Hudson's "cash
desk," which has been in existence for many years.
Kersen testified that the cash desk sells, on a cash
basis, to small accounts that wish to specify the
titles and numbers of publications they want with-
out being subject to regulation by Hudson. Hud-
son's unit employees receive and deliver to the
3 The Union also negotiates with a multiemployer group of area pub-
lishers. Union President Murray Schwartz testified that the publishers'
collective-bargaining agreement provides the model for the wholesalers'
agreement.
4 The entire recognition clause describes the work of the drivers unit
represented by the Union as:
All work in the delivery and handling of newspapers , magazines,
periodicals, publications and merchandise in the operations per-
formed by the following: route men, recovery men, Canada men,
distributors and tiers, chauffeurs, bookmobile operators , relay men,
carriers , delivery of advances, wrapper writing and pasting of labels
on wrappers (except the shipping and reorder slips), the picking up
of returns from newsdealers if provided however, that present prac-
tice in connection with wrapper writing may continue , insertion of
newspapers, putting of labels in racks and same are to be delivered
by Wholesalers' trucks to the Publishers, check-up promotion work
and collections , limited, however, to the area presently served by
this company , magazine return pick up, sorting, stripping and bun-
dling of newspapers , and receiving of magazines. All initial distribu-
tion, reorder , and other delivery from the plant of pocket size books,
newspapers and magazines by hand, truck, station wagon or any
other vehicle except for normal delivery adjustment between dealers
for promotion purposes and the present practice of collection.
298 NLRB No. 76
NEWSPAPER & MAIL DELIVERERS (HUDSON NEWS) 565
cash desk the publications that the cash desk sells.
Thus, concerning those customers who purchase at
the cash desk, the unit employees do not perform
the deliveries. Union Business Agent Cotter testi-
fied without dispute that there is no (secondary)
level of distribution between the wholesaler and
the retail outlet. Cotter also testified that whether a
wholesaler has work done directly or indirectly,
that work is unit work. Specifically, he testified the
agreement does not allow a publisher to "drop off"
to a "hustler" instead of a wholesaler. (A "hustler"
or "bootlegger" purchases periodicals from a
wholesaler like Hudson and then sells to small ac-
counts. See fn. 6 infra.)
The alleged violation of Section 8(e) stems from
a 1982 Clarification of Jurisdictional Recognition
letter. Both Union President Schwartz and Hudson
Vice President Kersen testified that even before the
clarification existed, the parties understood their
contract's recognition clause to prohibit subcon-
tracting unit work. In 1982, however, the Union
discovered that a newspaper publisher was subcon-
tracting unit work. The Union brought this to the
attention of the other members of the Publishers
Association, who agreed that the conduct violated
their contract's recognition clause . The Union
asked the publishers to formalize their understand-
ing in writing and they agreed. A clarification
letter explicitly prohibiting subcontracting was
signed. Pursuant to its usual practice, the Union
then proposed to the Wholesalers Association that
the same letter be incorporated into their contract.5
Because the wholesalers agreed that their contract
already prohibited subcontracting, the same Clarifi-
cation of Jurisdictional Recognition letter was
signed in 1982 , stating:
The Suburban Wholesalers Association and
the Morning Newscompanies Association and
each member of the association hereby con-
firms that the Newspaper and Mail Deliverers'
Union is recognized exclusively as bargaining
representative for employees performing all
work described in the jurisdictional provisions
of each collective bargaining agreement and
agrees that no Wholesaler or News Company
shall subcontract any bargaining unit work.
In the summer of 1983, the Union learned ' of
conduct that it believed violated the wholesalers'
contract and the clarification letter. The Union's
chapel chairman at Hudson told Business Agent
Cotter that unit members suspected that Hudson
5 Business Agent Cotter confirmed that the letter originated with the
publishers' contract and then was added to, the wholesalers' contract He
added that the Union had had problems with unspecified bootleggers
who served customers that unit employees are contracted to serve
was not receiving all the TV Guides that Hudson
was purchasing. As the unit employees were enti-
tled to receive the magazines Hudson purchased,
the Union believed that this violated the contract.
An investigation by Cotter indicated that some TV
Guides were not being unloaded from the publish-
er's truck at Hudson's facility, but were being
"transshipped" to a facility owned by Haber. At
first, Hudson Vice President Kersen denied the
Union's allegation but he later determined that part
of Hudson's shipments were going to Haber.6 It
appears that in 1980, Haber, in the name of ISI,
Inc., 7 executed an agreement with Hudson that
stated:
Whereas, ISI, Inc. wishes to sell and promote
the sale of TV Guide as well as certain other
magazines and publications on behalf of Hud-
son's customers and accounts. . . . Hudson
hereby appoints ISI, Inc. as its exclusive Sales
Representative to sell and promote the sale of
TV Guide and other titles to those retail cus-
tomers and accounts on Schedule A attached
hereto.8
In September or October 1983, Union Business
Agent Cotter informed Hudson that its dealings
with Haber violated the Clarification of Jurisdic-
tional Recognition letter executed by the Union
and two multiemployer associations in 1982 in
which Hudson, as a member of one of the associa-
tions, agreed not to subcontract any bargaining unit
work. Hudson and the Union agreed to arbitrate
the matter. Pending arbitration, Hudson and the
Union reached an interim agreement, that Hudson
would cease transshipping to Haber, who would
use Hudson's cash desk.
