Reliable Newspaper Delivery, Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1950

88 N.L.R.B. 659 (N.L.R.B. 1950)

In the Matter of RELIABLE NEWSPAPER DELIVERY, INC . and GEORGE
ZEHL, GEORGE O'GRADY, FRANK VELARDO, AND FORTUNATO SALERNO
(INDIVIDUALS)
Case No. 2-CA-506.-Decided February 15, 1950
DECISION
AND
ORDER
On October 31, 1949, Trial Examiner George Bokat issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report, 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 proceeding to a three-
member panel [Chairman Herzog and Members Houston and
Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs filed by the Respondent
and the General Counsel, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following additions and modifications :
1. We agree with the Trial Examiner that the Respondent by mak-
ing retroactive wage payments to employees who were union mem-
bers, while failing and refusing to make such payments to employees
who were not union members, discriminated in regard to the terms
and conditions of employment of the nonunion employees in violation
of Section 8 (a) (3) of the Act, and thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
88 NLRB No. 135.
659
882191-51-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anteed in Section 7, in violation of Section 8 (a) (1) of the Act: How-
ever, we predicate our finding on the Respondent's disparate treatment
of employees on the basis of union membership or the lack of it; we do
not find it necessary to pass upon, and therefore do not adopt, other
independent reasons given by the Trial Examiner.2
2. Although the charge in this case states that the Respondent dis-
criminated with respect to four named employees, the complaint al-
leged, more broadly, that the Respondent discriminated against all
of its nonunion employees .3 On the basis of the entire record in this
case, it seems clear that all nonunion employees, who were similarly
situated, including the four named employees, suffered identical dis-
criminatory treatment. Accordingly, we shall provide that the Re-
spondent make whole-all nonunion employees similarly situated who
were in its employ during the period in question for any loss of pay
they may have suffered by reason of the Respondent's failure to make
retroactive payments to them in the same manner as it did to its
union employees'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Reliable News-
paper Delivery, Inc., Elizabeth and Jersey City, New Jersey, and its
agents, officers, successors, and assigns, shall :
1. Cease and desist from encouraging membership in Newspaper
and Mail Deliverers' Union of New York and vicinity or any other
Labor organization of its employees, by discriminating in regard to any
term or condition of employment of any of its employees, and from
otherwise interfering with the right of its employees to join or assist
1 Like the Trial Examiner , we reject the Respondent's contention that the proviso in
Section 8 ( 3) of the Act prior to amendment permits the conduct charged here. The
proviso in Section 8 ( 3) and the corresponding proviso in Section 8. ( a) (3) of the
amended Act permit the conditioning of employment , under certain circumstances, upon
membership in a particular labor organization ; they do not permit disparate wage treat-
ment of employees on the basis of union affiliation.
The Respondent , by way of defense , urges its obligation to make retroactive payments
to the union members under the provisions of a contract with the Union . We see no
merit in this contention inasmuch as there is nothing in the contract precluding the
Respondent from making the same payments to its nonunion employees . Moreover, as the
Trial Examiner found, although the contract called for retroactive payments for the period
of July 17 to October 17 , 1948 , the payments by the Respondent included one additional
week, which, in any event, was not required by the contract provision.
2 For example , the Trial Examiner's reference to Rutland Court Owners, Inc., 44 NLRB
587, as well as his analysis concerning the validity of the contracts in question.
3 See Cathey Lumber Company, 86 NLRB 157 ; Olin Industries, Inc., 86 NLRB 203 ;
J. H. Rutter-Rex Manufacturing Company, Inc., 86 NLRB 470.
This remedy is necessary to effectuate the policies of the Act even though the Respond-
ent may have in good faith believed that its conduct was protected by the contract. Cf.
Combustion Engineering Company, Inc., et el., 86 NLRB 117.
