Printing Utilities Branch of N.Y.

National Labor Relations Board - Board Decisions

Apr 11, 1977

228 N.L.R.B. 1360 (N.L.R.B. 1977)

1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Printing Utilities Branch of New York Typographical
Union No. 6 (Pandick Press, Inc.) and William
Greenwald . Case 2-CB-6255
April 11, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings
DECISION
On January 11, 1977, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
The Administrative Law Judge found that the
Respondent refused to refer William Gary and
William Greenwald for employment at Pandick Press
because they had lost their rights to recall and not
because they had lost their union membership. He
further found that the Respondent gave adequate
notice of the establishment of its hiring hall.
Accordingly, Administrative Law Judge Cohn dis-
missed the complaint in its entirety.
In so doing, Administrative Law Judge Cohn
declined to rule on the legality of a provision in the
current collective-bargaining agreement between the
Respondent and the printers league section of the
Printing Industries of Metropolitan New York, Inc.,
which states: "No new employees will be hired to
perform work under the terms of this agreement until
all unemployed members of the Printing Utilities
Branch are employed." There was no independent
allegation of an 8(b)(1)(A) violation based on this
contract clause, and the operation of the hiring hall
was challenged only insofar as it affected Gary and
Greenwald. As the parties did not litigate the issue,
we agree that in the posture of this case no violation
should be found.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
228 NLRB No. 183
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case was
heard at New York, New York, on August 9, 10, and 11,
1976. Upon a charge filed May 7 and served May 10, 1976,
the Regional Director for Region 2 issued the complaint in
this proceeding on June 23, 1976. The issues framed by the
pleadings are whether Printing Utilities Branch of New
York Typographical Union No. 6, herein called the
Respondent or the Union, violated Section 8(b)(1)(A) and
(2) of the Act by refusing to recall William Gary and
William Greenwald to work at Pandick Press, Inc., herein
called Pandick or the Company, because of their nonmem-
bership in the Union and because they failed to sign in at
the union hiring hall, and further whether Respondent
violated Section 8(b)(1)(A) of the Act, by failing to give
applicants proper notice of the establishment of its hiring
hall procedures.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. The General
Counsel and Respondent submitted briefs which have been
carefully considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Pandick , a New York corporation, maintains an office
and place of business in the city of New York and in other
places in various States , where it is engaged in the
operation of printing plants for the printing of financial
papers and related products. During the past year Pandick
derived gross revenues in excess of $500,000, and, in the
course and conduct of its operations , purchased paper, ink,
and other materials valued in excess of $50,000, which were
shipped directly to Pandick from States located outside the
State of New York. The complaint alleges , the answer
admits, and I find that Pandick is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
PRINTING UTILITIES BRANCH OF N.Y. 1361
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For a number of years Respondent has had collective-
bargaining agreements wth the Printers League Section of
the Printing Industries of Metropolitan New York, Inc., a
multiemployer association of which Pandick has been a
member, covering composing room employees.
William Gary and William Greenwald were both
employed in Pandick's composing room. Gary had initially
been employed in 1969 and was finally laid off on
November 16, 1973. Greenwald also commenced his
employment at Pandick in 1969 and he was laid off on
August 16, 1973. Pandick and Respondent had always
maintained a priority (seniority) list at Pandick's plant,
which indicated those employees who were regularly
employed followed by a list of substitutes, all arranged in
strict priority or chronological order dating from the
commencement of their respective employment. The
substitute list in the plant was utilized to fill in for absent
regular employees or to replace regular employees who left
the plant for whatever reason. In fact during the period of
their employment both Gary and Greenwald were laid off
for various intervals and were recalled to work at Pandick
plant. At that time, any employee could obtain a place on
the priority list by depositing his membership card with the
chapel chairman when he looked for work or began to
work for the Company.
After their final layoff in 1973, both Greenwald and
Gary received unemployment insurance compensation as
well as supplemental unemployment benefits from the
Union to which they were entitled pursuant to the
collective-bargaining agreement. In order to obtain such
benefits, from time to time they appeared at the umon hall
and indicated their availability for employment. After their
benefits ran out in 1974, both eventually obtained employ-
ment outside of the industry and were currently employed
at the time of the hearing. They had ceased paying dues to
the Union and accordingly lost their membership thereaf-
ter. Recall of employees was done purely on the basis of
the highest qualified employee on the priority list. However
the practice for daily work, that is filling in for an absent
employee, was for the Chapel Chairman to put to work the
highest priority substitute who happened to shape up for a
particular day.
Gary and Greenwald were not alone with respect to their
layoff in 1973. A total of 25 employees had been laid off by
Pandick that year resulting from the implementation of
automation in the industry at that time. To stem this tide,
the Union met with Pandick in December 1973, in an
attempt to solidify as many of the employees as they could
in their present jobs. Negotiations were conducted with
Pandick and an agreement was finally reached on Decem-
ber 12. As a result Pandick agreed to retain 30 named
employees including 4 then assigned to perform nonumon
work. It is important to point out that by virtue of this
agreement, Pandick did not guarantee 30 jobs but merely
undertook to retain 30 named employees, with the specific
understanding that this number would be reduced by
attrition. As a further protection it provided that new hires
will be affected in the clerical and copy holder classifica-
tions only when the miscellaneous classifications are
depleted. The agreement also recognized that layoffs could
be made for economic reasons resulting in a reduction in
work volume. Finally, the agreement provided as follows:
VI. If a member of the PUB is laid off for economic
reasons (as delineated in (V) above) he will have the
right to rehire in the same ratio in which he was laid off.
This recall right expires after a period of six (6) months
or less in the event that a laid-off member of the PUB
refuses a recall.
From the date of this agreement no substitute was
recalled or new employee hired until March 22, 1976, by
which time the list of 30 employees had been reduced to 23.
The Union and the Association executed a new collec-
tive-bargaining agreement on February 10, 1974, which
provided for the establishment of an exclusive hiring hall.
The agreement for hiring hall was ratified at a membership
meeting of Respondent held on February 10, 1974. Robert
Murcott, a witness for the General Counsel, who had been
chapel chairman and took part in the negotiations of the
December 1973 agreement with Pandick, was also present
at this ratification meeting. The official publication of the
Union "Final Proof," which is mailed to all members,
contained a notification of this action concerning the
establishment of a hiring hall in its issue of February 1974.
A further notice dated March 6, 1974, was sent to all
chairmen who were directed to post it on the shop bulletin
boards. The proposed rules and regulations for the
operation of the hiring hall were later published in the May
1974 issue of "Final Proof' and distributed to the
membership. Greenwald testified that he received copies of
"Final Proof' routinely but did not recall seeing the May
1974 issue. He stated that in 1974 he still continued to
receive supplemental unemployment benefits from the
Union and had gone to the hall in order to sign in for these
benefits. He further said that these benefits expired in
either the spring or summer of that year but that while he
was at the umon hiring hall he did not recall seeing other
people there seeking work. Greenwald claimed he heard
about the hiring hall very recently, meaning March 1976,
but from spring or summer 1974 until that time he had no
contact with the Union whatsoever nor did he inquire
about getting work through the Union. In 1974 Greenwald
said that he attended one or two union meetings but does
not remember what transpired.
For his part Gary testified that he was not sure that he
received copies of "Final Proof" stating that he did not
receive them after 1973. However, he does admit that he
saw the proposals concerning the hiring hall sometime
around August 1974. He said that he did not read them but
was told by someone that there was a union hiring hall.
Gary said that he had been in the hospital in 1974 and may
have gone to the hall after his discharge from the hospital
in June of that year in order to sign in for his supplemental
checks.
The collective-bargaining agreement in force at the time
of the alleged unfair labor practices had become effective
October 4, 1975. This agreement continued the exclusive
hiring hall subject to certain changes in the rules and
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedures which are enumerated therein . Included among
the changes is the following:
It is agreed that effective with ratification, no new
employees will be hired to perform work under the
terms of this agreement until all unemployed members
from the Printing Utilities Branch are employed.
Thereafter , new miscellaneous composing room em-
ployees shall be hired exclusively through a hiring hall.
Early in 1976 Pandick purchased a company called
Security Columbian Banknote, herein called Columbian.
Employees of Columbian, represented by the Union, were
all laid off at the time of the purchase. The testimony is
undisputed that in accordance with industry custom, the
employees of the purchased company are endtailed to the
priority list of the purchaser, as distinguished from a
merger transaction in which the acquired employees are
dovetailed. On March 22, four former employees of
Columbian were recalled to work by Pandick.
Greenwald and Gary, who were still friendly with some
of the employees at Pandick, were informed that Pandick
was hiring again . Gary went to the union office and saw
David Curtin, president, and told him he would like to talk
about his job. Curtin directed him to Howard Dwyer, the
hiring hall administrator, whom Gary saw accompanied by
a friend, Herman Ford, an employee of Pandick. At this
point the testimony of the witnesses is at variance. Gary
stated he told Dwyer that he heard of people being hired
from another firm and he wanted to know why. He said
Dwyer told him that his union dues were not paid up, he
had not shown up at the hiring hall, and he was no longer a
member of the Union. Gary said he told Dwyer that he was
the top man on the priority list but Dwyer said it did not
matter . On the other hand, Dwyer testified that he told
Gary he had no recall rights at Pandick and that because of
the contract they were locked out. Dwyer also stated that
he said nothing to Gary about union dues. At the outset,
Ford's testimony supported Gary when he stated that
Dwyer had told Gary he could not get his job back because
his dues were not paid up and he was no longer a member
of the Union. But further in his direct testimony Ford also
said that Dwyer had pulled out a list and the names of the
substitutes were not on it, a fact not mentioned by Gary.
On cross-examination , Ford said that Dwyer had told Gary
he was not on the priority list. Ford also verified that in
March 1976 the names of Sweta, Miller, Lashley, and
Dever (former Columbian employees) were on the Pandick
priority list. In all the circumstances I credit Dwyer's
version of the conversation rather than Gary. I found Gary
to be an evasive witness particularly with respect to his
testimony concerning the hiring hall. His answers were
contradictory as first he responded that he did not know
about the hiring hall, and at another point, he said he had
heard about it but did not know how it worked. Then he
admitted that he had signed in on occasion at the hall and
that the last time he sought work at the hall was around
August 1974. But Gary also stated that he went to the
hiring hall after he was discharged from the hospital in
June 1974 and signed in from time to time, although at still
another point he said he first learned about the hiring hall
in August 1974. In addition he testified that he received 39
weekly benefit checks from the Union for which he would
have gone to the union hall and signed in for work. Finally
in his testimony Gary did not indicate that Dwyer had
referred to the priority list of Pandick, a fact brought out
by Ford, but only on cross-examination.
Greenwald, who is now employed in New Jersey,
testified he had been informed about March 22, 1976, that
Pandick was rehiring. He said as soon as he heard this he
telephoned Dwyer and asked to have his job back.
Greenwald states that Dwyer told him he had not kept up
with his dues and had not signed up at the hiring hall and
therefore could not be hired back. Greenwald then spoke
to Curtin who also told him that he had not paid dues and
did not sign up at the hall. He said that he was never
notified that he had to report to the hall and pay his dues in
order to maintain his place on the priority list. Greenwald
stated that during the period of his unemployment
commencing August 16, 1973, he visited the Union and
signed up for work in order to get his supplemental
benefits. After the benefits ended he no longer went to the
union hall for the purpose of signing in for work. He also
stated that he was receiving the union publication, "Final
Proof," in the mail but did not recall getting the one for
May 1974. With regard to the establishment of the hiring
hall, although he had from time to time been in contact and
had discussions with some of the other union members
with whom he worked including Murcott, no one ever told
him about the establishment of the hiring hall. Greenwald
claims the first he heard about it was recently in March
1976 and that he himself has had no contact with the
Union since 1974.
Curtin testified that he spoke on the telephone to
Greenwald in March when the latter called and inquired
about the job at Pandick. Curtin told him that he had no
priority at Pandick. Apart from the question of the Pandick
priority list, Curtin further testified that the benefits as to
guaranteed employment and the hiring hall under the 1975
agreement applied only to people who were employed or
unemployed but seeking work in the industry as of October
1975. He said to his knowledge both Gary and Greenwald
were not seeking employment in the industry at that time.
His position then was that even if they had continued
membership and paid their dues they would not be entitled
to reemployment at Pandick for that reason as well as their
loss of recall under the 1973 special agreement with
Pandick. Before calling Curtin, Greenwald had also
telephoned Dwyer and asked to have his job back. He
states that Dwyer told him he had not kept up with his dues
and had not signed up at the hiring hall and therefore he
could not be hired back. Dwyer states that when he
received the inquiry on the telephone from Greenwald as to
why he was not hired, he merely told him that he did not
have any priority at Pandick. Dwyer said the call lasted less
than a minute and nothing was said about the lack of
payment of dues. He did say that he told him that he was
not signing in and had probably not signed in for perhaps 2
years before March 1976. I credit the version of the
telephone conversation as reported by Dwyer as the more
likely and more probable of the two. Since Greenwald was
inquiring about recall to his former job at Pandick which
would be dependent upon his rights on the priority list,
PRINTING UTILITIES BRANCH OF N.Y.
Dwyer's response would be more naturally keyed to that
rather than dues payments.
B. Analysis and Conclusions
The issue as presented by the complaint and the evidence
adduced at the hearing is not one of whether the Union
maintained and operated a hiring hall on a discriminatory
basis . It is uncontroverted that neither Gary or Greenwald
sought employment in the regular fashion through the
hiring hall . Indeed it is clear that Greenwald had not been
to the Union 's office or hiring hall for a least 2 years and
then he merely telephoned in March 1976 ; and similarly
Gary had not been there for a long period of time . Actually
both of them were working at different occupations since at
least some time in 1975 . So what Gary and Greenwald were
seeking , when the former went to the hall and the latter
telephoned in March 1976 , was recall to their jobs at
Pandick . The question then is whether Respondent
discriminatorily refused to recall them or caused Pandick
not to recall them to their former jobs . This question is
dependent upon whether they had any recall rights or
priority to the jobs in Pandick. I find and conclude that
their rights of recall were effectively cut off as a result of
the December 1973 agreement quoted above.
This agreement was reached after a period of time during
which Pandick had laid off many employees because of
automation . It appeared at the time that Pandick would
continue to lay off even greater numbers and it was the
hope of the Union to salvage as many jobs for the
employees and its members as possible . Murcott, the
General Counsel's witness , testified that , as a member of
the negotiating group , he would have been happy to agree
to almost any number which Pandick would undertake to
keep employed . The agreement was made finally for the
Company to retain 30 named employees , not 30 jobs, who
would not be replaced if they left for whatever reason. By
early 1976 the number remaining was down to 23. The
General Counsel argues that the substitutes ' list, including
Gary and Greenwald , remained in tact because the 1973
agreement did not refer to substitutes , nor were they even
discussed during the negotiations . In the context of the
circumstances surrounding the negotiations and the execu-
tion of that agreement , this is not surprising . It is clear that
there was no need to discuss substitutes because no need
was envisioned for their services. The Company wanted to
reduce its staff and the union negotiators were happy to
save the jobs of 30 named employees, a number which
would diminish by attrition . Obviously there was no place
for the substitutes.
The General Counsel further argues, in an attempt to
maintain the recall rights of substitutes , that this agreement
did not cut off anyone 's recall rights unless an individual
on layoff refused a recall . I do not read paragraph VI of the
agreement in that manner . The sentence in question reads
"This recall right expires after a period of six (6) months or
less in the event that a laid-off member of the PUB refuses
a recall ." It is contended that this sentence means that a
right of recall expires only in the event that a member
refuses a recall . It is urged that the absence of a comma
after the words "6 months," compels such interpretation.
While it may have been more artistic , grammatically, to
1363
have inserted a comma at that point , the language is clear
that the recall rights expired after 6 months of economic
layoff but in less time if the laid-off member refused a
recall . The phrase "after a period of 6 months or less"
would have no meaning otherwise . The agreement to retain
the 30 employees , subject to attrition , recognized the
possibility of economic layoffs which Pandick was still free
to make . In such event it appears probable that the 6
months cutoff of recall was just another means of hastening
the process of attrition contemplated by the agreement. Of
course , it is understandable that the General Counsel
should argue that the recall cutoff operates only when a
laid-off employee refuses a recall . He must contend that no
recall rights are cut off by the agreement in order to keep
alive the recall rights of the substitutes . Otherwise to
concede that the recall rights of the 30 employees named in
the agreement could be cut off after 6 months of economic
layoff while recall of substitues would not be cut off
because they are not named , would result in granting
greater recall rights to substitutes than to the 30 more
senior employees designated and retained by the agree-
ment . Such an interpretation of paragraph VI of the
December 1973 agreement , as urged by the General
Counsel, is strained and, moreover improbable, in view of
all the circumstances both preceding and subsequent to the
agreement . I find therefore that the substitutes, although
not specifically referred to in the agreement, lost their
rights of recall by virtue of the agreement and its
subsequent enforcement. I further find that it was for this
reason that Respondent did not refer Gary and Greenwald
to Pandick rather than their lack of union membership and
their failure to sign in at the union hiring hall. Accordingly,
I shall dismiss that portion of the complaint.
In addition, I find no merit to the allegation that
Respondent violated Section 8(b)(1)(A) of the Act by its
failure to give proper notice of the establishment of the
hiring hall and its procedures . Publication of the proposal
for the hiring hall and the establishment of the hall was
made in at least two issues of the union paper , "Final
Proof," which is routinely mailed to all members at their
last known address. A letter on the subject , dated March 6,
1974, was posted by all chapel chairmen . Gary himself
admitted that he learned about the hiring hall in August
1974. Both Gary and Greenwald received the full quota of
39 supplemental unemployment benefit checks from the
Union and they had to go to the union hall to sign in for
work in order to obtain them . Greenwald stated that he
received the "Final Proof" in the mail but just did not
recall getting the one for May 1974 . Moreover both Gary
and Greenwald stated that they had friends or acquain-
tances still working at the plant including Murcott, the
former chapel chairman , who had even attended a meeting
concerning the proposals for a hiring hall. The current
collective-bargaining agreement contains the hiring hall
provisions. In all these circumstances I find that notice of
the establishment of the hall was given and that Gary and
Greenwald at the least should have known about it. In this
connection , it is also noted that neither of them showed
any interest in the Union , the hiring hall or the industry for
2 years. Accordingly I find that Respondent did not violate
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(bXl)(A) of the Act by its failure properly to give
notice of the establishment of the hiring hall.
Nor do I find, as urged by the General Counsel, the
endtailing of Columbian's former employees to the Pan-
dick list as substitutes in 1976 to be inconsistent with the
disappearance of Pandick's substitutes as a result of the
December 1973 agreement. The two events are completely
unrelated as to time and circumstance. There is nothing
improper in the agreement between Respondent and
Pandick to endtail the Columbian employees as a result of
its purchase of Columbian nor does General Counsel allege
it to be illegal.
There remains for consideration the effect of the
provision in the current collective-bargaining agreement
which states that "No new employees will be hired to
perform work under the terms of this agreement until all
unemployed members from the Printing Utilities Branch
are employed." This provision is set forth in the hiring hall
regulations of the collective-bargaining agreement, and it
would appear that such a provision is illegal and discrimi-
natory. However I have found that Gary and Greenwald
were not referred to their former jobs because of their loss
of right to recall rather than their lack of union member-
ship. Neither of them had made any attempt to use the
hiring hall procedures for a period of approximately 2
years. Their only connection to the hiring hall was when
Gary visited and Greenwald telephoned in March 1976 to
find out why they were not recalled . The General Counsel
has merely referred to this provision as some evidence that
they were denied recall because of their nonmembership.
There was no independent allegation of an 8 (b)(1)(A)
violation based on this provision of the contract either in
the complaint, at the hearing, or in the briefs, and,
accordingly, I will not find such a violation in the posture
of this case.'
CONCLUSIONS OF LAW
1. Pandick Press, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2
The complaint is dismissed in its entirety.
i International Association of Iron Workers, Local No 10 (Guy F. Atkinson conclusions , and recommended Order herein shall , as provided in Sec
Company), 196 NLRB 712, 713, fn 5 (1972) 102.48 of the Rules and Regulations , be adopted by the Board and become
2 In the event no exceptions are filed as provided by Sec 102 46 of the its findings , conclusions , and Order, and all objections thereto shall be
Rules and Regulations of the National Labor Relations Board , the findings, deemed waived for all purposes.