The arbitration hearing was held on November
23, and the arbitrator's decision was issued on No-
vember 29, 1983. The arbitrator found that Hudson
breached its uo-subcontracting agreement with the
6 Haber, who owns and operates three companies including the Charg-
ing Party, described his business as a "hustler ." A hustler receives a pub-
lication from a source such as Hudson , sohcits accounts , and delivers
them, making a profit on the difference between the sales and purchase
price . Haber began purchasing "very small" amounts of TV Guides from
Hudson's cash desk in 1978. Uaber's volume of business grew significant-
ly and, in 19S0, Hudson begat extending Haber credit rather than requir-
ing cash payments . Under this new arrangement-and contrary to Hud-
son's normal practice of receiving its TV Guide order from the publisher
and having its drivers deliver to its New York City and New Jersey cus-
tomers-the TV Guides Haber purchased from Hudson were shipped di-
rectly from the publisher to Haber. Hudson was still billed for all the TV
Guides and then billed Haber for his portion . Haber acknowledged that
Hudson had extended up to $104,000 of credit to him At the hearing,
Kersen testified that Hudson had no transshipment arrangement with
anyone but Haber.
7 Although the record provides references to ISI , Inc., it is clear that
ISI is a single proprietorship.
$Schedule A was purportedly a list of Hudson 's customers Credited
testimony establishes that no Schedule A was ever attached to the con-
tract.
566 DECISIONS OF THE NATIONAL LABOR-RELATIONS BOARD
Union by selling and facilitating the delivery of
periodicals to Haber.9 The arbitrator recognized
that selling was not subcontracting per se, but con-
cluded that the letter was intended to bar both
practices. Thereafter, Hudson ceased supplying
Haber and Haber filed this charge.
There was also an arrangement between Hudson
and Haber regarding the Village Voice (The
Voice), which appears similar to the transshipment
of TV Guides.' ° In 1981, Select Magazine, The
Voice's national distributor, ceased doing business
with its New York City area distributor, Greg
News, and offered the distribution work to
Hudson. Hudson agreed to buy and be billed for
The Voice for Manhattan, the Bronx, and northern
New Jersey. Hudson treated The Voice copies des-
tined for New Jersey in its usual manner, receiving
and delivering them using unit employees . Hudson
arranged for copies destined for Manhattan and the
Bronx to be transshipped directly to Haber. By
having the Manhattan and Bronx copies of The
Voice delivered directly to Haber, Hudson was
able to make a profit on those copies without in-
curring any labor costs. A corollary, however, of
transshipment to Haber and delivery by his sales-
men is that it denies that work to Hudson's unit
employees. 11
Hudson Vice President Kersen testified that
Hudson chose not to deliver The Voice to Manhat-
tan and the Bronx because it arrives "too late" and
Hudson would have to "hold up" delivery trucks
leaving for New York City. He acknowledged,
however, that all that Hudson would have to do to
deliver to the city would be to reschedule the de-
parture time of its trucks and stated that the only
factor preventing it from doing so was the "eco-
nomics" of it.
Section 8(e) of the Act makes unlawful the exe-
cution or enforcement of an agreement between a
labor organization and an employer that requires
the employer to cease or refrain from doing busi-
ness with another employer or person. Although
broadly worded, Section 8(e) was not intended to
prohibit a labor organization from executing or en-
forcing such an agreement when its objective is to
preserve for its members bargaining unit work or
to reacquire work previously performed or other-
9 No party contends that the Board should defer to the arbitrator's
award.
10 There is no testimony regarding precisely when the Union learned
of The Voice transshipment arrangement but it was discussed in the arbi-
trator's decision.
11 Hudson regularly delivers periodicals , including weeklies like The
Voice, in Manhattan and the Bronx and there is no dispute that, as Union
President Schwartz testified, the work involved in the delivery of The
Voice is "identical" to the work involved in delivering other periodicals,
that it "is just a different publication."
wise fairly claimable.' 2 This is considered a pri-
mary objective and is lawful. When the intent of
the agreement, or the labor organization's objective
in enforcing it, is "secondary," the agreement vio-
lates the Act. A secondary object is evident when,
for example, the labor organization seeks to force
the noncontracting party to recognize the labor or-
ganization or where the work involved is not fairly
claimable. Fairly claimable work is work that is
identical to or very similar to that already per-
formed by the bargaining unit and that bargaining
unit members have the necessary skill and are oth-
erwise able to perform.
The Union asserts that it was attempting to pre-
serve bargaining unit work and thus did not violate
the Act. It contends that the distribution of Hud-
son's product was the contractual work of its mem-
bers and that sale to Haber deprived members of
extra routes and shifts.
The administrative law judge found that the
Union's argument extended the agreement to all
subcontracting and sales to secondary wholesalers
and that the Union was attempting "at least partial-
ly to acquire work it never previously had." He
reasoned, therefore, that the Union's purpose in
proposing the clarification letter and enforcing it
was to force Hudson to cease doing business with
Haber and other secondary wholesalers, and so
cause Hudson to pick up former customers of
Haber and thereby acquire work it never had. The
judge rejected the Union 's argument without iden-
tifying the traditional scope of the bargaining unit's
work as evidenced by the contractual recognition
clause and the history of the parties' conduct under
it. That examination is essential in this kind of case.
Teamsters Local 282 (D. Fortunato), 197 NLRB
673, 675 (1972). On examining the evidence, we
conclude that the parties' collective-bargaining
agreement and practice gives the unit employees
the right to handle all publications from their re-
ceipt from the publishers to their delivery to the
ultimate retailers.' 8
The only evidence of conduct contrary to the
recognition clause was Hudson's relationship with
Haber regarding TV Guide and The Voice, which
Hudson acknowledged was one-of-a-kind.' 4 The
12 National Woodwork Mfrs. v. NLRB, 386 U S 612 (1967), and NLRB
v. Longshoremen ILA, 447 U S 490 (1980). See generally Plumbers Local
342 (Conduit Fabricators), 225 NLRB 1364, 1365 (1976).
