Newspaper And Mail Deliverers' Union Of New York & Vicinity

National Labor Relations Board - Board Decisions

Nov 20, 1985

277 N.L.R.B. 576 (N.L.R.B. 1985)

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newspaper and Mail Deliverers ' Union of New York
& Vicinity and Raritan Periodical Sales, Inc.
and Investor's Daily, Inc. Cases 22-CC-933
and 22-CC-934
20 November 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABASON
On 24 July 1985 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent filed exceptions and a supporting
brief. Charging Party Investor's Daily, Inc. filed
limited cross-exceptions and a 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 briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Newspaper
and Mail Deliverers' Union of New York & Vicini-
ty, Long Island City, New York, its officers,
agents, and representatives, shall take the action set
forth in the Order.
I The Respondent asserts that the judge's decision is the result of bias.
The assertion lacks merit. There is no basis for finding that bias and prej-
udice exist merely because the judge resolved important factual conflicts
in favor of the General Counsel's witnesses. NLRB v. Pittsburgh Steam-
ship Co, 337 U.S 656, 659 (1949)
2 In light of the Respondent's demonstrated proclivity to engage in
similar unlawful conduct, we agree with the judge's remedy See Newspa-
per & Mail Deliverers (New York News), 269 NLRB 102 (1984), finding
8(b)(4)(i)(B) violations; Newspaper & Mail Deliverers (Gannett Co.), 271
NLRB 60 (1984), finding 8(b)(4)(i) and (u)(B) violations; and Newspaper
& Mail Deliverers (B & W Distributors), 274 NLRB 929 (1985), finding
8(b)(4)(i) and (ii)(B), 8(b)(4)(i) and (u)(A), and 8(e) violations
Mitchell Schley, Esq. and Bernard Suscewicz, Esq., for the
General Counsel.
Marshall E. Lippman, Esq. (Lippman & Lippman), of
New York, New York, for the Respondent.
Joel E. Cohen, Esq. (Kelley, Drye and Warren), of New
York, New York, for the Petitioner.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was heard by me at Newark, New Jersey, on
21 February 1985. The charge in Case 22-CC-933 was
filed by Raritan Periodical Sales, Inc. on 10 January 1985
and the charge in Case 22-CC-934 was filed by Inves-
tor's Daily, Inc. on 17 January 1985. The consolidated
complaint alleges violation of Section 8(b)(4)(i) and
(ii)(B) of the National Labor Relations Act. It is alleged
that members of the Respondent, the Newspaper and
Mail Deliverers' Union of New York and Vicinity (the
NMDU), received and complied with instructions which
it issued as a result of which they, as employees of peri-
odical wholesalers, refused to handle publications of pub-
lishers who made delivery to the wholesalers through
delivery services which did not employ drivers who
were members of the NMDU. It is alleged that they
were thereby encouraged to engage in a refusal to
handle or work on goods, or to perform services, and
threatened and coereced employers, all with the object
of forcing their employers to cease doing business with
and to cease handling the publications of such publishers.
The Respondent's answer denies the material factual
allegations of wrongdoing and asserts affirmatively that
there was no interruption of delivery of the publications,
that any refusal to handle was a primary strike against
the employers resulting from a contract violation on
their part, that the dispute is a primary strike also be-
cause the actions taken were designed to counter a viola-
tion of a contractual clause prohibiting subcontracting of
unit work, and, finally, that Raritan had asked to with-
draw its charge and requested that the Board not pro-
ceed with any action in connection with it.
The parties were afforded full opportunity to be heard;
to call, examine, and cross-examine witnesses; and to in-
troduce relevant evidence. Posthearing briefs have been
filed by the General Counsel, the Respondent, and Inves-
tor's Daily, Inc., one of the Charging Parties.
On the entire record,' including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, the Respondent, and
the Charging Party, Investor's Daily, Inc., I make the
following
FINDINGS OF FACT
1. JURISDICTION
The Respondent's answer admitts the jurisdictional al-
legations pertaining to the wholesalers and publishers
named in the complaint with the exception of Investor's
Daily, Inc., as to which it denied knowledge or informa-
tion. It also denied knowledge or information respecting
two nonunion delivery services which Investor's Daily,
Inc. had employed, who were alleged to be engaged in
trucking services and to be persons within the meaning
of Sections 2(1) and 8(b)(4)(i) and (ii)(B) of the Act.