RELIABLE NEWSPAPER DELIVERY, INC. 661
a labor organization of their own choosing or with their right to re-
fraiii from such activity except to :the extent that such right may be
affected by an agreement requiring membership in - a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole George Zehl , George O'Grady, Frank Velardo,
Fortunato Salerno, and all other nonunion employees who were sim-
ilarly situated , in the Respondent 's employ during the period from
about July 17 to about October 24 , 1948, for any loss of pay they may
have suffered by reason of the Respondent 's failure and refusal to pay
said nonunion employees retroactive back pay for the afore -mentioned
period, in the same manner as paid by the Respondent to its union
employees ;
(b) Post immediately in conspicuous places at its premises at Eliza-
beth , New Jersey , and warehouse at Jersey City, New Jersey, where
notices to its employees are customarily posted, copies of the notice
attached hereto as Appendix A29 Copies of said notice , to be furnished
by the Regional Director for the Second Region , shall, after being
duly signed by the Respondent 's representative , be posted and main-
tained by it for a period of sixty ( 60) consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered , defaced , or covered by any other material;
(c) Notify the Regional Director for the Second Region, in writing,
within ten ( 10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to d Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage membership in NEWSPAPER AND MAIL
DELIVERERS' UNION OF NEW YORK and vicinity by discriminating
in regard to any term or condition of employment of our
employees.
WE WILL NOT otherwise interfere with the right of our em-
ployees to join or assist a labor organization of their own choosing
In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A DECISION AND ORDER," the words, "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or with their right to refrain from such activity except to the ex-
tent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized by Section 8 (a) (3) of the Act.
WE WILL make whole George Zehl, George O'Grady, Frank
Velardo, Fortunato Salerno, and all other nonunion employees
in our employ, who were similarly situated, during the period
from about July 17 to about October 24, 1948, for any loss they
may have suffered by reason of our failure and refusal to pay said
nonunion employees retroactive back pay for the afore-mentioned
period, in the same manner as we paid our union employees.
RELIABLE NEWSPAPER DELIVERY, INC.,
Employer.
By----------------------------------------
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Samuel M. Kaynard, for the General Counsel.
Bandler, Haas & Baas, by Mr. Julius Kaas and Mr. Jack E. Bronston, of New
York, N, Y., for the Respondent.
STATEMENT OF THE CASE
Upon a charge filed on November 30, 1948, by George Zehl, George O'Grady,
Frank Velardo, and Fortunato Salerno, the General Counsel of the National Labor
Relations Board, called herein respectively the General Counsel and the Board,
by the Regional Director of the Second Region' (New York, N. Y.), issued his
complaint dated July 26, 1949, against Reliable Newspaper Delivery, Inc., herein
called the Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge and
the complaint, together with notice of hearing, were duly served upon the
Respondent.
With respect to the unfair labor practices, the complaint alleged, in sub-
'stance, that Respondent, pursuant to the terms of a contract between it and
Newspaper and Mail Deliverers' Union of New York and Vicinity, herein called
the Union, instituted an increased wage rate for its employees on or about
October 25, 1-948; that on or about November 28, 1948, the Respondent paid to
those employees who were members of the Union a sum constituting the differ-
ence between the old wage rates and the newly increased wage rates for the
period from about July 16, 1948, to about October 21, 1948, but failed and refused
to pay such sum to those of its employees who were not members of the Union,
'thereby violating Section 8 (a) (1)' and (3) of the Act.
RELIABLE NEWSPAPER DELIVERY, INC . 663
.In its duly filed answer, the Respondent, while admitting that it had made
payment of a retroactive wage increase to its employees who were members of.
the Union but had failed to make such payment to its nonunion employees,
denied that by so doing it had violated the Act. The Respondent further denied
that it was engaged in commerce within the meaning of the Act.
Pursuant to notice, a hearing was held on August 15 and 16, 1949, at New
York, New York, before George Bokat, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel and the Respond-
ent were represented by counsel and participated in the hearing. Full opportun-
ity to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. At the conclusion of the General
Counsel's case-in-chief the Respondent moved to dismiss the complaint. The
motion was denied. The General Counsel's motion to conform the pleadings to
the proof was granted. The parties presented oral argument and filed briefs
with the undersigned.
Upon the entire record in the case and from observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation organized and operating under the laws of the
State of New Jersey, is engaged at Elizabeth and Jersey City, New Jersey, in
the purchase, sale, delivery and distribution of daily and Sunday newspapers,
magazines, and periodicals. During the year 1948, the Respondent caused to be
purchased, transferred, and delivered to its office, garage, and warehouses located
in the State of New Jersey, newspapers, magazines, and periodicals valued at an
amount in excess of $1,500,000, approximately all of which were transported to
the Respondent's premises in New Jersey from points outside the State of
New Jersey.
Respondent has the exclusive franchise for the delivery and distribution of the
New York Times, The New York Herald Tribune, and The Sunday Journal-
American to retail newsdealers in certain designated areas within the State
of New Jersey. The New York Times and the New York Herald Tribune are
daily and Sunday newspapers of general circulation, printed and published in
the City and State of New York. The Sunday Journal-American is likewise
printed and published in the City and State of New York. The Board has taken
jurisdiction over the newspaper publishing industry generally, and specifically
has found the publisher of the New York Times to be engaged in commerce
within the meaning of the Act,' and likewise Hearst Consolidated Publications,
Inc., the publisher of the Sunday Journal-American.'
Magazines and other publications purchased, sold, and distributed by Respond-
ent include those published and printed by The Crowell-Collier Publishing Com-
pany in Springfield, Ohio ; Kahle News Publishing Company, Mt. Morris, Illinois ;
Science and Mechanics Publishing Co., Chicago, Illinois; Radio Electronics,
Philadelphia, Pennsylvania, and Outdoorsmen Publishing Co., Chicago, Illinois.
Said publishing companies and the publishers of other magazines, periodicals,
and publications handled by the Respondent utilize paper, type, ink, machinery,
and other supplies valued in excess of millions of dollars, a substantial portion
1 The New York Times Company, 32 NLRB 928; 26 NLRB 1094.
2 Hearst Consolidated Publications, Inc., 10 NLRB 1299; 83 NLRB 41.
664 DECISIONS OF NATIONAL LABOR RELATIONS .BOARD
of which is shipped to the plants of said publishers from points outside the State
wherein said publications are printed and published.'
In the course of its operations, Respondent makes frequent use of the United
States Mail and of the Railway Express Agency to distribute some of its news-
papers, magazines, and periodicals, and to return to the publishers, located in
points outside the State of New Jersey, unused and return publications. In the
course of Respondent's delivery operations, none are made outside the State
of New Jersey.
The Respondent contends that the Board should not assert jurisdiction herein
because the "essentially local" character of its business "would not effectuate
the policies of the Act." The Board, however, has already asserted jurisdiction
over an identical enterprise.4 I find, contrary to the contention of the Respondent,
that its operations sufficiently affect commerce within the mewling of the Act to
warrant assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Newspaper and Mail Deliverers' Union of New York and Vicinity is an unaf-
filiated labor organization within the meaning of the Act admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Contractual relations between the Respondent and the Union
The essential facts are not in dispute. At all times material herein, the
Respondent employed 14 employees, apart from officials, for the handling and
delivery of newspapers and other publications. Six of the 14 were members of
the Union, 8 were not. Harry D. Goldstein, the Respondent's vice president and
general manager, also served as the foreman. As such, he was required by the
Union's constitution and bylaws to be a member of the Union and at the time
of the hearing was still a member in good standing.
For several years prior to 1946 the Respondent and the Union were in con-
tractual relations. On January 2, 1946, they made a new agreement which pro-
vided in part as follows :
AGREEMENT made this 2nd day of January, 1946, by and between RE-
LIABLE NEWSPAPER DELIVERY, INC., hereinafter referred to as the
"Employer"; and NEWSPAPER AND MAIL DELIVERERS' UNION OF
NEW YORK AND VICINITY, hereinafter called the "UNION", for and in
behalf of the members thereof now employed and hereafter to be employed
by the Employer and collectively designated as the "Employees".
1. The employer hereby agrees to employ only members of the Union in
the delivery and handling of newspapers, magazines, periodicals, publications
and merchandise, in the operations performed by the following; routemen;
recoverymen ; Canadamen ; distributors and tiers ; chauffeurs ; relay men ;
carriers, delivery of advances; wrapperwriting and pasting of labels on
wrappers (except the shipping and re-order slips) ; insertion of newspapers;
putting of labels in racks ; return room; newspaper and magazine stock
8 The names of some of the periodicals exclusively distributed by the Respondent in its
geographical area include Cue, Colliers,. Woman's Home Companion, American Magazine,
Radio Electronics , Science and Mechanics , as well as sundry comic books, and western story
and detective story magazines.
° Essex County News Co., Inc., 75 NLRB 697.
RELIABLE NEWSPAPER DELIVERY, INC . 665
room ; picking"up returns from newsdealers and if same are to be delivered
by Employer 's trucks .to the publishers, this work is to be done by Union men.
Members of the. Uni on may.be. required by the Employer either on different
days or on any one day to perform any one or more of the operations covered
in this paragraph but no member of the Union who is or bas been perform-
ing satisfactorily the operation or operations assigned to him shall be dis-
charged because of his inability to perform some other operation ; and no
member of the Union shall be refused employment for the performance of any
operation or combination of operations as to which lie is qualified solely
because he is not qualified to perform some other operation.
2. The Union shall furnish at all times and at regular time rates as many
men as may be required by the Employer, such men to be competent and
able to perform the particular operation for which they are required .. .
when the Union fails to furnish such men promptly, the Employer is author-
ized to meet its needs by employing such men as it may be able to obtain;
if the men so employed are not members of the Union they shall be employed
only so long as the Union does not furnish members of the Union willing
and qualified to take their places, but any man so employed shall be allowed
to complete his day's work. Nothing herein contained is to be construed as
conferring of power upon the Employer to till a regular situation with anyone
not a member of the Union. [Emphasis supplied.]
The contract was to be effective on October 1, 1946, and run to October 16, 1947.
Prior to the effective date of this agreement, however, the parties on August 22,
1946, entered into a "Supplementary Agreement" which extended "for the period
of one year to and including October 16, 1948, the contract existing between them
with only such changes as are hereinafter specified."
Again, on October 9, 1947, the Respondent and the Union executed a supple-
mentary agreement providing for an increased wage scale and which concluded
with the following clause :
3. In the event that the parties enter in a new written contract effective
from the expiration of the existing contract which new contract shall expire
no earlier than three months after the effective term of any new written con-
tract which the Union may enter into with the Publishers' Association of
New York City, then and in such event, the wage rates provided in such new
contract between the parties hereto shall be applicable retroactively for the
last three months of the present existing contract between the parties hereto
in lieu and instead of the wage rates provided in the present existing contract
between the parties hereto for the said three months period.
On October 25, 1948, the parties executed a new agreement , effective as of that
day, the Respondent this time specifically recognizing the Union " as the exclusive
representative for collective bargaining for all of its employees who perform
all work in the delivery and handling of newspapers, magazines , periodicals,
publications and merchandise." Besides providing for an increase in the wage
rates it contained the following clauses, among others :
2-a. The Union offers to furnish at all times and at regular time rates as
many . men as may be required by the Employer, .. .
2-b. The Employer agrees to employ only members of the Union thirty
days following the effective date of this agreement , it being understood that
any new employees employed after the effective date of this agreement as
A
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a regular situation holder be required to become members of the Union
thirty days following the beginning of employment.
B. Payment of the back pay differential to the union employees
As we have seen, the Respondent had obligated itself under the supplementary
agreement of October 9, 1947, to apply the wage scale of the new agreement
retroactively to the last 3 months of the old agreement. The Respondent agreed
to extend his period for 1 week and it ran therefore from about July 17, 1948,
to about October 24, 1948. As stated above, the Respondent had in its employ
during this period 14 employees. In discharging its obligation, however, the Re-
spondent first determined which of the 14 employees were union members and
which were not. On about November 28, 1948, the Respondent therefore paid
to the 6 employees who were members of the Union a sum of money constituting
the difference between the old wage rates and the newly increased wage rates
for the period of employment from about July 16 to October 24, 1948. The Re-
spondent "failed and refused" to pay the same differential to its 8 nonunion
employees (including the 4 complainants herein) according to a stipulation in
evidence, "because said employees who were not members. of the Union, were
not covered by the contract dated January 2, 1946 and the Supplementary Agree-
ments dated August 22, 1946 and October 9, 1947." The said stipulation between
the parties further provides :
In determining which of Respondent's employees' were covered by the
contract dated January 2, 1946 and the Supplementary Agreements and were
o to be paid the amount constituting the difference between the old wage
rates and the newly increased wage scale of October 25, 1948. for the period
of employment from about July 16, 1948 to about October 24, 1948, and in
determining which of Respondent's employees were not covered by said
contracts and were not to be paid such sums of money the membership or
non-membership of Respondent's employees in the Union was the determina-
tive factor and Respondent's action in making or not making said payments
to the employees was based on the membership or non-membership of the
employees in the Union.
C. Contentions of the parties
The General Counsel reduces the gravamen of his case to one simple issue,
namely, that the Respondent's action in paying the back pay differential to one
group of union employees and withholding the same payment from another group
of nonunion employees constituted a violation of Section 8 (a) (1) and (3)
of the Act. He argues that the disparate treatment admittedly based upon
union membership or the lack of it (1) interfered with, restrained, and coerced
the employees in the exercise of the right guaranteed by Section 7 to join or
to refrain from joining a labor organization, and (2) discriminated against
employees with respect to terms or conditions of employment thereby encourag-
ing membership in a labor organization.
The General Counsel makes no attack upon the validity of the 1946 agree-
ment or its supplements nor upon the 1948 agreement.`
This, despite the fact that both the 1946 and 1948 contracts are vulnerable. While
this issue is not before me , an evaluation of the significant clauses and the practice of the
Union in not admitting nonunion employees of the Respondent to membership is helpful
in considering the Respondent's contention that it did not, as a matter of fact or law,
encourage them to join the Union in violation of Section 8 (a) (3). It appears that the
RELIABLE NEWSPAPER DELIVERY, INC. .667
The Respondent contends: (1) that it was obligated by the 1946 contract and
its supplements, the validity of which the General Counsel does not attack, to
make retroactive payments to the union members only. And says the Respond-
ent, "that we met in full. The employer in this case has been guilty only of
the time-honored business practice of not spending money which he is not obli-
gated to spend." The Respondent further relies on the proviso to Section 8 (3)
of the Wagner Act which permitted the making of an agreement requiring mem-
bership in the contracting union "as a condition of employment" ; (2) that there
could be no violation of Section 8 (a) (3) because the Respondent's failure to
make the retroactive payments to the nonunion employees did not have the
effect of encouraging membership in the Union since the four complainants had
already applied for "and were actively pursuing membership in the Union" ;
(3) that in order to prove a violation of Section 8 (a) (3) there must be proof
of both an employer's purpose or motive to encourage membership in a labor
organization as well as the effect, and that in this case there is neither.
D. Concluding findings
Since the Respondent admittedly engaged in disparate treatment of its em-
ployees based upon their membership or lack of membership in the Union, I
will treat first with the Respondent's contentions in the order set forth above.
(1) Respondent points to the 1946 contract and. supplements as requiring it to
make retroactive payments to its union employees, but nothing in the contract
compelled the Respondent to refrain from making the same payments to its non-
union employees. An employer cannot seek refuge in a contract, even though
valid, if by the performance thereof a basic provision of guarantee of the Act
is violated.' Nor can the Respondent rely upon the proviso to Section 8 (a) (3),
or 8 (3). prior to amendment, as a defense to the disparate treatment of its
employees. Both provisos permit one form of discrimination, namely, a require-
ment that as a condition of employment, an employee be a member of a labor
organization. They do not otherwise permit discrimination in regard to terms
and conditions of employment. At the hearing, upon questioning by the Trial
1946 agreement is discriminatory because its benefits are limited to members of the Union
"now employed and hereafter to be employed." Although ostensibly calling for a closed
shop, in practice the 1946 agreement did not operate that way. For years the union and
nonunion employees performed identical tasks, yet the nonunion employees were subject
to being discharged any time the Union supplied a qualified union member. Despite the
fact that the nonunion employees had applied for membership the Union failed to act on
their applications. The constitution and bylaws of the Union provide that by a two-thirds
vote of the "General Body" the "books of this Union shall remain closed" to new members
with the exception that under certain conditions "one legitimate male issue" of a deceased
member could be admitted to membership . It therefore clearly operated as a closed union.
The Respondent undoubtedly was aware of this practice particularly since Vice-President
and General Manager Goldstein was a union member. If it were not for Section 102 of the
Act the closed-shop provisions of the 1946 agreement (which expired on October 16, 1948)
would be illegal as they provide for a greater degree of union security than is permitted
by Section 8 (a) (3). While the union security clause of the 1948 contract does meet the
30-day requirement of Section 8 (a) (3), it does not meet the requirement of Section
9 (e) (1) as this clause was made effective without the holding of the union authorization
election required by that section. Even if the prerequisite had been met, the nonunion
employees who were required to become members of the Union either 30 days after the
effective date of the agreement or 30 days after their employment by the Respondent could
not do so because of the refusal of the Union to admit them to membership. This situation
was still in effect at the time of the hearing.
6 See Rutland Court Owners, 44 NLRB 587; 46 NLRB 1040; N. L. R. B. v. American
White Cross Laboratories, 160 F. 2d 75 (C. A. 2).
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner, the Respondent vacillated somewhat as-to whether the 1946 agree-
ment was a members-only contract covering only the union employees or was an
exclusive bargaining agreement for the benefit of all the employees. But in
relying on the proviso to Section 8 (3) Respondent obviously must be contend-
ing that it was an. exclusive bargaining agreement. Since the contract was
applicable to all of the employees, I find difficulty in following Respondent's
argument that the contract can be utilized to justify payment to the union
employees and nonpayment to the nonunion employees.' The basic difficulty
arises out of the fact that the contract contemplated only the employment of
union members with the exception of temporary personnel. However called,
the: latter group were really permanent employees. - The Union would not admit
them to membership and evidently never made any attempt to displace them
by. qualified union members, all to the knowledge of the Respondent. I find
that the contract of 1946 and its supplements do not constitute a defense to the
complaint under the facts here admitted.. (2) Nor can I find any merit in
Respondent's contention that its actions did not in fact encourage membership
in the Union. ". . . the test of interference, restraint and coercion under . . .
the Act does not turn on the employer's motive or on whether the coercion
succeeded or failed . . . The test is whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere with the free exercise of
employee rights under the Act."' While three of the complainants had applied
for membership in the Union prior to the payment of the back-pay differential
to the union employees, the failure of the nonunion employees to receive such
back pay would have the reasonable effect of strengthening and increasing their
desire to join. Similarly, the known favored treatment of union as compared
to nonunion employees would reasonably tend to encourage continued member-
ship in the Union. While I do not feel that I am bound by the testimony of
employees that they were or were not affected by Respondent's actions, the
record does reveal that while Fortunato Salerno had in mind applying for.
membership in the Union shortly after he was hired, it was the payment of the
retroactive back pay that "mainly" caused him to send in his application. (3)
As to the Respondent's last argument, that its actions could not be adjudged an
unfair labor practice because they were not motivated by union animus or an
intention to encourage membership in a labor organization, I am again con-
strained to find it without merit. Respondent is charged with a violation of
Section 8 (a) (1) as well as 8 (a) (3). The basic rights guaranteed to employees
in Section 7 of the Act, and protected by Section 8, cannot be made dependent
upon the elusive factor of an employer's motive or intention ; these rights must
7 As the Supreme Court said in J. I. Case v. N. L. R. B., 321 U. S. 332, "Collective bar-
gaining between employer and representatives of a unit usually a union, results in an
accord as to terms which will govern hiring and work and pay in that' unit.... an em-
ployee becomes entitled by virtue of the Labor Relations Act somewhat as a third party
beneficiary to all benefits of the collective trade agreement, even if on his own he would
yield to less favorable terms."
IN. L. R. B. v. Illinois Tool Works, 153 F. 2d 811, 814 (C. A. 7). In N. L. R. B. v.
Link Belt Co., 311 U. S. 584, 588, the Supreme Court said :
It is indeed a rare case where the finders of fact could probe the precise factors
of motivation which underlay each employee's choice. Normally, the conclusion that
their choice was restrained by the employer's interference must of necessity be based
on the existence of conditions or circumstances which the employer creates or for
which he is fairly responsible and as a result of which it may reasonably be inferred
that the employees did not have the complete and unfettered freedom of choice which
the Act contemplates.
RELIABLE NEWSPAPER DELIVERY, INC . 669
be protected from ill-motivated infringement , as well as those which, while not
bottomed upon ill intentions , necessarily , by their very nature , act as a curtail-.
ment upon those rights. The Board and the courts have so interpreted the
law.'
The Board 's consistent position can best be summarized by quoting an excerpt
from Allis-Chalmers Manufacturing Co.," where the Board found that the em-
ployer had violated Section 8 (3) by down-grading inspectors who had selected,
a union as their bargaining representative. Rejecting the employer's attempt to
"excuse its action on the ground that its motivation was not to discourage
membership in the Union," the Board said :
The purpose of the Act is to protect employees in their right to self-organi=
zation, to protect employees from conduct by employers which, experience
indicates, has a tendency to thwart self-organization. One of the most
powerful forms of intimidation is to penalize employees because of their
membership in or their activities in behalf of a union. To protect em-
ployees against this form of intimidation, Congress specifically made it
unlawful for an employer "By discrimination in regard to hire or tenure of
employment or any term or condition of employment to encourage or dis-%
courage membership in any labor organization." Radically to alter the
job content of a position and to reduce the pay concededly because employees
have selected a particular union as collective bargaining agent is to practice.
the clearest variety of discrimination banned by the Act. Such discrimina-
tion normally and naturally tends to discourage membership in a labor
organization and is therefore an unfair labor practice. Here, to be sure,
respondent was seeking to deal with what it considered, or anticipated to
be, a management problem. But it is not determinative that the respondent
may not primarily have intended to discourage membership in the Union.
The vice in the respondent ' s action rests on the fact of discrimination.
[Citing cases.] [Emphasis supplied.]
The Respondent knowingly entered into an, agreement with the Union obli-
gating itself to give preference to its union employees. It carried out the obliga-
tion by making retroactive payments to the preferred group but failed and
refused to accord the same treatment to its nonunion employees. Respondent
admits discrimination in fact but not in law . But it must assume responsibility
for the natural and logical consequences that would flow from its disparate
9 At the hearing , the Respondent contended that the rule applied by the Second Circuit
Court of Appeals in discrimination cases requires proof of both purpose and effect. In
Republic Aviation Corp. v . N. L. R. B., 142 F . 2d 193 , aff'd 324 U. S. 792, the same Court
stated :
The examiner in the case at bar had found that the company had discharged one
of the four employees in question , Stone , because of hostility to his efforts to organize
the plant . The Board reversed this finding, and for that reason the question comes
to us stark and bare ; whether the Board may declare that the enforcement of the
rule [ forbidding solicitation of any kind in the plant ] without any animus against
unions, general or particular , may be an "unfair labor practice".
This Court as well as the Supreme Court affirmed the Board's finding that it was an
unfair labor practice , despite the lack of the employer ' s union animus . Similarly here,
the Respondent 's enforcement of the contract in question , despite a lack of union animus
or intention to encourage membership in the Union , would constitute a violation of the
Act if the effect of its action would be to encourage membership in the Union. See
Sullivan Dry Dock Co ., 67 NLRB 627 ; General Motors , 59 NLRB 1143, enf'd
150 F , 2d 201 ( C. A. 3) ; Midwest Piping & Supply Co., 63 NLRB 1060; Standard Steel
Spring Co., SO NLRB 1082.
1170 NLRB 348, enf ' d 162 F. 2d 435 ( C. A. 7).
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
treatment. No clearer-cut object lesson as to the advantages of union member-
ship was necessary than the failure of the nonunion employees to receive pay-
ment for performing the very same services for which their more fortunate
fellow workers were paid. This is the very essence of the proscription of Sec-
tion 8 (a) (3)-different treatment dependent upon membership or nonmem-
bership in a labor organization. In fulfilling its contractual obligation Respond-
ent was also required to fulfill its legal obligation. By its failure to do so
Respondent's discrimination in fact became discrimination in law.
I find that the Respondent, by discriminating in regard to the terms and con-
ditions of employment of George Zehl, George O'Grady, Frank Velardo, and
Fortunato Salerno, encouraged membership in a labor organization in violation
of Section 8 (a) (3) of the Act, and thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 in
violation of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce, and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in the unfair labor practices
set forth above, I shall recommend that it cease and desist therefrom and that
it take certain affirmative action designed to effectuate the policies of the Act.
Except for the unlawful conduct flowing out of the Respondent's failure to
make retroactive payments to its nonunion employees the record does not dis-
close that a danger exists that the Respondent in the future may commit other
unfair labor practices unrelated in kind to that found. Therefore it will not be
recommended that the Board issue the usual broad cease and desist order.
Upon the basis of the above findings of fact and upon the entire record of the
case, I make the following :
CONCLUSIONS OF LAw
1. Newspaper and Mail Deliverers' Union of New York and Vicinity is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the terms and conditions of employment of
George Zehl, George O'Grady, Frank Velardo, and Fortunato Salerno, thereby en-
couraging membership in Newspaper and Mail Deliverers' Union of New York and
Vicinity, the Respondent has engaged in, and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
3. By said acts, the Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act, and
has thereby engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, I
recommend that the Respondent, Reliable Newspaper Delivery, Inc. of Elizabeth
RELIABLE NEWSPAPER DELIVERY, INC. 671
and Jersey City, New Jersey, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from encouraging membership in Newspaper and Mail
Deliverers' Union of New York and Vicinity or any other labor organization of its
employees, by discriminating in regard to any term or condition of employment of
any of its employees, and from otherwise interfering with the right of its employ-
ees to join or assist a labor organization of their own choosing or with their right
to refrain from such activity except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act :
(a) Make whole George Zehl, George O'Grady, Frank Velardo, and Fortunate
Salerno for any loss of pay that they may have suffered by reason of the
Respondent's failure to pay them retroactive back pay for the period of about
July 17, 1948, to about October 24, 1948, in the same manner as paid to its
union employees ;
(b) Post at its premises at Elizabeth and its warehouse at Jersey City, New
Jersey, copies of the notice attached to the Intermediate Report herein, marked
Appendix A. Copies of said notice, to be furnished by the Regional Director
for the Second Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to be sure that such notices are
not altered, defaced, or covered by any other material ;
(c) File with the Regional Director for the Second Region on or before
twenty (20) days from the receipt of this Intermediate Report a report in writ-
ing setting forth in detail the manner and form in which the Respondent has
complied with the foregoing recommendations.
It is further recommended that unless on or before twenty (20) days from
the receipt of this Intermediate Report, Respondent notify said Regional Di-
rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring Respondent to take
the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such excep-
tions to the Intermediate Report or to any other part of the record or proceed-
ing (including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof; and any party
may, within the same period, file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
Statements of exceptions and briefs shall designate by precise citation the por-
tions of the record relied upon and shall be legibly printed or mimeographed and
if mimeographed shall be double spaced. As further provided in said Section
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
203.46, should any party desire permission to argue orally before the -Board,
request therefor must be made in writing to the Board within ten (10) days from
the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and r9coln-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections and exceptions thereto shall be deemed waived for
all purposes.
Dated at Washington, D. C., this 31st day of October 1949.
GEORGE BOXAT,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT encourage membership in Newspaper and Mail Deliverers'
Union of New York and Vicinity by discriminating in regard to any term or
condition of employment of our employees.
WE WILL NOT otherwise interfere with the right of our employees to join
or assist a labor organization of their own choosing or with their right to
refrain from such activity except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as
a condition of employment as authorized by Section 8 (a) (3) of the Act.
WE WILL make whole George Zehi, George O'Grady, Frank Velardo and
Fortunato Salerno for any loss of pay they may have suffered by reason
of our failure to pay them retroactive back pay for the period of about
July 17, 1948, to about October 24, 1948, in the same manner as we paid our
Union employees.
RELIABLE NEWSPAPER DELIVERY, INC.,
Employer.
Dated -------------------- By ------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.