Newspaper and Mail Deliverers Union of N.Y.

National Labor Relations Board - Board Decisions

Apr 16, 1969

175 N.L.R.B. 386 (N.L.R.B. 1969)

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newspaper and Mail Deliverers Union of New York
and Vicinity and The Bergen Evening Record
Corporation . Cases 22-CC 347 and 22-CC-365
April 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On December 6, 1968, Trial Examiner Frederick
U. Reel issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
and General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as herein modified.
The Trial Examiner, in his Recommended Order,
directed that the Respondent cease and desist from
"inducing or encouraging any employee of Hudson
County News, Inc., or of Passaic County News,
Inc.," to engage in strike or boycott action against
Bergen. The General Counsel asks that the Order be
broadened to extend to other secondary employers
doing business with Bergen. The Trial Examiner
found that the Respondent twice violated Section
8(b)(4)(i) and (ii)(B) by inducing and encouraging
employees of Hudson and Passaic to refuse to
handle The Record and The Sunday Record Call
and by threatening, restraining, and coercing,
representatives of Hudson and Passaic, in each case
with an object of forcing or requiring Hudson and
Passaic to cease handling those newspapers. We find
that the General Counsel's exception is meritorious
and that an order extending to other secondary
employers in addition to those named is appropriate.
IBEW v. N.L.R.B., 341 U.S. 694.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Newspaper and Mail Deliverers Union of New York
and Vicinity, its officers, agents, and representatives,
shall take the action set forth in the Trial
Examiner's Recommended Order, as, so modified:
1. Delete paragraph 1 of the Recommended Order
and substitute therefor the following:
1. Cease and desist from in any manner or by any
means (including picketing, orders, directions,
instructions, requests, or appeals, however given,
made or imparted, or by any like or related acts or
conduct, or by permitting any such to remain in
existence or effect) inducing or encouraging any
employee of Hudson County News, Inc., Passaic
County News, Inc., or of any other person engaged
in commerce or in an industry affecting commerce,
to engage in a strike or a refusal in the course of his
employment to process, transport, or otherwise
handle or work on any goods, or to perform any
service; or threatening, coercing, or restraining
Hudson County News, Inc., Passaic County News,
Inc., or any other person engaged in commerce or in
an industry affecting commerce, where in either case
an object thereof is either to force or require
Hudson, Passaic, or any other person, to cease
handling the products of, or doing business with, the
Bergen Evening Record Corporation or the Call
Printing and Publishing Company.
2. Delete the first paragraph of the Appendix
attached to the Trial Examiner's Decision and
substitute therefor the following:
WE WILL NOT induce or encourage any
employees of Hudson County News, Inc., Passaic
County News, Inc., or any other person engaged
in commerce or in an industry affecting
commerce, to engage in a strike or a refusal in
the course of his employment to perform work or
render services, and WE WILL NOT threaten,
coerce, or restrain Hudson County News, Inc.,
Passaic County News, Inc., or any other person
in commerce or in an industry affecting
commerce, where in either case an object, thereof
is to force or require Hudson County News, Inc.,
Passaic County News, Inc., or any other person
to cease handling the products of, or doing
business with, the Bergen Evening Record
Corporation or the Call Printing and Publishing
Company.
TRIAL EXAMINER'S DECISION
FREDERICK U. REEL, Trial Examiner: These cases,
consolidated by order of the Regional Director, and heard
at Newark, New Jersey, on October 28, 1968, pursuant to
charges filed October 27, 1967, and September 27, 1968,
and a complaint issued October 9, 1968, present the
question whether Respondent, herein called the Union,
violated Section 8(b)(4)(i) and (n)(B) of the Act by
enmeshing two allegedly neutral employers and their
employees in a dispute between the Union and the
Charging Party, herein called the Company. Upon the
175 NLRB No 62
NEWSPAPER AND MAIL DELIVERERS UNION OF N.Y.
entire record, and after due consideration of the briefs
filed by General Counsel and the Union, I make the
following:
Findings of Fact
1. THE EMPLOYER AND THE LABOR ORGANIZATION
INVOLVED
The Company, a New Jersey Corporation, is engaged
in publishing an evening newspaper known as The Record
at its plant at Hackensack, New Jersey, and also there
publishes a Sunday newspaper, the Sunday Record Call.