18 The only exception to this is the practice whereby small accounts
are serviced through the cash desk and even those periodicals are re-
ceived by the unit employees and delivered to the cash desk.
14 The judge referred to Haber's business as a "secondary wholesaler"
and appeared to assume that such a business had a traditional position
within the (primary) wholesalers ' operation that was consistent with the
(primary) wholesalers' collective-bargaining relationship with the Union.
Although several witnesses used the term "secondary," Business Agent
Continued
NEWSPAPER,&_MAIL DELIVERERS (HUDSON NEWS) 567
General Counsel provided no evidence that` the
Union was aware of the transshipment arrangement
before mid-1983, let alone acquiesced in it. On
learning of the TV Guide arrangement, the Union
promptly demanded that Hudson comply with its
contractual obligations.15 There is no evidence that
the Union had any secondary object such as repre-
senting Haber's employees. 16
The Clarification of Jurisdictional Recognition
letter extends only to the subcontracting of bar-
gaining unit work. On the facts presented here, we
conclude that Hudson's arranging the transship-
ment of copies of TV Guide and The Voice to
Haber violated its agreement with the Union by
circumventing its obligation to use bargaining unit
employees for this work. These arrangements with
Haber affected the traditional work of unit employ-
ees and the Union acted lawfully in seeking to re-
strain this practice.
Given our holding regarding the unit employees'
traditional work jurisdiction, we find it nondeter-
minative whether the testimony before the arbitra-
tor was accurate that a "Schedule A" or delete list
for Hudson's customers was forwarded to Haber in
the Hudson/ISI, Inc. contract. Although Haber
and Kerson credibly denied in the present hearing
that such a list was given to Haber, the
ISI/Hudson contract referred to the list, and the
Hudson official stipulated to the arbitrator that
such a list had been delivered. We note that it was
Cotter's uncontradicted testimony was that there was no level of distribu-
tion between a wholesaler and retailers. Therefore, we find that there is
no support , for any such assumption.
15 As noted (fn. 10 supra), the record evidence indicates that the Union
learned of The Voice transshipment arrangement after it learned of the
TV Guide arrangement and promptly placed the facts regarding The
Voice before the arbitrator.
The instant case is distinguishable from Newspaper & Mail Deliverers (B
& W Distributors), 274 NLRB 929 (1985), in which the Board affirmed
the administrative law judge's finding that the Union violated Sec. 8(e).
In B & W Distributors , the Union , relying in part on a letter of agree-
ment identical to the Clarification of Jurisdictional Recognition letter in
this case , entered into an arrangement with Irish Echo whereby Irish
Echo ceased using B & W to pick up its newspaper from the printer and
to deliver the paper to distributors . The union, which had a collective-
bargaining relationship with one distributor of the paper, Metro, but not
with Irish Echo, the printer, or B & W, had not performed the disputed
work for 10 years when it claimed the work and entered into the ar-
rangement with Irish Echo. Consequently, the union was deemed to have
waived any claim to the work that it might have had earlier. The Union
accomplished its unlawful objective, i.e, acquisition of the work, by
threatening to and actually ordering the Metro employees it represented
to refuse to distribute the newspaper to retailers. The administrative law
judge in B & W Distributors pointed out that Metro, the employer with
which the'Union had a collective-bargaining relationship, had no author-
ity to assign the disputed work to union-represented employees and that
Irish Echo, with which the union had no bargaining relationship, had as-
signment authority. Further, in addition to the union 's having waived the
work, neither B & W nor Irish Echo was a subcontractor of Metro. In
contrast, Hudson has a collective-bargaining agreement with the Union,
and the work itself has traditionally been performed by Hudson employ-
ees whom the Union represents.
25 Haber and Business Agent Cotter each testified about a dispute be-
tween the 'Union and Haber in 1981. Their testimony in this regard, how-
ever, fails to characterize the dispute
on the latter evidentiary basis that the arbitrator
made his determination, which is now alleged as
unlawful. Hudson Vice President Kerson testified
that the recognition clause of the collective-bar-
gaining agreement encompassed, the distribution of
all periodicals to retail outlets. Union President
Murray Schwartz testified similarly that the distri-
bution of Hudson's periodicals was "contracted to"
the Union. Further, Cotter testified that agreement
on the Clarification of Jurisdictional Recognition
letter was sought because the Union learned that
certain employers who were party to the collec-
tive-bargaining agreement were deleting customers
from their routes but continuing to service those
customers by giving their names to bootleggers. It
is precisely this conduct that the Union and even
Hudson's officers believed at the time of the arbi-
tration that Hudson and Haber engaged in by exe-
cuting the ISI contract. In the circumstances of
this case, it is immaterial why Hudson sought to
delete direct deliveries to customers or whether a
list of deleted customers was actually transmitted.
Such work was traditional bargaining unit work
and Hudson, as the exclusive source of distribution
of TV Guide and the "guarantor" for Haber's dis-
tribution of The Voice, had ongoing involvement
in the distribution of these periodicals through
Haber. Accordingly, this is not simply a case
where one distributor eliminates part of its business
and another distributor independently begins to
service former customers of that other distributor.
In the present circumstances, the Union cannot be
said to have acted unlawfully in seeking the preser-
vation of this work.