Robert V. Gillen, the East Coast circulation manager of
Investor's Daily testified that he hired the two services
as truckers and a driver employed by one of them testi-
fied regarding its operations, thus establishing their
status. Gillen testified that Investor's Daily, Inc. had its
main office in Los Angeles, California, and offices in
New York City and was distributed nationally with
annual gross revenues of at least $200,000, and that it
I Errors in the transcript have been noted and corrected
277 NLRB No. 64
NEWSPAPER & MAIL DELIVERERS (RARITAN SALES)
carries advertisements for nationally advertised products
and services. The jurisdictional allegations relating to all
of the other parties and persons involved having been
admitted both in the answer and at the hearing, I accord-
ingly find that all of the publishers and wholesalers
named in the consolidated complaint are and have been
at all material times employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act, that the Respondent is and has been at all material
times a labor organization within the meaning of Section
2(5) of the Act, and that all of the publishers named in
the consolidated complaint and the two nonunion truck-
ing services, Perfect Courier, Ltd. and Grant' Courier,
Inc., are persons within the meaning of Sections 2(1) and
8(b)(4)(i) and (ii) (B) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Basic Facts2
Metropolitan News Company is a distributor of maga-
zines and newspapers, delivering approximately 100 titles
to some 3500 retail outlets in the New York Metropoli-
tan Area. It is the largest wholesaler in the region. In ad-
dition to purchasing publications at wholesale and dis-
tributing them to its own retailers, Metropolitan provides
a truck delivery service, transporting the material from
the printing plants to other wholesalers as well as to its
own wholesaling base in Long Island City, New York,
and charging the publishers for the service.
Late in 1983, Metropolitan determined that the deliv-
ery operation was unprofitable and notified the publish-
ers that it would be discontinued, New agreements were
negotiated with a number of publishers who wanted de-
liveries continued to their wholesalers by Metropolitan
and were willing to pay the price increases which Met-
ropolitan asserted it needed to cover rising costs. 11
Progresso was one of the newspapers which agreed to
the increased prices immediately. Investor's Daily was
not.
Investor's Daily, which is published five times a week,
is printed in New Jersey by Somerset Publishing Compa-
ny. Metropolitan, acting as a trucker paid by Investor's
Daily, Inc., picked up the papers from Somerset and de-
livered them to five wholesalers located in New Jersey,
and in Westchester County and Long Island, New York.
Metropolitan, in its capacity as wholesaler, also distribut-
ed Investor's Daily to its own retail outlets. When Met-
ropolitan raised its delivery rates, which occurred on 18
December 1984, Investor's Daily discontinued its truck-
ing services and employed Perfect Courier, Ltd and
Grant Courier, Inc. to perform those services. Both of
these companies employed drivers who were not mem-
bers of the NMDU.
Perfect Courier and Grant Courier commenced
making deliveries to the wholesalers who handled Inves-
tor's Daily, including Meti opolitan. Deliveries in this
fashion commenced on 18 December 1984. On 7 Janii.-
2 The matters narrated without evidentiary comment are those facts
found by me on the basis of admissions in the answer, data contained in
the exhibits, stipulations between or concessions by counsel, undisputed
or uncontradicted testimony, and, in instances where conflicts in the testi-
mony did not warrant discussion, the testimony which I have credited
577
ary,2 Investor's Daily discovered that its 8 January issue
was not making it to the newsstands, though the whole-
salers were getting the deliveries. Gillen, the circulation
manager, testified that the managing personnel of the
wholesalers advised him that the papers were not being
distributed because the employees,, or their foremen,
were instructed by the Union not to make distribution.
Deliveries to the wholesalers were discontinued on 17
January. The following Monday, on 21 January, Inves-
tor's Daily changed its procedure by having Perfect
Courier and Grant Courier deliver the papers from the
printing plant to Metropolitan, which then made distribu-
tion to the wholesalers. According to Gillen, deliveries
from the wholesalers to the retail outlets were then re-
sumed. (Because of the intervening weekend, only one
day's delivery to the wholesalers was missed by Inves-
tor's Daily.)
There was no interruption of delivery of periodicals
published by those publishers who continued their con-
tracts with Metropolitan after the rate increase . For ex-
ample, II Progresso continued to be delivered throughout
this period.