The Company belongs or subscribes to various interstate
news services, publishes various nationally syndicated
columnists, carries advertising from companies who
manufacture nationally sold products, and annually
derives over $1 million in gross revenue from its
publishing operations The pleadings establish and I find
that the Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
The Call Printing and Publishing Company publishes a
morning newspaper known as The Call at the same
Hackensack plant. The Company and the Call Punting
and Publishing Company have common officers, directors,
and stockholders, operate a single-integrated enterprise
with a single labor policy, and are a single employer
within the meaning of Section 2(2) of the Act.
Hudson County News, Inc., and Passaic County News,
Inc., herein called Hudson and Passaic, respectively, are
New Jersey corporations engaged in the distribution of
newspapers and magazines including The Record. The
complaint alleges, and the answer admits, that Hudson
and Passaic are employers engaged in commerce or in an
industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act The same pleadings
establish that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
Ii. THE UNFAIR LABOR PRACTICES
A. Background
For a number of years the Company distributed The
Record by having its own employees, not members of the
Union, truck the papers to various newsdealers, including
Hudson and Passaic, whose employees are represented by
the Union. The latter employees would unload the
newspaper from the Company's trucks and would handle
its subsequent distribution. In 1964 the Company
purchased The Call from a prior owner. Before this
purchase, The Call had been distributed by employees
represented by the Union, and indeed the Union enjoyed a
collective-bargaining relationship with the prior publisher
of The Call. When the Company purchased The Call, it
created a new subsidiary corporation called Gremac to
handle the distribution, and Gremac entered into a
contract with the Union in 1964 covering the employees
who had been distributing, and who continued to
distribute, The Call. These employees, of course, were not
the same as those distributing The Record, and The Call
was not, and had never been, handled by Hudson or
Passaic. '
In 1967 negotiations between the Union and Gremac
The circulation of The Call was about 27,000, and that of The Record
about 150,000 The circulation of the latter included the area covered by
The Call and an additional area
387
for a new contract covering the distribution of The Call
reached an impasse. The Company thereupon dissolved
Gremac, and carried on the distribution of The Call by
using the same drivers who were distributing The Record,
and others hired to augment that group because of the
increased work. The Union called a strike on October 25,
1967, against the Company over the dissolution of
Gremac and the displacement of the union members who
had been employed in the distribution of The Call. The
strike was still continuing at the time of the hearing. At
no time during the strike were Hudson and Passaic
involved in any distribution or attempted distribution of
The Call.
B. The Refusal to Handle The Record
On October 26, 1967, Union Business Agent Percella
notified the chapel chairmen (the equivalent in this
industry of the union shop steward) at Hudson and
Passaic that the Union was on strike against The Record
and that the employees at Hudson and Passaic should
refuse to unload the Company's trucks. The chapel
chairmen so advised management representatives of
Hudson and Passaic and also so instructed the employees.
The latter in accordance with these instructions refused to
unload the trucks.
The Company filed a charge alleging that the Union
had violated Section 8(b)(4)(i) and (u)(B), and the matter
was disposed of by a Settlement Agreement, in which the
Union agreed that it would not induce employees of
Hudson and Passaic to refuse to handle and deliver The
Record and
[W]ould not in any manner or by any means,
including picketing, orders, directions, instructions,
requests or appeals, however given, made or imparted
or by any like or related acts or conduct or by
permitting any such to remain in existence or effect,
engaging in, or inducing or encouraging any individual
employed by Hudson or Passaic to engage in a strike
or a refusal in the course of his employment to use,
manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials or commodities
or to perform any service or in any manner or by any
means, threatening, coercing or restraining Hudson or
Passaic where in either case an object thereof is to force
or require Hudson or Passaic to cease using , selling,
handling or transporting or otherwise dealing in the
products of or to cease doing business with [the
Company].
The Union, admitting at the hearing before me that its
above-described conduct violated Section 8(b)(4)(i) and
(ii)(B), urges that it had complied with the Settlement
Agreement. The Regional Director has set that agreement
aside because in his view the conduct of the Union in
September 1968 violated the agreement. We turn,
therefore, to a consideration of that issue, because if the
latter conduct did not violate the Act, there was no basis
to set aside the Settlement Agreement, and
notwithstanding the Union's concession of violation in
October 1967, the complaint would be dismissed.