In finding a secondary motive, the judge placed
undue reliance on Cotter's testimony concerning
the solicitation of new accounts in the geographic
area served by Hudson. However, Cotter drew a
distinction between accounts served by distributors
that received publications from sources other than
union wholesalers and those served by distributors
that received product from union wholesalers such
as Hudson. Both Cotter and Schwartz testified that
Haber would be doing bargaining unit work if he
distributed publications received from Hudson or
another union wholesaler. The union officers also
stated that if Haber purchased his publications from
the publisher, then the Union might attempt to or-
ganize his business. The distinction is important be-
cause it comports with the parties' understanding
of the scope of the jurisdictional provision of the
collective-bargaining agreement. Despite the sever-
ity of the impact on Haber of enforcing the no-sub-
contracting agreement, the Union and Hudson
acted lawfully in executing that agreement and the
Union acted lawfully in seeking to retain for em-
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees in the Hudson unit the distribution of pub-
lications purchased by Hudson.17
We do not find it significant that The Voice had
been distributed by Greg News before it was of-
fered to Hudson. In National Woodwork, supra at
644-645, the Supreme Court stated:
The determination whether the [challenged
contract provision] . . . violated § 8(e) . . .
cannot be made without an inquiry into
whether, under all the surrounding circum-
stances, the Union's objective was preservation
of work for [the contracting employer's] em-
ployees, or whether the agreements . . . were
tactically calculated to satisfy union objectives
elsewhere .... The touchstone is whether
the agreement or its maintenance is addressed
to the labor relations of the contracting em-
ployer vis-a-vis his own employees.
As we have found, the recognition clause and
the parties' conduct under it show that the unit em-
ployees' traditional work jurisdiction was over
"all" Hudson's publications. This is further sup-
ported by Union President Schwartz' undisputed
testimony that the contract required Hudson to
inform the Union when it received a new publica-
tion so that arrangements could be made for its de-
livery. We find that the Union's action when it
learned that Hudson was handling The Voice for
Manhattan and the Bronx but having it trans-
shipped to Haber (as it was with TV Guide) was
with the object of preventing Hudson from siphon-
ing off the unit employees' work, a primary and
lawful objective.1S
17 NLRB v. Longshoremen ILA, supra.
16 Because we have found that the handling of TV Guide and The
Voice falls squarely within the unit employees ' traditional work junsdic-
tion, the result here does not turn on whether the work is fairly claim-
able. In any event , a fairly claimable analysis would support our conclu-
sion that the Union's objective was primary and lawful. We note that
Hudson was the exclusive wholesale distributor of TV Guide in its geo-
graphic area . We note further that the delivery of The Voice was not
merely similar to, it was identical to, the delivery of other publications
that unit employees have traditionally done and currently do in Manhat-
tan and the Bronx . Hudson itself delivered The Voice using unit employ-
ees in New Jersey. See Retail Store Employees Local 876 (Allied Super-
markets), 174 NLRB 424 (1969), in which enforcement of a contract
clause prevented the employees of product-suppliers from shelving cer-
tam brand-named grocery products. The unit employees had never
shelved those named products but had performed the same work on simi-
lar products in the same store . In finding a primary work-protection
object, the Board stated
To define unit work narrowly according to the supplier or newness
of the product would effectively deny the [union] any remedy for
piecemeal reduction and potential elimination of unit work . the
fact that [unit employees] may not have performed the shelving tasks
on these particular brands . . . is not dispositive . For the record
shows that [unit employees] have handled the in-store shelving and
servicing tasks on the bulk of the grocery merchandise carried by
Respondent supermarkets 174 NLRB at 425
Thus, the fact that The Voice's publication schedule did not fit with
Hudson's existing delivery schedule is not determinative of whether it
would be fairly claimable as unit work Nor does the record support a
finding that Hudson unit employees ' work was limited to a list of publics-
On the basis of all of the foregoing, we reverse
the judge's finding that Hudson and the Union vio-
lated Section 8(e) of the Act by effectuating and
enforcing the Clarification of Jurisdictional Recog-
nition letter. Accordingly, we shall order that the
complaint be dismissed.
ORDER
The complaint is dismissed.
tions that Hudson had at the time the parties ' recognition clause was first
signed. Cf. Teamsters Local 282 (D. Fortunato), supra. In Fortunato, the
employees represented by Local 282 had not traditionally performed an
entire type of work allegedly being protected for them, i.e., the driving of
subcontractors' employees on a construction site, work that traditionally
had been performed by nonunit employees . There was also independent
evidence that Local 282's conduct had a secondary object . In those cir-
cumstances, an 8(e) violation was found notwithstanding that the truck-
driving skills involved were the same.
Bernard Suskewicz, Esq., for the General Counsel.
Marshall E. Lippman, Esq. (Lippman & Lippman), for the
Respondent.
Robert Sylvor, Esq. (Bandler & Kass), for Hudson County
News Co. and Suburban Wholesalers' Association.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITz , Administrative Law Judge. This
case was tried before me in Newark, New Jersey, on
February 13 and 14 and April 12, 1984. The complaint
and notice of hearing issued on December 29, 1983,1 and
was based upon an unfair labor practice charge filed on
December 2 by Independent Marketing Service (IMS).
The complaint alleges that Hudson County News Co.
(Hudson), and Newspaper and Mail Deliverers' Union of
New York and Vicinity (the Union) violated Section 8(e)
of the Act by entering into, maintaining, and giving
effect to an agreement whereby Hudson ceased, and
agreed to cease and refrain from , doing business with
any other employer or person. Hudson is a member of
Suburban Wholesalers' Association (the Association).
Based on the entire record, including the briefs, I make
the following findings.
1. JURISDICTION
Respondent Hudson, a corporation with an office and
place of business in North Bergen, New Jersey (Hud-
son's facility), is engaged in the distribution of magazines
and newspapers. During the calendar year 1983, Re-
spondent Hudson sold and shipped from its facility goods
valued in excess of $50,000 directly to points outside the
State of New Jersey. Hudson and the Union admit, and I
find, that Hudson is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
1 Unless indicated otherwise , all dates hereinafter refer to the year
1983.
NEWSPAPER &.MAIL DELIVERERS (HUDSON NEWS) 569
II. LABOR ORGANIZATION STATUS
Hudson and the Union admit, and I find , that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE FACTS
Hudson distributes newspapers and periodicals in the
New Jersey and New York metropolitan area; it is an
operation sometimes referred to as a primary wholesaler.
This matter arose from disagreements the Union had
with Hudson over Hudson's business relationship with
Michael Haber. Haber's operations were referred to at
the hearing as a hustler, a secondary wholesaler, and, by
the union witnesses, as a bootlegger. Since commencing
operations in 1978 his business has increased from total
sales of 144 copies of TV Guide to approximately 6000
TV Guides (plus other periodicals) sold to approximately
2000 customers in the five boroughs of New York,
Hudson, Newark and Essex County in New Jersey.
These customers are primarily small customers (low-bill-
ing accounts) in high crime areas; in addition to news-
stands , they often comprise Laundromats and grocery
stores. The nature of the indusilry is that a vast majority
of the successful periodicals (such as TV Guide) will sell
their product to only one wholesaler in an area; every-
body else, no matter how large, must then purchase the
periodical from that wholesaler. In that regard, Haber
testified that he has contacted the publishers of TV
Guide and Penthouse, as well as other periodicals, in an
attempt to purchase them directly; they refused his re-
quest. Haber therefore purchases all, or substantially all
of his periodicals from Hudson. Almost all of Hudson's
employees are represented by the Union; Haber's em-
ployees (it appears that they are driver- salesmen, inde-
pendent contractors) are not, represented by the Union,
or any union.
Haber operates a number of companies; Independent
Marketing Service (IMS), is a single proprietorship locat-
ed at 536 Gregory Avenue in Weehawken, New Jersey.
It is engaged in distributing magazines, primarily TV
Guide, to stores and other customers in the above-de-
scribed area. No separate tax return is filed for IMS; it is
part of Haber's personal return . IMS is not billed by
Hudson for products sold to Haber; however IMS does
maintain a checking account and sometimes pays Hud-
son's bills to Haber. ISI, located at the same address, is
also a single proprietorship formed to purchase and resell
in quantity magazines and newspapers. ISI, like IMS,
does not receive bills from Hudson, but does maintain a
checking account and, on occasion, like IMS, pays
Hudson for publications sold to Haber. The ISI tax
return, is also consolidated with Haber's personal return.
The Book Worm is a sole proprietorship that is owned
solely by Haber's wife, Lois Fay Haber. The Book
Worm is the entity that Hudson bills for Haber's pur-
chases and it also maintains a checking account, which,
on occasion, pays these bills. Which entity pays which
bill depends upon "Where I have money." With ISI,
Haber is the only authorized signature on the checking
account; with IMS, both he -arid his wife are authorized
signatures; on the Book Worm, his wife is the primary
signature, and he is the secondary signature. When the
drivers collect from his customers, they deposit the
money in the bank account that is most convenient,
whether, it is the name of IMS, ISI or the Book Worm.
Prior to the fall of 1983, the TV Guides were deliv-
ered to Haber's facility in Weehawken directly from
Lancaster, Pennsylvania, by interstate truckers who were
not members of the Union, without being routed through
Hudson's facility. Hudson paid TV Guide for these ship-
ments and Hudson, in turn, billed, and was paid by,
Haber for these shipments. In about the fall of 1983 the
Union began objecting to this arrangement, alleging that
it took work away from its members . In support of its
position the Union cited its contract with the Associa-
tion, and an agreement between the parties in the form
of a letter from the Association to the Union. It is enti-
tled: "Clarification of Jurisdictional Recognition" and, al-
though undated, was agreed upon in about 1982; it states:
The Surburban Wholesalers Association and the
Morning Newscompanies Association and each
member of the associations hereby confirms that the
Newspaper and Mail Deliverers ' Union is recog-
nized exclusively as bargaining representative for
employees performing all work described in the ju-
risdictional provisions of each collective bargaining
agreement and agrees that no wholesaler or News
Company shall subcontract any bargaining unit
work.
Bertram Kersen, executive vice president of Hudson,
testified that in the fall of 1983, Joseph Cotter, the
Union's business agent , told him that Hudson was in vio-
lation of the contract in its dealings with Haber and
there was a possibility of a job action. Cotter testified
that at about this time he had a meeting with Kersen
where he informed him that the Union was concerned
that the entire order of TV Guide purchased by Hudson
was not going to Hudson and the Union was losing jobs.
The Union later learned that some of this order was
being delivered directly to Haber from TV Guide by
nonunion members.
As a result of this disagreement, an arbitration was
scheduled to determine whether Hudson's sales to Haber
violated its contract with the Union. Pending this arbi-
tration, an-interim change was made in Hudson' s sale and
delivery of TV Guide to Haber. Direct delivery was dis-
continued; the TV Guides destined for Haber were de-
livered to, and unloaded at, Hudson 's premises , and were
reloaded onto a rented truck driven by a Hudson union
driver; they were then delivered to Hudson's cash sales
counter in the Bronx, which is operated by Hudson to
sell magazines and periodicals to small dealers on a cash
basis. Haber then picked up the TV Guides at this loca-
tion, and transported them to his Weehawken facility.
On November 23, an arbitration hearing took place. At
this arbitration the parties (representatives of Hudson and
the Union) stipulated that in February 1980, when
Hudson consolidated its accounts and eliminated about
400 of its smallest customers (total business of $10 or less
a week), it gave Haber a list of these dealers, whom he
began to service. On November 29, the arbitrator issued
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his decision wherein he found that Hudson violated the
contract by selling directly to Haber and by facilitating
the delivery of products to him for resale to retailers.
The arbitrator ordered Hudson to cease and desist from
these activities.
Other than the above-described business relationship,
there is no connection between Hudson and any of
Haber's companies; Hudson owns no part of these com-
panies and provided no financial support for the creation
or the maintenance of these companies, except for a
rather large credit line Hudson granted to Haber. The
Union, however, points to a number of factors that pro-
vide a connection between Haber and Hudson. Principal
among these is the list of small volume customers that
Hudson complied in 1980, referred to, supra. At the arbi-
tration the parties stipulated that Hudson gave this list to
Haber and he began to service these customers. Haber
denies that Hudson ever gave him such a list, and testi-
fied that he and his drivers obtained new customers
solely by locating prospective customers that were not
serviced by any distributor, and that had the capacity to
sell magazines . This was almost always small volume
customers, because if they did a large enough volume of
business they could purchase the magazines from a pri-
mary wholesaler like Hudson at a lower price than
Haber and other secondary wholesalers charge. (Since
the secondary wholesalers purchase their magazines from
the primary wholesalers, their prices to their customers
will generally be higher.) Haber testified that he was
presently serving some customers who were previously
served by Hudson, and the opposite is true as well, since
some of his accounts grew in size and became eligible to
deal with Hudson, with its higher discounts and lower
prices than Haber could offer. He was aware that
Hudson was deleting dealers in 1980, but he did not
know whether Hudson prepared a list of these deleted
dealers.
Kersen, who commenced employment with Hudson in
September 1981, testified that at the arbitration he en-
tered into the stipulation that in 1980 Hudson gave
Haber the list of the dealers it had deleted. At the time
of the arbitration, he believed that was a correct state-
ment based upon his conversations with Mike Aiello,
Hudson's general manager. However, after the arbitrator
handed down his decision, Robert Cohen, Hudson's
president, told him that he was in error, that Hudson
never gave such a list to Haber. He then checked with
other of Hudson's representatives, including Frank
Nucera, its former general manager (who did not testify),
who confirmed Cohen's statement that no such list was
ever given to Haber. Kersen also testified that at that
time he also learned that, in deciding upon what dealers
to delete, Hudson used a $10-a-week figure in deciding
which dealers it would discontinue serving. Cohen testi-
fied that when he read the arbitrator's decision he was
"surprised" to read that Hudson gave Haber the list of
deleted customers and he asked Kersen where he heard
that; Kersen said that he received the information from
Aiello. He testified that Aiello did prepare such a list,
but he was not authorized to give it to anyone outside of
Hudson-". . . if he did, I don't know anything about
it." He testified further that, at the time, Hudson decided
it was uneconomical to serve certain customers, and it
deleted them and consolidated some of its routes, but he
did not know that Haber would begin selling to these
former customers. Aiello testified that in 1980, due to the
gasoline shortage, Hudson decided to check its customer
records and remove dealers with whom Hudson was
doing $10 or less business a week. Aiello prepared such a
list; it contained between 400 to 500 names, and gave it
to Nucera. Aiello never gave the list to Haber and does
not know what Nucera did with the list, but he was
never told that Nucera was to transmit the list to Haber.
At the arbitration, he assumed that the list was given to
Haber because Haber's operation served the type of cus-
tomer who was uneconomical for Hudson to serve, but
he never saw Haber with the list and does not know
whether Haber ever saw the list. Cotter testified that
prior to the arbitration, Kersen told him (in Aiello's pres-
ence) that Hudson gave Haber the list of deleted dealers
in order to give him a start.
On September 6, 1980, Hudson and ISI Incorporated
(although, Haber testified, it is not a corporation) by
Richard Shapiro, vice president, and Haber entered into
an agreement wherein ISI stated it desired to sell TV
Guide as well as other publications "on behalf of Hudson
to certain of Hudson's customers and accounts" and that
they were entering into the agreement "in order to
induce Hudson to appoint I.S.I., Inc. as Sales Represent-
ative to sell and promote the sale of TV Guide and other
magazines and publications." The agreement contains 27
articles, the first of which states:
1. Hudson hereby appoints I.S.I., Inc. as its exclu-
sive Sales Representative to sell and promote the
sale of TV Guide and other titles to those retail cus-
tomers and accounts listed on Schedule A attached
hereto.
Haber testified no schedule was attached or ever given
to him. The agreement also provides that IST shall not
attempt to sell to, or service, any customers other than
those listed on Schedule A, without Hudson's permission
and that ISY shall pay its bill in full each week, but may
carry a balance up to $10,000.2 (Haber's current balance
with Hudson is approximately $100,000.) Further, the
Agreement provides that Haber will receive a 7-1/2 per-
cent discounts on TV Guide4 with the discount on other
titles to be determined by Hudson; Haber testified that in
1980 he negotiated with Hudson to increase his discount
on TV Guide to 5 percent and in dune 1980 his discount
on monthly magazines was increased to 7-1/2 percent;
that is his present discount schedule and he never re-
ceived a 7-1/2 percent discount on TV Guide. The
agreement provides that either party may terminate it
upon 30 days written notice to the other side. Each page
of the agreement was signed by Haber; he testified that
the reason he did this was, due to the absence of any
2 This was changed from $5000 and initialed by Haber and Shapiro, at
Haber's suggestion.
3 This was changed from 3-1/2 percent and initialed by Haber and
Shapiro.
4 Handwritten , and initialed by the parties , was: "+ $100 " Haber testi-
fied that he never received this amount.
NEWSPAPER & MAIL DELIVERERS (HUDSON NEWS) 571
schedule, he signed each page „ to indicate that the 27 ar-
ticles was the extent of the agreement; in case the cus-
tomer list later became attached to the agreement-
"there would at least be the suspicion that it wasn 't origi-
nally there." He did this even though Shapiro told him
that he only had to sign the last page . Haber testified
that he was asked to sign this agreement due to a suc-
cessful antitrust court case brought against some primary
who lesalers , national distributors and publishers by the
suppliers for refusing to serve them . Haber was asked to
sign the agreement to prevent that from occurring be-
tween them . Haber told Cohen that he did not feel that
it was necessary as they had no previous problems in
their relationship . Cohen agreed, but said that Shapiro
was insisting on it; he told Haber: "Mike, this is all bull-
shit, the understanding is between us and we know what
we mean, just to sign it so we have peace in here," and
he did . He testified that where the agreement altered
their relationship it was not enforced , and the remaining
areas were not applicable to their relationship ; Haber tes-
tified that he and Hudson did not conduct their business
pursuant to the provisions of this agreement.
Cohen testified that in 1980 , Hudson was involved in
an antitrust action and he determined that it would be in
Hudson's interest to have secondary wholesalers enter
into agreements with Hudson in order to prevent them
from suing Hudson. He instructed Shapiro and Hudson's
attorney to draw up such an agreement ; that was the
agreement that Hudson and Haber signed . He testified
that the schedule referred to in the contract was the list
of deleted customers prepared by Aiello; he knows that
Aiello prepared it and gave it to Nucera , but does not
know whether it was ever given to Haber . He testified
further that Haber did not want to sign the agreement,
but he prevailed upon him to do so . As to the articles in
the agreement : "I would not consider them all dead
issues, maybe some of them were routine , but I wouldn't
consider them all dead. I would consider them perti-
nent."
The Union, in its attempt to establish a connection be-
tween Hudson and Haber , refers to Haber 's sale of Vil-
lage Voice (the Voice). Since January 1981 , Haber has
been distributing the Voice ; he currently distributes it in
Harlem, Upper Manhattan and the Bronx . Select Maga-
zine (Select), a national distributor of magazines, main-
tains an office at, Hudson; Hudson purchases the Voice
and other periodicals from Select. Haber testified that
shortly prior to 1981, while he was at Hudson 's premises,
a representative of Select informed him that they were
having difficulties with Greg News Company, a New
York distributor, who was then distributing the Voice.
He indicated that Select might be looking to transfer the
distribution of the Voice; they had decided against
Hudson because they didn't want to use a union oper-
ation as it had never previously operated that way. Be-
cause of Haber's limited financial resources , Hudson
agreed to guarantee Haber's payment to Select . The pro-
cedure was that Haber received an invoice from the
Voice, he paid Hudson, which paid the Voice. As to
why Hudson would do this , Haber testified to two rea-
sons : He had earlier performed, without a fee, some ana-
lytical work for Hudson, and since 1980 his discount
from Hudson had not changed although his business with
them had greatly increased . Haber and Kersen testified
that Hudson has never distributed the Voice in these
areas; the reason is due to the day and time of delivery
of the Voice. The Voice is a weekly paper that comes
out on Wednesday while Hudson 's Bronx routes are
typically dispatched on Thursday; they would therefore
not be competitive . In addition, the Voice is usually de-
livered late in the morning, after Hudson 's trucks had
left, and they would, therefore, have to wait until the
following day for distribution , putting them at an addi-
tional disadvantage competitively.
The union defense is that the subcontracting prohibi-
tion contained in the Clarification of Jurisdiction letter
was a lawful means of preserving its members ' jobs at
Hudson and other members of the Association . Cotter
testified that as a result of Hudson discontinuing service
to 400 prior customers in 1980 , no jobs were actually
lost, but extra shifts were lost by the Union 's members at
Hudson : i.e., because of this deletion , Hudson was able
to do without 10 to 15 shifts by extra men , whom they
would have had to employ ; the basis of this conclusion
was his conversations with regular and extra employees
at Hudson . Kersen testified that, to the best of his knowl-
edge, the 1980 deletion did not cause the layoff of, or
have and adverse effect upon , Hudson's employees.
Cotter testimony of the Union's jurisdiction is as fol-
lows:
Q. So it is your testimony that if Haber or any
other companies like Haber goes out and solicits
new accounts in the geographic area that the
wholesalers, like Hudson County, have accounts
... that's union work?
A. That's quite correct . Because it should be
Hudson County going out and soliciting these
people.
In this regard , Murray Schwartz , president of the
Union, testified:
Well, if a paper like the Village Voice was handled
by our men , there would be weekly routes created,
we would either get new shifts , or if we couldn't
get new shifts, there would certainly be additional
work put on the existing routes where men would
have an opportunity to gain overtime which is paid
at a premium rate:
In answer to the same question asked of Cotter, supra,
Schwartz testified that it would be union work if Haber,
or any other secondary wholesaler , purchased the peri-
odicals from a union wholesaler. Schwartz also testified
to an example of how a dealer serviced by Hudson is
jeopardized by a competitor being serviced by a second-
ary wholesaler ; however, I was unable to comprehend
this example especially since dealers serviced by second-
ary wholesalers , of necessity, pay higher prices than
those serviced by Hudson or other primary wholesalers.
Finally , the Union alleges that the complaint must be
dismissed because IMS (as compared to ISI and The
Book Worm) is the Charging Party , whereas Hudson
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD572
bills The Book Worm, not IMS, for Haber's purchases.
Counsel for the Union's brief states that the complaint
"must be dismissed because the General Counsel failed to
establish that IMS does business" in any way with
Hudson.
IV. DISCUSSION AND ANALYSIS
Section 8(e) states:
It shall be an unfair labor practice for any employer
to enter into any contract or agreement, express or
implied, whereby such employer ceases or refrains
or agrees to cease and refrain from handling, using,
selling, transporting or otherwise dealing in any of
the products of any other employer, or to cease
doing business with any other person.
The Union's argument that the complaint must be dis-
missed because Hudson does not do business with IMS
must fall for a number of reasons. Although Hudson
does not bill Haber in the IMS' name, IMS does, at times
pay Hudson for Haber's billing. In addition, the oper-
ations of IMS, ISI, and The Book Worm are so intermin-
gled that they are, in reality , one. And, finally, the word-
ing of the Act and complaint, referring to any other em-
ployer or persons clearly encompasses the allegations es-
tablished at the hearing.
The Act also refers to an entering into of a contract.
The Clarification of Jurisdiction letter was entered into
in about 1982, outside of the 10(b) period. However, the
Board and the courts hold that an arbitration proceeding
to enforce such an agreement amounts to a "reentering
into" of such agreement. Retail Clerks Union Local 770
(Hughes Markets), 218 NLRB 680 (1975); Carrier Air
Conditioning Co. v. NLRB, 547 F.2d 1178 (2d Cir. 1976).
As the arbitration occurred within the 10(b) period, the
Union and Hudson cannot defend on this basis.
The Board and Court decisions are clear that an agree-
ment such as the Clarification of Jurisdiction letter is
lawful if its purpose is to preserve the work of the
union's members, and is unlawful if its purpose is the ac-
quisition of work for its members. As the Supreme Court
stated in National Woodwork Mfr. Assn. v. NLRB, 386
U.S. 612 at 644-645 (1967):
The determination of whether the [challenged con-
tract provision] . . . violated Section 8(e) and Sec-
tion 8(b)(4)(B) cannot be made without an inquiry
into whether, under all surrounding circumstances
the Union's objective was preservation of work for
[the contracting employer's] employees, or whether
the agreements. . . . were tactically calculated to
satisfy union objectives elsewhere. . . . The touch-
stone is whether the agreement or its maintenance is
addressed to the labor relations of the contracting
employer vis-a-vis his own employees.
This is a proposition that is easy to state, but difficult
to apply. The provision forbids the primary wholesaler
from subcontracting any bargaining unit work; is the
Union attempting to preserve the work of its members,
or attempting to obtain new jobs for its memberships?
The Union argues (with some - force) that Hudson, by
selling TV Guide or other periodicals to Haber (or other
secondary wholesalers) is making a profit simply by
having a bookkeeper send a bill to Hudson, without the
need of any additional drivers, and that the Clarification
of Jurisdiction letter was to forbid this practice and
therefore preserve the work of its driver-members. How-
ever, the difficulty with this argument is that it covers all
subcontracting (and apparently all sales to secondary
wholesalers), just as the Union appears to view all retail
outlets in the area as customers that Hudson must serve
and its driver-members must service; this indicates that
the Union is attempting, at least partially, to acquire
work it never previously had.
I credit the testimony of Haber and Kersen and find
that Hudson never transmitted the delete list to Haber in
1980, or anytime thereafter. I therefore find that, at that
time, Hudson discontinued servicing these accounts for a
valid reason (it was uneconomical for them to serve such
small customers) and that, in time, Haber may have ac-
quired some of these customers on his own initiative.
That being so, the Union's purpose in having the Asso-
ciation agree to the Clarification of Jurisdiction letter in
1982 was to force Hudson, and the other primary whole-
saler members of the' Association, to cease selling to the
secondary wholesalers who serve the smaller customers.
Once this was accomplished and Hudson was no longer
selling to Haber and other secondary wholesalers (with
its resulting profit), Hudson may have started serving
some of the "borderline" customers previously served by
Haber (and the other secondary wholesalers), and the
Union would thereby, acquire, or reacquire work for its
members. This is the objective proscribed by Section
8(e), and I, therefore, find that by entering into this
agreement (as further "entered into" in the arbitration)
the Union and Hudson violated Section 8(e) of the Act.
CONCLUSIONS OF LAW
1. Newspaper and Mail Deliverers ' Union of New
York and Vicinity is a labor organization within the
meaning of Section 2(5) of the Act.
2. Hudson County News Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. Hudson and the Union violated Section 8(e) of the
Act by entering into the Clarification of Jurisdiction
letter and by reentering into it in the arbitration held in
November 1983.
THE REMEDY
Having found that this Clarification of Jurisdiction
letter violates Section 8(e) of the Act, I shall order
Hudson and the Union to cease and desist from entering
into, maintaining or enforcing the provisions of this
letter; I shall also order that they cease and desist from
enforcing the arbitrator's award of November 29, 1983,
which resulted from this letter.
[Recommended Order omitted from publication.]