Though Respondent disputes the allegation that such
an interruption in deliveries took place, the evidence es-
tablishes that the publications which discontinued the
services of Metropolitan after the rate increase on 18 De-
cember 1984 were not distributed by the wholesalers,
and that the reason they were not distributed was that
the NMDU had instructed its members not to handle the
material. Besides Gillen's testimony, there is testimony
by Investor's Daily 's sales manager that he personally
checked on the distribution during the period from 7
through 18 January after he received reports that Inves-
tor's Daily was not on the newsstands. He found that it
had not been delivered to several locations serviced by
Hudson County News Service. These were the Port Au-
thority Terminal in New York City, the Hoboken train
terminal, and the terminal in Journal Square, Jersey City.
Carol Cirieco, the circulation manager of Gaynor
News Company, Inc., testified that it is a wholesale
newspaper delivery service distributing newspapers
throughout Westchester, New York, and Putnam Coun-
ties. Of the 70 or 80 titles which it delivers to news-
stands, supermarkets, and home delivery dealers, it re-
ceives most from the individual publishers and about 15
titles from Metropolitan. Its drivers are members of the
Union Metropolitan informed Gaynor that it would no
longer deliver certain titles after 7 January, and those
titles began to be delivered by the publishers themselves.
However, although Gaynor's drivers distributed them
for the first 2 nights of this new procedure, they refused
to continue making deliveries and did not do so during
the period from 9 through 17 January. Deliveries were
not resumed until 18 January, when Metropolitan re-
sumed delivery of those titles to Gaynor. Cirieco and
John Granada, Gaynor's sales and operations director,
were informed by Vic Soffa, the union representative at
Gaynor, that lie had been informed by Mike O'Keefe,
3 All dates hereinafter mentioned are in 1985 except as otherwise
stated
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's business agent at Gaynor, that any publica-
tion formerly delivered to Gaynor by Metropolitan was
not to be delivered if it came in directly from the pub-
lisher or by some means other than through Metropoli-
tan or a union driver.
Gaynor ultimately stopped accepting delivery from the
publishers because, as Cirieco put it, "We were instruct-
ed by the NMDU representative not to accept any
papers that were previously delivered from Metropolitan
News."
Counsel for Respondent adduced testimony from Cir-
ieco on cross-examination to the effect that there had
never been any "disruption of delivery" of certain small
Westchester County local town papers which were de-
livered to Gaynor directly by nonunion drivers. I fail to
see that this negates the existence of a violation of the
Act by reason of Respondent's conduct alleged in the
complaint. The fact that Respondent does not uniformly
violate the law under all conceivable conditions does not
mean that it did not do so by committing the acts al-
leged. Nor am I swayed by the testimony adduced to the
effect that, in counsel's own language, to which the wit-
ness gave a one-word affirmative reply, "[T]he only pub-
lications which were in any way affected, if in fact they
were, were those where the distribution changed in some
way."
The instructions which Cirico gave were that the
smaller periodicals were not to be accepted if such ac-
ceptance jeopardized distribution of the major publica-
tions.
Arthur Preuster, a driver for Perfect Courier, Ltd.,
testified that on Monday, 11 February 1985, he picked
up a shipment of Investor's Daily from a printer in
Campus Drive, New Jersey, under orders to deliver
them directly to the wholesalers, because the Metropoli-
tan trucks had already been missed as a result of some
difficulty at the printing plant. At his second stop,
Hudson County News Co., he was asked to produce his
union card which, of course, he did not have, and he
heard another worker tell his interrogator to scrap the
newspapers which he had delivered.
Raritan Periodical Sales, one of the Charging Parties,
is a member of the Suburban Wholesalers Association,
which has a contract with the NMDU covering its driv-
ers, mechanics, and warehousemen. Raritan handles be-
tween 700 and 800 titles in several counties of New
Jersey. Its vice president of operations, Gary Hertzfeld,
testified that prior to 7 January, it received delivery of
approximately a dozen periodicals through Metropolitan,
whose drivers, of course, are members of the NMDU.
When the publishers of those items terminated Metropo-
litan's services and, after 7 January, began making deliv-
ery directly to Raritan, the Raritan employees failed to
deliver the periodicals to the retail outlets. There was
one exception: Il Progresso.
Hertzfeld obtained an explanation directly from the
source of the trouble. He telephoned Joseph Cotter, the
business agent, who advised him that Il Progresso had
been distributed because it had been brought in by
NMDU drivers, and that papers would be handled at
Raritan only if they were brought in by NMDU drivers.
On 10 January, delivery of two other publications,
Sports Eye and Fast Performance, was resumed by Met-
ropolitan; they were thereafter handled by the Raritan
personnel, who continued their refusal to handle other
papers still being delivered directly by their publishers
(Novogenic, Irish Echo, The Jewish Press) until Metro-
politan resumed delivery service for those papers on 22
January. None of this testimony was disputed by Cotter
when he took the stand. On the contrary, he confirmed
that when the assistant chairman at Raritan telephoned
him and advised him that some papers formerly deliv-
ered by Metropolitan were being brought to Raritan by
other persons, he told the assistant chairman "not to
handle those papers that came in different from what
they had been doing."
B. Analysis
The evidence establishes that certain publishers, in-
cluding one of the Charging Parties, discontinued the
services of Metropolitan, whose drivers are members of
the NMDU, and attempted to make delivery of their
publications from the printing plants (operated by inde-
pendent printers) to the wholesale distributors by the use
of delivery services whose drivers were not members of
the NMDU. This was done because of a steep increase in
Metropolitan's charges for trucking delivery service.
Publishers who continued the use of Metropolitan's serv-
ices had no problem, but the publishers who resorted to
nonunion delivery services found that though their publi-
cations arrived at the wholesalers in time for distribution,
they never left the wholesalers' premises. The wholesal-
ers' employees are also members of the NMDU covered
by a collective-bargaining agreement between the whole-
salers' organization and the NMDU, and they refused to
handle publications delivered by nonunion personnel on
instructions from the business agent, Cotter.
Cotter's testimony leaves no doubt that the nonunion
delivery was at the root of the problem. Cotter testified
to a telephone call from the assistant chairman at Raritan
around midnight on a Monday, and that the message was
. .. that the Metropolitan News Company truck
had not been [in], and yet small publications which
previously had been delivered by the Metropolitan
News Company were being brought in by non-
union people.
Cotter contended that the assistant chairman was not
complaining about the fact that the deliveries were being
made by nonunion people, but simply that "he wanted to
know what was going on." The testimony speaks for
itself. What was going on was that nonunion personnel
were making deliveries formerly made by the NMDU
members who worked for Metropolitan and that was the
main burden of the assistant chairman's message.
Cotter's testimony was an inconsistent and untruthful
attempt to support the legal position taken by the
NMDU in this proceeding. Thus, the telephone call from
the assistant chairman at Raritan, which he conceded at
some points in his testimony to have been a report of
nonunion delivery activity, became at other points a
report of a "change" in the method of receipt of papers
in violation of the collective bargaining agreement:
NEWSPAPER & MAIL DELIVERERS (RARITAN SALES)
Q. Was it your information that it was a change
or an alteration in the manner of receipt that had
gone on for years before that?
A. Yes, it was a change in the receipt of papers.
Q. What action if any did you take as a result of
that breach?
A. I told the men, I told the assistant chairman
not to handle those papers that came in different
from what they had been doing.
This, of course, laid the basis for the contention that
article 17-b of the collective-bargaining agreement be-
tween the NMDU and the Suburban Wholesalers Asso-
ciation and the Morning News Companies Association,
which represented all of the wholesalers named in the
complaint , had thereby been violated . That provision
reads as follows:
17-b. Present practices with respect to the receipt
by the Wholesaler of the Newspapers of its respec-
tive publishers shall continue unaltered ; provided,
however, that the Wholesaler may designate such
receiving points within the territory served by it as
its convenience may require.
Cotter's implausible testimony , however, could not
support such a contention, and he switched to a conten-
tion that he was trying to avoid subcontracting , prohibit-
ed by section 8 of the same agreement , though he admit-
ted that subcontracting had had nothing to do with his
direction to the members to stop handling the nonunion-
delivered publications . He conceded that after 7 January
and while members of the Union were refusing, pursuant
to his directions , to handle papers coming in from pub-
lishers through delivery agencies other than Metropoli-
tan, the Italian language newspaper, Il Progresso , contin-
ued to be handled by the union members. II Progresso
was being delivered to the wholesalers by its own em-
ployees. In response to a direct question, Cotter denied
that it continued to be handled because the Il Progresso
drivers were also members of the Union . He insisted
under repeated questioning that the only reason Il
Progresso continued to be handled was that he had
waived the provisions of section 17-b insofar as that
paper was concerned , and he gave the same answer
when asked to explain why he had waived section 17-b
for that one newspaper . He waived section 17-b in the
case of II Progresso because he waived section 17-b, and
did not do it because its drivers were members of the
Union. When asked why he did not waive it for anyone
else, he responded that no one else had asked him. The
waiver in the case of the one paper followed consulta-
tion which he undertook with the other major officials of
the Union , according to him. Consequently , when asked
if he would be willing to make other waivers if requested
to do so, he was unable to give a definite answer, he
said, since he had to have internal union discussion.
This kind of testimony, of course, readily falls apart on
cross-examination. Cotter could not say whether , if other
publishers had asked him, they could have received
waivers, since he would have had to consult other offi-
cials; yet, as a major official , he would not say whether
he would have been in favor of according them the same
579
treatment he gave II Progresso . Cotter testified that his
position was based entirely on section 17-b and that sub-
contracting played no part in his decision : Cotter testi-
fied that he took the action which he did because he
wanted to protect bargaining unit work , notwithstanding
the absence of any evidence whatsoever that Metropoli-
tan had been contracting work out. His testimony ended
with the concession that he waived section 17-b in the
case of II Progresso because he wanted to preserve
work, to protect the work for union members ; that the
purpose of section 17-b is to protect the work of union
members; that he told the workers not to handle the
papers in order to protect work under section 17-b; and
that that was the reason Il Progresso was allowed to
make its own deliveries.
Cotter explained his understanding of the operation of
section 17-b:
Q. . . . 17B means that if a wholesaler used to re-
ceive deliveries from Metropolitan News, they must
continue to receive deliveries from Metropolitan
News. Is that correct?
A. In strict interpretation, yes.
Q. What if a publisher didn't want to use Metro-
politan News? They wanted to use another compa-
ny to deliver the papers to the wholesaler. Could
they do that?
A. Not unless 17B was waived.
Q. Not unless you waived 17B, is that right?
A. Not unless 17B was waived.
Q. By the union.
A. By the union.
Q. .. let's say the wholesalers wanted to waive
it. Could they waive it without getting your permis-
sion?
A. No.
Q. . . . if they wanted to switch from Metropoli-
tan to let's say Perfect Courier they couldn't do it
because of 17B of your contract.
A. That's my interpretation.
Q. It's your interpretation that your contract
with the wholesaler can bind Investor's Daily's
business decision. Is that your opinion?
A. To a degree I guess it does.
Such a construction makes section 17-b, in its applica-
tion, a perfect example of a "hot cargo"' agreement for-
bidden by Section 8(e) of the Act as an agreement
... express or implied whereby such employer
ceases or refrains or agrees to cease or refrain from
handling, using, selling, transporting or otherwise
dealing in the products of any other employer or
cease doing business with any other person
Such agreements are expressly declared , to the extent
that they are so applied , to be unenforceable and void.
What Cotter's argument amounts to is that his actions
were justified because they were taken pursuant to an
agreement which the Act make illegal precisely because
such agreements are a means of evasion of the sections
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the General Counsel seeks to enforce in this pro-
ceeding. The evidence establishes that the NMDU exert-
ed pressure on the wholesalers to cease handling the
publications of the publishers who were making deliv-
eries to the wholesalers through delivery services which
employed drivers who were not members of the NMDU.
This was a refusal to handle or work on goods or to per-
form services and coercion on the wholesalers in viola-
tion of Section 8(b)(4)(i) and (ii)(B) of the Act.
In the course of his testimony, Hertzfeld made it clear
that none of Raritan's employees lost any work by
reason of the shift by some publishers away from Metro-
politan. No wholesalers were involved in any dispute.
Their NMDU employees continued to handle periodicals
which came in through Metropolitan or from Il
Progresso. The concern was patently with the use of
nonunion delivery service from the printing plants to the
wholesalers, a practice resorted to by some publishers,
including Investor's Daily, which the NMDU wanted to
stop. The dispute was between the NMDU and those
publishers. There was no dispute between NMDU and
the wholesalers
There is thus no support whatsoever for the affirma-
tive matter asserted by the Respondent in its answer to
the effect that the refusal to handle was a primary strike
against the employers resulting from a contract violation
on their part, and was also a primary strike to avoid sub-
contracting of unit work. The wholesalers, as employers,
had nothing to do with those matters. The actions being
protested were the actions of the publishers.
I should note at this point that the proven general pat-
tern of refusal by the Respondent's members, pursuant to
its instructions, to handle goods of publishers who were
not utilizing delivery services employing the Respond-
ent's members establishes a violation of the Act with re-
spect to all of the wholesalers named in the complaint
though the testimony presented in the hearing did not
specifically identify all of the publishers and wholesalers
named in the complaint as parties affected the Respond-
ent's actions. Cotter's testimony makes the general policy
of the Respondent quite clear: The Respondent would
direct its members to refuse to handle merchandise of
any publisher who was making delivery to the wholesal-
ers through nonunion services. Which publishers were
doing so, and over what period of time, though not clear
from the testimony, is clearly spelled out in Respondent's
Exhibit 1. Respondent's Exhibits 1 and 2 are respective-
ly, copies of section 17-b and section 8 of the latest col-
lective-bargaining agreement between the NMDU and
the employers' associations previously mentioned. It is a
title page, or cover, of the most recently expired collec-
tive-bargaining agreement entered into by the NMDU di-
rectly with the employers who now deal through the as-
sociations. The list, of employers includes all of the
wholesale distributors named in the complaint.