C. The Refusal To Handle the Sunday Record Call'
As noted above the Company published an evening
paper The Record and, through an alter ego, published a
'The facts set forth in this section of this Decision are based on the
record made in Cuneo v Newspaper and Mail Deliverers Union, Civil
388, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning paper, The Call. In September 1968 the
Company began publishing a new paper the Sunday
Record Call, utilizing the same facilities which were used
to publish the other two papers. The staff of both The
Record and The Call work on the Sunday Record Call.
The Company planned to distribute the Sunday Record
Call through the same drivers and wholesalers (including
Hudson and Passaic) who distributed The Record. The
circulation area of the new paper was the same as that of
The Record, including the area served by The Call and an
additional area.
The first issue of the new paper was scheduled for
Sunday, September 29, 1968. On the preceding Thursday,
September 26, the first sections of the new paper (the
comics and various inserts) were delivered to Hudson and
Passaic. That evening the Union's chapel chairman at
Hudson, Joseph Computo, told Louis Birnbaum,
Hudson's general manager, that "we are not going to put
out the Record Call advance" because "the Union don't
want us to handle it. . . . They have a strike against the
Call, that is why we can't handle it" Hudson did not
distribute the "Sunday Record Call" on that Sunday, or
so far as the record shows, on any subsequent day.'
That same Thursday Passaic's foreman, John Smith,
had a conversation with the chapel chairman at that shop,
George Fergerson. According to Smith, Fergerson stated
that the Union's business representative, Mike Alvino, had
told Fergerson "We are not supposed to handle" the
Sunday Record Call. Fergerson denied making this
statement to Smith. According to Fergerson, he merely
said that he would not handle the paper, and he believed
the other men would also refuse. Passaic, like Hudson, did
not distribute the Sunday Record Call on that Sunday or
thereafter.
D. Contentions and Conclusions
General Counsel views the case as a routine "secondary
boycott" in which the Union has enmeshed two neutrals,
Hudson and Passaic, in the course of its dispute with the
Company. The evidence shows that the Union induced or
encouraged employees to refuse to handle the Sunday
Record Call, and restrained Hudson and Passaic' from
handling it, with the object of forcing or requiring Hudson
and Passaic to stop handling that paper.
The Union contends that its primary dispute with the
Company over the distribution of The Call extends also to
the Sunday Record Call. But for that labor dispute, the
Union argues, the Sunday paper would have been
distributed, as The Call was previously distributed, by
union members. The Union urges that the Sunday Record
Call was therefore in the nature of "struck goods," and
Action No 1002-68, United States District Court for the District of New
Jersey, in which Judge Coolahan , in a proceeding brought under Section 10
of the Act, granted the Regional Director 's prayer for injunctive relief The
record made before that court was admitted into evidence before me I
note that the transcript bears the number 1138-67, but the number 1002-68
which appears on the court 's opinion appears to be correct In the
proceeding before me , General Counsel rested his case on this aspect of the
matter largely on the record made in the injunction proceeding The Union
presented some additional testimony which has been duly considered
'The evidence before me on this matter consists solely of the record
before Judge Coolahan I have no information as to events which
transpired after he issued a temporary injunction on October 23, 1968 ,
'Notwithstanding Fergerson's denial of some of Smith 's testimony, the
Union does not contest the fact that the refusal at Passaic , as well as at
Hudson , was pursuant to union directives
Hudson and Passaic, so it argues, were "allies" of the
Company in the distribution of the Sunday paper which
should have been done by union members.
The difficulty with the Union's contentions is that they
do not fit the facts of the case. There is no showing here
that the work of Hudson's and Passaic's 'employees would
have been done by the striking employees Cf. N.L R.B. v.
Business Machine, etc , Local 459, 228 F.2d 553, 559
(C.A. 2), cert. denied 351 U.S 962. Hudson and Passaic
would have been engaged in distributing The Record and,
so far as this record shows, the Sunday Record Call,
regardless of the dispute over The Call. Hudson and
Passaic are plainly separate neutrals and not under the
control of the Company Cf. N.L R.B v. Local 810,
IBEW, 299 F.2d 636, 637 (C.A 2). Certainly the Union's
defense here falls far short of that deemed insufficient in
N.L R B v. Western States Regional Council No. 3,
Woodworkers, 319 F.2d 655, 657, 658 (C.A. 9)
The Union contends that the instant case is
distinguishable from other cases under this provision of
the Act because the same unaffiliated independent union
which authorized the primary strike represents the
employees of the alleged neutral employers. This
distinction is without legal significance for purposes of this
case; the critical factor is the neutrality of Hudson and
Passaic, and not the degree of involvement of the Union.