I therefore find that the Respondent violated the Act
as alleged with respect to each of the wholesalers so
named. The proof remained limited, however, as to the
publishers involved.
The testimony showed that Raritan's employees re-
fused to handle Slovo, Dziennik, Irish Echo, Jewish
Press, and Investor's Daily. There was no explicit testi-
mony that there occurred a refusal to handle papers of
any other specifically named publisher. For example,
Carol Cirieco, the circulation manager for Gaynor, testi-
fied that Metropolitan delivered Sports Eye, Investor's
Daily, and Philadelphia Enquirer from the printers to
Gaynor, and that Metropolitan notified Gaynor that they
were ceasing delivery of "certain papers." She did not,
however, identify which publishers delivered their own
papers to Gaynor nor the papers which Gaynor employ-
ees refused to handle. I therefore specifically find viola-
tions only with respect to the named publishers.
C. Withdrawal of Charge by Raritan
At the outset of the hearing counsel for the Respond-
ent called attention to the fact that Raritan had requested
that its charge be withdrawn. This was a surprise to ev-
erybody else, for neither the counsel for the General
Counsel nor the counsel for Investor's Daily, the other
Charging Party, had any knowledge of Raritan's action.
Only counsel for the Respondent seemed to know any-
thing about it. Accordingly, I proceeded with the hear-
ing. When Gary Hertzfeld, Raritan's vice president of
operations, took the stand, he testified that he had exe-
cuted a request to withdraw the charge immediately
prior to his appearance at the hearing, on the advice of
counsel, because the papers were now being delivered.
The request was, in fact, filed on 21 February, immedi-
ately after the commencement of the hearing. On 7
March the Regional Director referred it to me. It is
hereby denied. I cannot think of anything that would
serve the public interest less than the calm acquiescence
by the Board , or the General Counsel, or any of the
Board's administrative law judges in the surrender by
charging parties to the kind of pressure and coercion
which this Respondent seems to be so adept at applying.
Hertzfeld's testimony that his action stems from the re-
sumption of deliveries-under conditions approved by
the Respondent-establishes that the attempt to with-
draw the charge results from the very same actions on
the part of the Respondent regarding which a remedy is
so badly needed. Not content with having violated the
Act, the Respondent has also sought to manipulate the
processes of the Board.
In opposing the request, the General Counsel points,
among other things, to the significant fact that Raritan
participated in all prior proceedings-the Board investi-
gation and proceedings in the United States District
Court for the District of New Jersey-and that the other
wholesalers affected by Respondent's action were enti-
tled to rely on Raritan's continued action on behalf of
the entire group. I agree with the General Counsel that
that fact together with the need to protect the public in-
terest and the Respondent's history of similar illegal con-
duct (which I discuss below) require that the charge not
be permitted to be withdrawn.
CONCLUSIONS OF LAW
1. Raritan Periodical Sales, Inc., Hudson County News
Co., Newark News Dealers Supply Company, Hacken-
sack News Co., Gaynor News Company, Inc., Bay News
Distributors, Inc., Passaic County News Company and
NEWSPAPER & MAIL DELIVERERS (RARITAN SALES)
Investor's Daily Inc. are, and at all pertinent times herein
have been, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Perfect Courier and Grant Courier are, and at all
pertinent times herein have been, persons engaged in
commerce or in an industry affecting commerce within
the meaning of Section 2(l), (2), (6), and (7) and Section
8(b)(4)(i) and (ii)(B) of the Act.
3. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
4. The Respondent violated Section 8(b)(4)(i) by in-
ducing employees of the above-named employers to
engage in a refusal, in the course of their employment, to
process, transport, or otherwise handle or work on or
perform any services with respect to certain publications,
including Investor's Daily, Slovo, Dziennik, Irish Echo,
and Jewish Press.
5. The Respondent violated Section 8(b)(4)(ii)(B) by
threatening and coercing Raritan Periodical Sales, Inc.,
Hudson County News Co., Newark News Dealers
Supply Company, Hackensack News Co., Gaynor News
Company, Inc., Bay News Distributors, Inc., Passaic
County News Company, and Investor's Daily Inc., with
the object of forcing them to cease selling, handling,
transporting, or otherwise dealing in the above-named
publications and certain other publications.
THE REMEDY
The Respondent having been found to have committed
violations of Section 8(b)(4)(i) and (ii)(B) of the Act, I
shall recommend that it be ordered to cease and desist
from conduct such as that which comprised the viola-
tion. In view of the Respondent 's insistence that it was
doing nothing more than enforcing its agreement with
the wholesalers , which contained a provision which I
have construed to be, in its application , a "hot cargo"
clause, I will recommend that the Respondent be direct-
ed to cease and desist from so construing and applying
its agreement with the wholesalers.
While the General Counsel has simply requested issu-
ance of an "appropriate" remedial order, counsel for the
Charging Party, Investor 's Daily, Inc., urges "the broad-
est remedial relief possible." Noting that this is the fifth
case involving unlawful secondary activity by the
NMDU in the last year and a half, counsel for Investor's
Daily urge the issuance of an order containing the same
provisions contained in a temporary injunction issued
against the Respondent prior to the hearing (which in-
junction was itself violated by the Respondent), general
publication of the notice directed to be posted in this
case, mailing of the notice to all NMDU' s members, and
imposition of counsel fees in order to punish Respondent
for interposing what the Charging Party 's counsel term
"frivolous defenses."
General publication and direct distribution to the Re-
spondent 's membership of the notice hereinafter pre-
scribed would appear to be appropriate remedial meas-
ures. However, if a suitable condensation of the notice
can be prepared for publication which will convey the
same message , that would accomplish the same effect
and I have accordingly recommended an Order provid-
ing for publication in a newspaper of general circulation
581
of a summary of the notice , or, in the discretion of the
Regional Director, publication of the entire notice,
which is short in any event . I have also recommended
that the full notice be published in any publication which
is issued directly to the Respondent 's membership. The
full notice is to be mailed to the membership.
To the extent that the allegations of the consolidated
complaint have been proved , the recommended Order
herein would necessarily have , paralleled the provisions
of the order made by the Hon. Dickinson R. Debevoise,
USDJ, on 6 February 1985 granting a temporary injunc-
tion, and to that extent the recommended Order herein
will be with consistent that of Judge Debevoise.
The proven general pattern of refusal by the Respond-
ent's members, pursuant to its instructions , to handle
goods of publishers who were not utilizing delivery serv-
ices . employing the Respondent 's members supports an
order requiring the Respondent to cease and desist from
such conduct in general. I have noted that the proof ac-
tually presented in the hearing did not explicitly identify
all of the publishers named as parties affected by the Re-
spondent 's actions . In addition , it appears that, in the
case of some publishers, secondary activity in a technical
sense had ceased by the time the injunction was issued
because the Respondent had got its way.
I have accordingly specifically named only Investor's
Daily Inc., Slovo, Dziennik , Irish Echo, and Jewish
Press in the recommended Order, along with all of the
wholesalers , in addition to recommending a cease-and-
desist order of general applicability.
However, I shall not recommend imposition of attor-
ney's fees . It is true that the Respondent has adhered to a
position contrary to that of the Board and, specifically,
of several of its administrative law judges . Nevertheless,
its conduct cannot be said to be contumacious until such
time as its position has been adequately tested in the
courts and has been rejected. Then , and only then, can
repeated assertion of that legal position be said to be
"frivolous." This case does not involve the kind of histo-
ry of multifarious violations of the Act which has been
held to support such a remedy . Cf. J. P. Stevens & Co.,
247 NLRB 420 ( 1980).
In the present case, counsel for the Respondent argues
that there is no reason a wholesaler must accept delivery
in any manner it does not wish, and if the Respondent
and the wholesaler have contracted for delivery to the
wholesaler of periodicals in a manner unchanged from
the current practice-that practice being to have deliv-
ery made by Metropolitan-then the efforts to ensure
that the Respondent 's bargained -for protections are real-
ized do not constitute secondary activity. I think that ar-
gument is untenable. However, the fact that several
other administrative law judges have rejected similar ar-
guments is no ground for penalizing the Respondent. It is
entitled to have its point of view presented and argued.
The point is still a long way from being so well settled
by the courts that the Respondent can be said to be ob-
streperous inpressing its position . Counsel for the Charg-
ing Party cites Hudson County News Co., 22-CE-58,
which involved a violation of Section 8(e) of the Act on
facts not similar to those of the present case and which
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not involve the contractual provisions involved in
this case,' and B & W Distributors Corp., 2-CC-1824, 2-
CE-140, affirmed 274 NLRB 929 (1985), which does in-
volve facts analogous to those of the instant case, but the
Board had not issued its decision on the case at the time
of the hearing. The General Counsel cites several other
cases before the Board in which the Board has sustained
findings of violation of the secondary boycott provisions
of the Act by the Respondent. None of these, however,
have been litigated in the courts. Until they are, the pos-
sibility remains that the position of the Respondent may
ultimately be held valid and that of the Board to be in
error. (The determination by the United States District
Court for the District of New Jersey was limited to a
finding that a temporary injunction should issue and did
not involve plenary litigation of all the issues of the
case .) Accordingly, imposition of counsel fees at this
point is unwarranted.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Newspaper and Mail Deliverers'
Union of New York and Vicinity, Long Island City,
New York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Inducing , encouraging, or instructing employees of
Raritan Periodical Sales, Inc., Hudson County News
Co., Newark News Dealers Supply Company, Hacken-
sack News Co., Passaic County News Company, Gaynor
News Company, Inc., and Bay News Distributors, Inc.,
or any other employer, to engage in a strike or refusal in
the course of their employment to transport or otherwise
handle or work on or to perform any service with re-
spect to the publications and products of Investor's
Daily, Inc., Slovo, Dziennik, Irish Echo Newspaper
Corp., Jewish Press, Inc., or any other person.
(b) Threatening, coercing, or restraining any of the
above-named employers or any other employer with the
object of forcing or requiring them or any other employ-
er to cease doing business or handling the publications
and products of Investor's Daily, Inc., Slovo, Dziennik,
Irish Echo Newspaper Corp., Jewish Press, Inc., or any
other person.
(c) Applying the provisions of section 17-b of its col-
lective-bargaining agreement with the above-named em-
ployers or with any association acting on their behalf in
such a manner as to require or sanction any of the
above-mentioned unlawful conduct on the part of its
members.
(d) In any other manner violating the provisions of
Section 8(b)(4) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(a) Post at its offices, meeting halls, and at locations in
the premises of all business concerns employing any of
its members at which it is authorized to post notices to is
members copies of the attached notice marked "Appen-
dix."5 Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Sign and mail sufficient copies of the notices to the
Regional Director for forwarding to the Employers
named in section 1(a) of this Order, for posting by them,
if they are willing, in locations where notices to employ-
ees are customarily posted. Regardless of whether they
elect to post such notices, the Respondent shall neverthe-
less, at such locations, comply with the provisions of sec-
tion 2(a) of this Order.
(c) Publish the complete text of the notice set out in
the attached Appendix in a conspicuous place in any
publication which it mails regularly to its membership,
and mail a copy of said publication containing the said
notice to each of its members.
(d) Publish at its own expense either the full text or a
summary of the terms of the notice set out in the at-
tached Appendix hereto in a form and size approved by
the Regional Director for Region 22, in a daily newspa-
per of general circulation in the New York metropolitan
area. Such publication shall be made on not less than
three separate occasions within a period of time, and on
such dates within the said period, as shall be designated
by the Regional Director.
(e) Notify the Regional Director in writing within 20
days from the date of this Order, what steps the Re-
spondent has taken to comply.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT induce, encourage, or instruct our mem-
bers or any other employees of Raritan Periodical Sales,
Inc., Gaynor News Company, Inc., Hudson County
News Co., Newark News Dealers Supply Company,
Hackensack, News Co., Passaic County News Company,
and Bay News Distributors, Inc., or any other employer,
NEWSPAPER & MAIL DELIVERERS (RARITAN SALES)
to engage in a strike or refusal , in the course of their em-
ployment, to transport , handle , work on , or perform any
service with respect to, the publications and products of
Investor 's Daily , Inc., Slovo, Dziennik, Irish Echo
Newspaper Corp ., Jewish Press , Inc., or any other
person.
WE WILL NOT threaten , coerce or, restrain any of the
above-mentioned employers or any other employer with
the object of forcing or requiring them to cease doing
583
business or handling the publications and products of any
person.
WE WILL NOT in any other manner violated the sec-
ondary boycott provisions of Section 8(b)(4) of the Na-
tional Labor Relations Act.
NEWSPAPER AND MAIL DELIVERERS'
UNION OF NEW YORK AND VICINITY