New York Mailers' Union No. 6, ITU v. N.L R B., 316
F.2d 371, 372 (C.A.D.C.). Equally immaterial, and for the
same reason , is the peculiar circumstance that one of
Passaic's employees also worked part-time for the struck
employer To be sure, the result of this case is, as the
Union argues, to compel him "to handle a product against
which he is on strike," but this follows only because he
held two jobs, one for the struck employer and the other
for a neutral.
The Union insists that, but for the dissolution of
Gremac, employees of that company would have
distributed the Sunday Record Call, and Passaic and
Hudson would not. There is not a scintilla of evidence to
support the latter part of that contention, for Passaic and
Hudson have always handled The Record, and the Sunday
paper, according to the undisputed testimony, is
distributed in the same area as The Record and goes
beyond the area covered by The Call. The most that can
be inferred from this record is that Hudson and Passaic
would handle more copies of the Sunday Record Call
because the distributors who formerly handled The Call
(two companies known as Hackensack News and Rachles
News are mentioned in the testimony) did not continue to
handle that paper after the strike. The Union's "struck
work" argument would have more force if the primary
dispute concerned the employees of Hackensack and
Rachles, but there is no hint of this in the record.
CONCLUSIONS OF LAW
By inducing and encouraging employees of Hudson and
Passaic to refuse to handle The Record and the Sunday
Record Call, and by threatening , restraining , or coercing
representatives of Hudson and Passaic , in each case with
an object of forcing or requiring Hudson and Passaic to
cease handling those products , the Union has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(b)(4)(i ) and (ii)(B) and Section 2(6)
and (7) of the Act.
NEWSPAPER AND MAIL DELIVERERS UNION OF N.Y. 389
THE Remedy
Having found that the Union has violated Section
8(b)(4) (i) and (ii)(B) of the Act, I shall recommend that it
cease and desist therefrom, and take certain affirmative
action necessary to effectuate the policies of the Act
Accordingly, upon the foregoing findings and
conclusions and on the entire record in this case, I
recommend, pursuant to Section 10(c) of the Act, issuance
of the following
ORDER
Respondent Newspaper and Mail Deliverers Union of
New York and Vicinity, its officers, agents, and
representatives, shall-
1 Cease and desist from in any manner or by any
means (including picketing, orders, directions, instructions,
requests, or appeals, however given, made, or imparted or
by any like or related acts or conduct or by permitting
any such to remain in existence or effect) inducing or
encouraging any employee of Hudson County News, Inc.,
or of Passaic County News, Inc., to engage in a strike or
a refusal in the course of his employment to process,
transport, or otherwise handle or work on The Record or
the Sunday Record Call; or threatening, coercing, or
restraining Hudson County News, Inc., or Passaic County
News, Inc , where in either case an object thereof is either
to force or require Hudson or Passaic to cease handling
The Record or the Sunday Record Call
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post in the Respondent's business offices and
meeting halls copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms provided by
the Regional Director for Region 22, after being duly
signed by Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material. Upon request of the
Regional Director, the Respondent shall supply him with
a sufficient number of signed copies for posting by
Hudson County News, Inc., and Passaic County News,
Inc., if either desires to do so, at the sites which were
involved in this proceeding.
(b) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.`
APPENDIX
NOTICE TO ALL MEMBERS OF NEWSPAPER AND MAIL
DELIVERERS UNION OF NEW YORK AND VICINITY
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that
WE WILL NOT induce or encourage any employee of
Hudson County News, Inc., or of Passaic County
News, Inc., to engage in a strike or a refusal in the
course of his employment to perform work or render
services, and WE WILL NOT threaten, coerce, or restrain
Hudson County News, Inc., or Passaic County News,
Inc., where in either case an object thereof is to force
or require Hudson County News, Inc , or Passaic
County News, Inc., to cease handling or distributing
The Record or the Sunday Record Call.
NEWSPAPER AND MAIL
DELIVERERS UNION OF
NEW YORK AND VICINITY
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal
Building, 16th Floor, 970 Broad Street, Newark, New
Jersey 07102, Telephone 201-645-3240.
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "