The Item Co.

National Labor Relations Board - Board Decisions

Jul 8, 1955

113 N.L.R.B. 67 (N.L.R.B. 1955)

THE ITEM COMPANY 67
ing contract no longer stabilizes industrial relations.23 Under these
circumstances, we find that a schism exists which warrants directing
an immediate election without determining whether the existing con-
tract would otherwise bar a determination of representatives. Ac-
cordingly, we find that the current contract does not bar this
proceeding.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accord with an agreement of the parties, we find that the fol-
lowing employees of the Employer constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act :
All hourly paid employees at the Employer's Peabody, Massachu-
setts, plant, including firemen, engineers, truckdrivers, and main-
tenance employees, but excluding executives, office clerical employees,
employees on the salaried payroll, guards, and supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
23 See The Magnavox Company, 111 NLRB 379.
The Item Company and 'New Orleans Newspaper Guild, Local
170, American Newspaper Guild, CIO and International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL, Local 270
International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , AFL, Local 270 and New Orleans
Newspaper Guild, Local 170, American Newspaper Guild, CIO.
Cases Nos.15-CA-719,15-CA-7P20, and 15-CB-192. July 8,1955
DECISION AND ORDER
On January 25,1955, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondents had not engaged in certain other unfair labor
practices alleged in the complaint and recommended dismissal of the
complaint with respect to such allegations. Thereafter, the Respond-
113 NLRB No. S.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.,
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 affirlned. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings,2 conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications and
additions :
The Trial Examiner found that the wholesalers or street delivery-
men were not included in the unit for which the Respondent Union
was certified in 1948; that they were never granted a free choice in
the selection of the Respondent Union as their bargaining agent; and
that they have not been bargained for or covered by the contracts be-
tween the Respondent Company and the Respondent Union from 1948
to June 1, 1954; and that, therefore, the Respondent Company vio-
lated Section 8 (a) (1), (2), and (3) by requiring these wholesalers
in April 1954 to join and maintain membership in good standing in
the Respondent Union as a condition of continued employment and
that the Respondent Union violated Section 8 (b) (1) (A) and (2)
by attempting to cause and causing the Respondent Company to com-
mit the aforesaid Section 8 (a) (3) violation against them. We agree.
The Trial Examiner found further that even if the wholesalers had
been covered by the contract in effect in April 1954, the union- secur-
ity clause contained therein could not lawfully be enforced against
them, stating that, under the rationale of the Zia case,' the wholesalers
were entitled to a separate election to determine whether they desired
to be represented by the current bargaining agent of the established
unit. It is not disputed that no such privilege was afforded the whole-
salers prior to their being required to join the Respondent Union as
a condition of continued employment. We agree with the Trial Ex-
aminer's conclusion but do not adopt his rationale involving the Zia
case. In their briefs to the Board, the Respondents point out that the
Zia case was not issued until May 27, 1954, whereas this alleged vio-
lation occurred in April of that year. The Respondents advert to the
i The Respondent Company's request for oral argument is denied because in our opinion
the record , including exceptions and briefs , adequately present the issues and the position
of the parties
0 We note and correct the following minor factual inaccuracy in the Intermediate Report,
which does not affect the validity of the Trial Examiner 's ultimate conclusions or our con-
currence therein : The Trial Examiner found at the third paragraph of section III, A, 4, a,
in the Intermediate Report that all contracts between the Respondents failed to mention
the classification of wholesalers or contain a wage scale for such classification , whereas
such classification and wage scale were included in their contract of June 1, 1954
Furthermore , in concurring with the Trial Examiner 's ultimate conclusions , we find it
unnecessary to rely upon, and do not adopt , his finding in the last paragraph of section
III, A, 2, a, of the Intermediate Report that the Respondent Union would have lost the
election in 1948 had the wholesalers been eligible and voted against the Union in that
election.
3 The Zia Company, 108 NLRB 1134.
THE ITEM COMPANY 69
fact that the Waterous 4 case doctrine was in effect in April and con-
tend that their conduct was permissible under the rationale of that
case.
In the Waterous case the Board overruled prior decisions granting
separate elections to groups of fringe employees who had not been
represented as part of the established bargaining unit to determine
whether they desired to be represented by the established bargaining
agent as part of that unit and directed an election in an appropriate
unit including the fringe employees. In the instant case, however, the
wholesalers were not granted the privilege of voting, either as a sepa-
rate group in accordance with the Zia case or in an appropriate unit
in accordance with the Waterous case, to determine whether they de-
sired to be represented by the Respondent Union as a part of the es-
tablished unit. Instead, they were required to join and maintain
membership in the Respondent Union without having designated it as
their bargaining representative or having an opportunity to express
a free choice in the matter. Such conduct not only fails to meet the
rationale of the Waterous case but is also repugnant to the basic poli-
cies of the Act. We, therefore, agree with the Trial Examiner's ulti-
mate conclusion that, even if the wholesalers had been covered by the
contract in effect in April 1954, the Respondent Company violated the
Act by requiring these employees to become and remain members of
the Respondent Union as a condition of continued employment, and
that the Respondent Union likewise violated the Act by causing or at-
tempting to cause such violation.'
ORDER
Upon the entire record in the cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, The Item Company, New Orleans, Louisiana,
its officers, agents, successors, and assigns, shall :
(a) Cease and desist from :
(1) Recognizing International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL, Local 270, the
* Waterous Company, 92 NLRB 76
* Member Murdock agrees with the ultimate conclusion that even if the wholesalers had
been covered by the contract in effect in April 1954 , the union -security clause contained
therein could not lawfully be enforced against them . He does not agree , however, that
the wholesalers were entitled to an election under either the principle of the Zia case or
that of the Waterous case, for, in his opinion , the rationale of those cases is inapplicable
in the circumstances of this case The wholesalers here involved constitute a gimp of
employees comparable in size with the certified unit represented by the Respondent l'nion
and therefore , in the judgment of Member Murdock , this group of employees is not the type
of small fringe group to which Zia or lVaterous are applicable . Nevertheless , inasmuch
as the Respondent Union had not been designated by the wholesalers as their bargaining
representative in any manner , Member Murdock would find that the extension of the
union -security provisions of the Respondent Union's contract to them was violative of
the Act.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union, as the exclusive representative of the Company's
wholesalers or street deliverymen for the purposes of collective bar-
gaining, unless and until said labor organization shall have been cer-
tified by the National Labor Relations Board as the exclusive bargain-
ing representative of said employees in an appropriate unit.
(2) Performing, enforcing, or giving effect to its agreement with
the Respondent Union, dated June 1, 1954, or to any renewal, modi-
fication, or supplement thereof, or to any superseding agreement, in-
sofar as said contracts or agreements apply to the Company's whole-
salers or street deliverymen, unless and until the Respondent Union
shall have been certified by the National Labor Relations Board as the
exclusive bargaining representative of said Company's employees in
an appropriate emit, and then only if the agreement to be given effect
conforms to the provisions of the National Labor Relations Act.
(3) Encouraging membership in, and granting assistance to, the
Respondent Union or any other labor organization of its employees,
by conditioning employment of the wholesalers or street deliverymen
upon joining and maintaining membership in good standing in the
Respondent Union, or any other labor organization, except where
such conditions shall have been lawfully established by an agreement
in conformity with Section 8 (a) (3) of the Act.
(4) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action which it is found will
effectuate the policies of the Act :
(1) Withdraw and withhold all recognition from the Respondent
Union or any successor thereto as the exclusive representative of the
Company's wholesalers or street deliverymen for the purpose of col-
lective bargaining unless and until said Union shall have been certified
by the National Labor Relations Board as such exclusive representa-
tive in an appropriate unit.
(2) Post in conspicuous places in the building of the Respondent,
The Item Company, at New Orleans, Louisiana, copies of the notices
attached to the Intermediate Report 6 and marked "Appendix A."
Copies of said notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, after having been duly signed by the Respond-
ent's representative, be posted by Respondent Company immediately
upon receipt thereof and maintained by it for sixty (60) consecutive
U This notice is hereby amended by substituting the words "A Decision and Order" for
the wo, ds "The Recommendations of a Ti cal Examiner " In the event that this Order is
enforced by a decree of a United States Coact of Appeals, there shall be substituted for
the aao,ds "Pursuant to a recision and Orden" the words "Pursuant to a Decree of the
United States Couit of Appeals. Enforcing an Oidei "
THE ITEM COMPANY 71
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be
t aken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(3) Notify the Regional Director for the Fifteenth Region in writ-
ing, w i t h in ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
II. The Respondent, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL, Local 270,
its officers. representatives, agents, successors, and assigns, shall :
(a) Cease and desist from:
(1) Causing or attempting to cause The Item Company, its officers,
agents, successors , and assigns , to discriminate against its wholesalers
or street deliverymen , or any other employees , in violation of Section
8 (a) (3) of the Act.
(2) Performing, enforcing, or giving effect to its agreement with
the Respondent Company, dated June 1, 1954, or to any renewal, modi-
fication, or supplement thereof, or to any superseding agreement, in-
sofar as said contracts or agreements apply to the Company's whole-
salers or street deliverymen, unless and until the Respondent Union
shall have been certified by the National Labor Relations Board as the
exclusive bargaining representative of said Company's employees in an
appropriate unit, and then only if the agreement to be given effect con-
forms to the provisions of the National Labor Relations Act.
(3) In any like or related manner restraining or coercing employees
of The Item Company , its successors or assigns , in the exercise of
the rights guaranteed in Section 7 of the Act, except to the extent that
such rights 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.
(b) Take the following affirmative action which it is found will
effectuate the policies of the Act:
(1) Post in conspicuous places in its business office in New Orleans,
Louisiana, copies of the notice attached to the Intermediate Report
and marked "Appendix B."' Copies of said notice , to be furnished by
the Regional Director for the Fifteenth Region, shall, after being duly
signed by an authorized representative of the Respondent Union, be
posted by it immediately upon receipt thereof and be maintained by it
for a period of sixty ( 60) consecutive days thereafter in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken to insure that said notices are
not altered , defaced, or covered by any other material.
v See footnote 6, sepia
379288-56-vol 113-6
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Additional copies of the notice attached to the Intermediate
Report and marked "Appendix B" shall be signed by a representative
of the Respondent Union and forthwith returned to the Regional
Director for the Fifteenth Region. These notices shall be posted, the
Respondent Company willing, in places where notices to the Com-
pany's employees are customarily posted.
(3) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, what steps
have been taken to comply herewith.
III. Both Respondents shall jointly and severally reimburse Her-
man Binder, John Davi, Herbert Kohlmer, Frank Mancuso, and
Morris A. Schneider for the initiation fees and dues each of them paid
to the Respondent Union.
IT Is FURTHER ORDERED that the complaint against the Respondent
Company, insofar as it alleges violations of the Act by (1) the re-
districting of the wholesalers' territories, (2) the inclusion of the
vacation clause in the June 1, 1954, agreement, (3) the discharge of
Ronald Green, (4) the discriminatory treatment of its employees con-
cerning their attendance at Board representation hearings, and (5)
unlawful interrogation, be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the complaint against the Respondent
Union, insofar as it alleges violations of the Act by reason of the in-
clusion of the vacation clause in the June 1, 1954, agreement, be, and it
hereby is dismissed.
CHAIRMAN FARMER, concurring :
I agree with the conclusion here reached that the Respondents vio-
lated the Act in April 1954, by their conduct in forcing the whole-
salers to join the Respondent Union, and in June 1954 by extending
the coverage of their union-security contract to the wholesalers.
However, I would predicate these unfair labor practice findings solely
on the grounds that (1) the contract in effect during April did not
in fact cover the wholesalers in question and therefore could not con-
stitute a defense to the compulsion brought to bear upon the whole-
salers, and (2) the contract in effect in June was itself illegal, and
therefore could not justify like compulsive action, because the contract
was made with an unlawfully assisted union. I therefore find it un-
necessary to consider in this case the validity of the other grounds
urged for supporting the unfair labor practice findings.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by New Orleans Newspaper Guild , Local 170, American News-
paper Guild , CIO, herein called the Guild, against The Item Company ,' herein called
' At the hearing in these proceedings , the Respondent Company was represented by the
law firm of Monroe & Lemann of New Orleans, Louisiana , which also filed a brief with
THE ITEM COMPANY 73
the Respondent Company or the Company, and against International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local 270,
herein called the Respondent Union or the Teamsters, the General Counsel of the
National Labor Relations Board, respectively called herein the General Counsel and
the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisi-
ana), consolidated the cases and issued complaints, dated September 15, 1954,
which, as subsequently amended, alleged that the Respondent Company had engaged
in conduct which constituted unfair labor practices within the meaning of Section 8
(a) (1), (2), (3), and (4) of the National Labor Relations Act, herein called the
Act, 61 Stat. 136, and that the Respondent Union had engaged in conduct which
constituted unfair labor practices within the meaning of Section 8 (b) (1) (A) and
(2) of the Act, all affecting commerce within the meaning of Section 2 (6) and (7)
of the Act.
The Respondents duly filed answers and amended answers, in which they admitted
certain allegations in the complaints , including those concerning the Company's opera-
tions, but denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held on October 26 to 30, 1954, inclusive, at
New Orleans, Louisiana. All parties were represented at the hearing and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce relevant evidence, to present oral argument at the close of the hearing,
and to file briefs as well as proposed findings of fact and conclusions of law. The
Respondents' motion to dismiss the complaints , made at the conclusion of the hearing
and upon which I reserved ruling, are disposed of in accordance with the findings of
fact and conclusions of law made below. Subsequent to the hearing, the General
Counsel and the Respondents filed briefs which I have fully considered.
Upon the entire record in these cases, and from my observation of the demeanor
of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The complaints allege, the answers admit, and I find that the Respondent Company
is a Louisiana corporation , maintaining its principal office and place of business at
New Orleans, Louisiana, where it is engaged in the printing, publication, sale, and
distribution of an afternoon daily newspaper, exclusive of Saturday, known as "The
Item"; that during the calendar year 1953 the Respondent received, printed, pub-
lished, sold, and distributed news material of the United Press Wire Service to which
it is a regular subscriber; and that during the calendar year 1953 the Respondent
received a gross income in excess of $1,000,000 from the operation of its business.
Upon the foregoing admitted facts, I find that the Respondent Company is engaged
in commerce within the meaning of the Act and that it will effectuate the policies of
the Act for the Board to assert jurisdiction here.2
If. THE LABOR ORGANIZATIONS INVOLVED
The complaints allege, the answers admit , and I find that New Orleans Newspaper
Guild, Local 170, American Newspaper Guild, CIO, herein called the Guild; Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, AFL, Local 270, herein called the Teamsters ; and Building Service Em-
ployees' International Union, Local 275, AFL, herein called the Building Services
Union; are labor organizations within the meaning of Section 2 (5) of the Act.
HL THE UNFAIR LABOR PRACTICES
A. The allegations concerning the wholesalers
The main issue raised by these allegations is whether the Respondent Company
and the Respondent Union violated the Act by compelling a group of Respondent
Company's employees, known as wholesalers or street deliverymen or streetmen,
hereinafter called wholesalers, to become and remain members of the Respondent
Union as a condition of employment pursuant to union-security clauses contained
the Trial Examiner subsequent to the hearing On January 13, 1955, I granted a joint
motion of Messrs. Monroe & Lcmann and Messrs Deutsch, Kerrigan & Stiles, permitting
Messrs Monroe & Lemann to withdraw as attorneys of record In these proceedings and
substituting Messrs. Deutsch, Kerrigan & Stiles as attorneys of record for Respondent,
The Item Company.
2 The Daily Press, Indorporated, 110 NLRB 573.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in contracts in effect in 1954. The Respondents contend that the contracts cover
an appropriate bargaining unit of truckdrivers, crane operators, warehousemen, and
wholesalers and that the Respondent Union was the exclusive collective-bargaining
representative for such unit at the time when the contracts were executed The
General Counsel contends that the wholesalers did not lawfully become a part of
the unit and that the union-security clauses could not lawfully be applied to them
so as to serve as a defense to the Respondents' conduct.
I will first discuss the duties of the wholesalers and truckdrivers and then con-
sider certain background events 3 as an aid to determine the appropriate coverage
and application of the contracts and union-security clauses urged as a defense to
the conduct which concededly would otherwise be violative of the Act
1. Duties of wholesalers and truckdrivers
Each wholesaler is in charge of a regularly assigned territory within the city, con-
taining a number of "spots" or corners where newspapers are sold by street vendors
and some stores or drug stores which sell newspapers The wholesaler is responsible
for the delivery of the newspapers to the "spots" or corners and to the stores within
his territory and for the sale of the newspapers by these street vendors and stores.
He exercises a certain amount of discretion in choosing the people who sell the
papers on street corners within his territory, in ascertaining whether they are doing
their work properly, and in making replacements in cases of emergency. Within his
assigned territory, he may solicit new "spots" and establish honor boxes where the
papers sell by themselves. It is his responsibility to insure that an adequate supply
of newspapers is always on hand. For that purpose he visits the spots in his terri-
tory and may pick up papers from corners that have an oversupply and distribute
them to corners which are running short. All the papers are charged directly to the
wholesaler. He in turn is responsible for the collections of sales made by the street
vendors and stores, and remits these collections to the Company after deducting the
amounts credited for unsold newspapers, which he returns. He himself suffers the
losses incurred when papers are taken from honor boxes without payments being
deposited In the case of stores, he has to pick up the returns, give the store credit
for the unsold newspapers, and make out a receipt for the monies collected. In
the evening he tallies up his returns, deducts the number from the total charged
to him for the day, and the next day remits to the Company the monies collected to-
gether with the returns. The wholesaler also makes out a sheet for the next day's
"draw," indicating the number of papers to be delivered to each corner man or store
Except in the case of an emergency or breakdown, when a company truck is used,
all deliveries are made in his own passenger car for the use of which he is given
a specified weekly car allowance .4 The wholesalers have no regular hours, which
vary from day to day. Prior to June 1, 1954, their wages were computed by adding
to the weekly base wage, a 121h percent commission on sales of papers within their
territory It was therefore to their advantage to promote the largest number of
sales within their territory. The wholesaler averaged about $100 a week including
car allowance
The truckdrivers deliver bundles of newspapers to various "spots," branch stations,
and stores throughout the city as well as to trains and buses for home delivery. Their
sole responsibility is to deliver the papers. They also deliver bulk newsprint. They
drive company trucks, have regular hours, and averaged about $40 a week.
To a certain extent, truckdrivers work in conjunction with the wholesalers in the
delivery of newspapers. The truckdrivers and wholesalers pick up the newspapers
from the same loading platform and frequently help load each other's vehicles. In
order to speed up the delivery of papers on the editions where the Company makes
a citywide coverage, the truckdrivers deliver newspapers to certain "spots" for the
z There is no merit in the Respondents' contentions that evidence of events occurring
more than 6 months before the filing of the charges in these cases (October 14, 1953), is
precluded from consideration by Section 10 (b) of the Act The Board and the courts
have held that such evidence may be admitted and considered for the purpose of clarifying
and imparting meaning to the specific conduct which happened within the 6-month period
and is alleged as an unfair labor practice See, e. g, Textile Machine Works, Inc, 96
NLRB 1333, 1350-1351, 105 NLRB 618, enfd. 214 F 2d 929 (C. A 2) ; F T C v Cement
Institute, 333 U. S 683, 705.
4 Wholesalers Mancuso and Scheuermann, who cover the heavy commercial district, are
driven around in company trucks by truckdrivers who perform no other function than
to drive.
THE ITEM COMPANY 75
-wholesalers. Both groups work entirely outside the plant and are considered to be
part of the circulation department.5
2. Background events
a. 1948: The consent election, the unit established, and the contract negotiated
Early in 1948 the Teamsters organized the truckdrivers of The Item Company 6
and on April 14 filed a petition with the Board for a representation election in a
unit of "all delivery employees on the payroll of the Company and lift equipment
operators." The petition further stated that the requested unit consisted of eight
employees, all of whom were supporting the petition. On May 3, 1948, the Team-
sters and The Item Company entered into a consent-election agreement for the
holding of an election on May 11 in a unit of "all delivery and lift equipment
employees."
Manny Moore, president and business manager of the Teamsters at all times
material herein, testified that at the time when he filed the petition he believed that
-there were only eight delivery employees in the unit, that he was aware of the
existence of the wholesalers or "streetmen" but was informed that they were super-
visers over the newsboys, and that it was his understanding that the unit was not
to include the wholesalers. Moore further testified that he, together with Mr. Saux
and Mr. Fanz, the then office manager and business manager of The Item Company,
respectively, established the eligibility list and that, in the discussions prior to the
election, it never entered my mind that they [the wholesalers] were doing our work."
In a letter addressed to the Board's Regional Director in connection with the con-
sent election, Business Manager Fanz wrote that he was enclosing "a list of truck
drivers and warehousemen 7 as they appear on our payroll week ending April 24,
1948." Fanz testified that at that time it was the position of The Item Company that
the wholesalers were independent contractors and not employees of the Company.
James S. Hay, circulation manager of The Item Company until 1950, testified
that Office Manager Saux gave him the list of eligible voters, that this list contained
only the names of 8 truckdrivers and 1 warehouseman,6 and that as long as he was
circulation manager no wholesalers were included in the unit but were regarded as
independent contractors. Hays further credibly testified that at that time there were
employed by The Item Company 8 truckdrivers, 1 warehouseman, and 7 whole-
salers.9 Hays also testified that during this period there was no discussion between
him and Fanz about the wholesalers being included in the unit because wholesalers
"did not enter into the picture at all. It was strictly truck drivers that were being
organized."
All the wholesalers employed at that time and who testified at the hearing stated
that they did not vote in the election. Office Manager Saux testified that he "feel[s]
that whatever group we were negotiating with or for, voted."
Wholesaler Binder testified that he was never told that he was eligible to vote, that
he understood the election was for the truckdrivers, that he did not vote because he
had no idea he was supposed to vote, and that he knows of no wholesaler who thought
the election applied to him. Wholesaler Schneider testified that, "I remember some
kind of election for the truck drivers. I don't know anything about concerning us."
He further testified that no one ever told him he was eligible to vote. Wholesaler
Scheuermann testified that he knew nothing about an election at that time. Whole-
c The findings in this section are based on a preponderance of the evidence as reflected
by the testimony of former Circulation Manager Hay, General Manager Orner, Whole-
salers Binder, Kholmer, and Davi, and Truckdriver Thrower See also The Item Company,
108 NLRB 1261.
0 Until the middle of 1949, The Item Company was owned by the Respondent's
predecessoi.
7 Warehousemen are sometimes designated as lift-truck operators
s The General Counsel stated as his reason for not introducing the original eligibility
list into evidence, the fact that it could not be located despite an intensive search of all
relevant files and records
B As manager of the circulation department, which consisted of the truckdrivers, whole-
salers, and branch managers, Hays was in a ieliable and informative position to know the
actual number employed in each category He named the truckdrivers, warehousemen, and
wholesalers then employed and correlated the 7 wholesalers with the 7 territories covered
at that time At the time of the hearing, Hays was employed by a competitor of the
Respondent Company, having voluntarily left the Company's employ in 1950 I-lays im-
pressed me as a trustworthy, straightforward, and candid witness. I credit his testimony
m
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q
saler Davi testified that no one ever asked him to vote in the election. Wholesaler
Pemberton testified that no one ever told him he was eligible to vote, and that it was
his understanding at the time that the wholesalers were not included in the voting
group.ia On the other hand, Willie Thrower, a truckdriver and steward for Respon-
dent Union, testified that before the election Business Manager Fanz called all the
truckdrivers and warehousemen, but not the wholesalers, into the office and talked
to them about the National Labor Relations Board election.
The election was held on May 11, 1948, and the tally of ballots shows that of
approximately 9 eligible voters, 8 cast ballots for the Teamsters and 1 was against.
The Teamsters was thereupon certified as the exclusive bargaining representative for
a unit of "all delivery and lift equipment employees." Shortly thereafter, Willie
Thrower, a truckdriver, was appointed job steward for the drivers. No steward
was appointed for the wholesalers.
The Teamsters and The Item Company then negotiated a contract which was
executed on July 20, 1948, and which contained the following clause:
This agreement covers only truck drivers of the employer delivering newspapers
for circulation department and hauling newsprint paper as now existing and
such additional drivers as may be hired to do this same type of work, using
equipment owned and operated by the employer. [Emphasis supplied.]
The contract made no mention of, and contained no wage scale for, wholesalers
or street deliverymen, as they were sometimes called.
Upon consideration of the foregoing and upon the basis of the entire record, I
conclude that the clear preponderance, if not overwhelming weight, of the evidence
warrants the findings which I herein make, that: (1) The wholesalers were not
included in the unit for which the election was held and for which the Teamsters
was certified; (2) both the Teamsters and The Item Company, parties to the consent-
election agreement, neither sought nor intended to include the wholesalers in such
unit; (3) the wholesalers were not included on the eligibility list of employees eligible
to vote, were in fact not eligible to vote and were never informed to the contrary,
and did not vote in the election; (4) if the wholesalers had been eligible to vote
and had voted against the Teamsters, the Teamsters would not have received the
majority of the votes and would have lost the election; and (5) the 1948 contract
was neither intended to, nor did it, apply to or cover the wholesalers.
b. Events from 1948 to 1954
On August 15, 1949, the Teamsters and The Item Company negotiated another
1-year contract which contained the identical union coverage clause of the 1948
contract. Also, like the 1948 contract, this contract made no mention of, nor con-
tained any wage scale for, the wholesalers or street deliverymen. I find that the
1948 contract also was never intended to, and did not, apply to or cover the
wholesalers.
During the fall of 1949 the ownership of The Item Company changed. The only
changes in personnel involved the publisher, editor, and business office. Irvin M.
Orner was brought in as general manager. Mr. Fanz retained his position under the
new management while Messrs Saux and Hays subsequently left the paper. All
other employees were retained without change, and all labor contracts then in force
continued to be honored for the balance of their respective terms. The duties of
the wholesalers continued unchanged. Mr. Orner familiarized himself with all cur-
rent labor contracts. All new contracts were thereafter negotiated by Orner on be-
half of the Respondent Company while Moore continued to represent the Teamsters,
Respondent Union. Orner took the position, adopted by the new management, that
the wholesalers were employees of the Company and not independent contractors.
Orner testified that it was his impression, obtained from Fanz and Hays, that the
then current Teamsters' contract (1949) covered the entire distribution system, in-
cluding the wholesalers. However, Hays credibly denied ever so telling Orner.
Both Hays and Fanz testified that it was the position of the former management that
10 Wholesaler Lanier, a witness for the Respondent Company, testified that he was told
he could vote, that it was common talk among llie wholesalers that they could vote, and
that he did not remember who told hint he could vote. lie admitted that he did not vote.
At the time of the hearing, Lanier operated his own delivery service and derived 50 per-
cent of his business from the Respondent Company. He also served as a substitute whole-
saler for the Respondent Company when a wholesaler was ill or on vacation Lanier was
not an impressive witness, at times testifying in a vague, defiant, and antagonistic manner.
His testimony is contrary to the weight of the evidence and is not credited.
THE ITEM COMPANY 77
the wholesalers were independent contractors and hence not under the Teamsters'
jurisdiction. I do not credit Orner's testimony that any impression he may have
entertained about the wholesalers being covered by the Teamsters' contract, was ob-
tained from Hays or Fanz.
In late 1949 or early 1950, the Guild began to organize the wholesalers and on
February 28, 1950, filed a petition with the Board for a unit covering wholesalers,
branch managers, and clerks.
Moore testified that in 1950, before the Guild filed its petition, it came to his at-
tention that the wholesalers "were infringing on our job," and that he made vigorous
presentation to the Company that the wholesalers were under his jurisdiction. Orner
testified that he conveyed Moore's position to the Guild representatives and told
them that it was also his position that the wholesalers were covered by the Team-
sters' 1949 contract.
Orner further testified that when he first learned that the wholesalers wanted to
join the Guild, he checked with "our circulation manager, Mr. Fanz, that they were
already covered by the Teamsters' Union," and with Mr. Moore. As a result, ac-
cording to his testimony, he called a meeting in his office of all the wholesalers,
informed them that they were already covered by the Teamsters' Union and the
Teamsters' contract, and that they could not go forward with the Guild's petition.
According to Orner, some of the wholesalers replied that they were not interested
in joining the Teamsters because it was a "Negro union." Orner further testified
that he spoke to the wholesalers in the same vein on several occasions and received
the same response.
With the exception of Respondent's Witness Lanier, every wholesaler 11 who
testified and who was employed since 1950 denied that Mr. Orner or any other official
of the Respondent Company informed them, at any time prior to 1954, that the
Teamsters' contract covered the wholesalers.
Orner's testimony that he learned from Mr. Fanz that the wholesalers were cov-
ered by the 1949 contract, is refuted by Fanz' testimony that at the time he negoti-
ated the 1949 contract he took the position that the wholesalers were independent
contractors and not under the Teamsters' jurisdiction. Orner did not impress me
as a candid witness. He testified in a glib and, at times, argumentative manner. I
have already indicated that Lanier did not impress me as a trustworthy witness.
Under all the circumstances, I do not credit Orner's testimony that in 1950 or on
any subsequent occasion he informed the wholesalers that they were covered by the
Teamsters' contract.
When it became apparent to the Guild that the Respondent Company was willing
to negotiate a contract only for the branch managers and the circulation clerks if a
majority in these groups selected the Guild as bargaining representative, the Guild's
claim to represent the wholesalers was withdrawn and a card check was conducted
for the branch managers and circulation clerks. As a result of the card check, the
Respondent Company recognized and dealt with the Guild for these groups.
Before the expiration of the 1949 Teamsters' contract, Moore and Orner com-
menced negotiations for a new contract which was executed on July 12, 1950.
The union coverage clause was the same as in the previous contracts, with the ad-
dition of language to include drivers "with vehicles operated for the employer's
account."12 This language appears in all succeeding contracts . Moore testified
that the addition of this language would stop any "humbug as to what we cover
and what we don't cover." Orner testified that his understanding was that the whole-
salers were covered by the 1950 and subsequent contracts. However, the con-
tract itself contained no mention of wholesalers or street deliverymen and con-
tained no wage scale for them.
Moore admitted that, at the time when the 1950 contract was negotiated, the
wholesalers had not designated the Teamsters as their bargaining representative
either by signing union designation cards or in any other manner, and that the
only Teamsters' member among the wholesalers was a truckdriver who had been
promoted to a wholesaler. Nor did Moore make any claim to Orner that the
wholesalers had designated the Teamsters as bargaining representative . Orner ad-
"Binder, Schneider, Davi, Scheuermann , Pemberton, and Mancuso.
12 The full clause read as follows.
This agreement covers truck drivers, crane operators, and warehousemen , handling,
loading and unloading newsprint paper and supplements , delivering newspapers for
the Circulation Department, and such additional drivers as may be hired to do this
type of work with equipment owned and operated by the Employer, and vehicles oper-
ated for the Employer's account, in the delivery and pick up of newspapers for street
and store sales.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted that he did not question Moore as to whether he had union representa-
tion or designation cards from the wholesalers. He testified that "I wasn't in-
terested in whether he had them or not. We had a contract with the Teamsters
and it was our interpretation that the wholesalers were included."
On August 22, 1951, Moore and Orner executed another 1-year contract with
the same coverage clause as in 1950. Again , no mention was made of whole-
salers or street deliverymen and there was no wage scale for them.
On September 30, 1952, Moore and Orner executed another contract which, as
amended and supplemented , was to continue in effect till August 1, 1954. The
recognition clause in this contract stated that the "Company during the life of
this agreement recognizes the Union as the exclusive representative of all em-
ployees whose classifications are listed in this agreement ." The only classifications
listed , together with their wage scales, appear in article 6, section ( B),13 as drivers
and head crane operators , warehousemen and assistant crane operators , and first 6
months' warehousemen. No mention was made of, nor was any wage scale set for,
wholesalers or street deliverymen. Moore, who negotiated all the contracts on behalf
of the Teamsters, admitted that neither the 1952 nor the preceding contracts con-
tained any minimum wage scales for the wholesalers or street deliverymen. The
contract also contained a union-security clause requiring each employee covered by
the agreement , as a condition of employment, to become a member of the Teamsters
within 30 days and to maintain his membership in good standing.
William R. Tracy became circulation manager of the Respondent Company in 1952.
He testified that around April or May 1953, when the wholesalers were "talking
about joining a union," he called them into his office and told them "that Local 270
[the Respondent Union ] had jurisdiction over them" and that "we had no objection
to their joining the union but that was the union that had jurisdiction over all the
papers that moved on the platform." He further testified that Wholesalers Binder
and Schneider replied that "they didn 't want to join that particular nigger union."
Binder and Schneider denied that such a meeting , occurred or that they made the
statements attributed to them. The wholesalers denied that Tracy ever informed
them in 1953 that the Teamsters had jurisdiction over them. Upon the basis of
the entire record, and particularly in view of the fact that there was no discussion
among the wholesalers about joining a union in 1953 and the fact that the wholesalers
did not become interested in joining a union again until 1954 when the Guild began
to organize again, I do not credit Tracy's testimony , set forth above, and believe
that Tracy confused this incident with a similar one which he testified occurred
in March 1954.
3. Chronology of 1954 events which form the basis for the unfair labor practices
allegations
Early in 1954 the Guild again began to organize the wholesalers and by March
obtained signed designation cards from most of them . When it came to Circulation
Manager Tracy 's attention in March that the wholesalers were organizing again, he
first called a few of them into his office individually and told them , in substance,
that he had no objection to their joining a union but that they had a contract with
the Teamsters ' Union which covered them, and that if they joined a union it would
have to be the Teamsters.
This was the first time that any of the wholesalers had been informed by a repre-
sentative of the Respondent Company that they were covered by the Teamsters'
contract. Wholesaler Binder testified that "that was a bolt to me right there."
Wholesaler Kohlmer testified that Tracy also told him that "if we wanted to do
that work it would be $40 or $50 a week, eight hours a day, and that would be okay
by them." Tracy denied making the latter statement.
Tracy further testified that a few days later he called all the wholesalers into
his office in a group, told them that the Teamsters' Union had jurisdiction over them
and read "the one paragraph in the contract that covered the delivery of the
newspapers."
Section (B) reads as follows :
Employees , such as , truck driver , crane operators , and warehousemen , handling, load-
ing and unloading newsprint paper and supplements, delivering newspapers for the
Circulation Department and such additional drivers as may be hired to do this type
of work with equipment owned and operated by the Employer, and vehicles operated
for the Employer's account in the delivery and pick-up of newspapers for street and
store sales, shall receive the following rates of pay • [There then followed the classi-
fications listed in the text, together with the respective rates.]
THE ITEM COMPANY 79
On March 17, 1954, the Guild filed a representation petition with the Board,
seeking to represent the wholesalers. Shortly thereafter, Guild Representative
Carmichael had a conversation with Teamsters' President Moore who claimed that
the Teamsters had jurisdiction over the wholesalers. When Carmichael proposed that
they let the Board decide the question, Moore replied, according to the credible and
undenied testimony of Carmichael, "I don't care what the NLRB decided, I am
going to cover these people."
On April 1 and 3, 1954, the Board held a hearing on the Guild's petition. Both
Respondents opposed the petition, contending (1) that their then current contract
covered the wholesalers; (2) that they had bargained for the wholesalers since at
least 1950, and (3) that, in any event, the unit petitioned for is not appropriate.14
Shortly after the representation hearing, the Respondent Company redistricted
the territories of the wholesalers, who were then called in by Circulation Manager
Tracy and summarily informed of the changes in their territories. In most instances,
this resulted in a reduction in the size of the territory and the number of "spots" cov-
ered by the wholesalers with a corresponding reduction in earnings
On April 12, 1954, Teamsters' President Moore sent a letter to the Respondent
Company, requesting enforcement of the union-security clause contained in the con-
tract then in effect.15 The last paragraph of the letter reads as follows:
Therefore, Mr. Orner, we are today notifying you that unless they [the whole-
salers] become members of our union in good standing, they [the wholesalers]
will not be permitted to continue working thirty days from the date of this letter.
Shortly thereafter, Circulation Manager Tracy called each wholesaler into his office,
read Moore's letter, and stated that he would have to join the Teamsters within 30
days or be replaced.
The wholesalers 16 thereupon discussed the matter and decided to join under protest
in order to avoid loss of their jobs. They each sent a letter to the Teamsters, in which
they denied that the Teamsters' contract applied to them and stated that they
were joining "under protest and only because I am forced to do it to avoid discharge."
Each wholesaler paid his initiation fee and dues, thus becoming a member in good
standing in the Teamsters.
On June 1, 1954, the Respondent Company and the Respondent Teamsters executed
a new contract which for the first time specifically provided for the classification of
wholesalers, under the designation of "street deliverymen," and contained a wage
scale for them. The method of payment for the wholesalers was changed in this
contract to provide for a specific salary and a stated car allowance. The contract
also contained a union-security clause conditioning employment of the wholesalers
upon maintaining their membership in good standing in the Teamsters.
On June 9, 1954, the Board issued its decision in the representation proceeding.17
In its decision the Board stated that the Guild was seeking to add the wholesalers to
a unit of editorial-circulation department employees presently represented by the
Guild. The Board concluded 18 that wholesalers (1) "have interests wholly unrelated
to those of the employees in the Petitioner's present bargaining unit" and (2) that they
"do not constitute a residual group of unrepresented employees, such as the Board
has on occasion found to be an appropriate unit, as the group does not include other
unrepresented employees in the plant." Under these circumstances, the Board dis-
missed the petition, specifically stating that it was therefore unnecessary to rule on the
contentions of the Respondents that the 1952 contract, as amended and supplemented,
included the wholesalers and that they had bargained for the wholesalers since at
least 1950.19
A few months before the commencement of the hearings in the present proceedings,
a job steward was appointed for the first time for the wholesalers.
4. Respondent Company's violation of Section 8 (a) (1), (2), and (3) of the Act and
Respondent Union's violation of Section 8 (b) (1) (A) and 8 (b) (2)
The General Counsel contends, among other things, that the Respondent Company
violated Section 8 (a) (1), (2), and (3) of the Act by interrogating the wholesalers
14 The Item Company , 108 NLRB 1261
15 This clause appears in the 1952 contract which, as amended and supplemented, was
effective till August 1, 1954.
19 Binder , Kohlmer , Schneider , Mancuso, and Davi
17 The Item Company 108 NLRB 1261
18 Ibsd
19Ibid ( footnote 13).
so DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in March 1954 concerning their union affiliations and informing them that if they
joined the Union they would have to join the Teamsters, by requiring the wholesalers
in April 1954 to join and maintain membership in good standing in the Teamsters
as a condition of employment, and by executing and maintaining in effect the con-
tract of June 1, 1954, insofar as the contract granted recognition to the Teamsters as
the exclusive bargaining representative of the wholesalers or street deliverymen and
required them to maintain membership in good standing in the Teamsters as a condi-
tion of employment; and that the Respondent Union violated Section 8 (b) (1) (A)
and 8 (b) (2) of the Act by attempting to cause and causing the Respondent Company
to discriminate against the wholesalers in April 1954 unless they joined and main-
tained membership in good standing in the Teamsters and by executing and maintain-
ing in effect the June 1, 1954, contract insofar as it applied to the wholesalers or street
deliverymen.
Unless there be validity to the Respondents' affirmative defenses considered at
length below, there can be no doubt of the Respondents' violation of the sections of
the Act set out above. It is undisputed that the wholesalers had never designated the
Teamsters as their bargaining representative. In the absence of a valid union-security
contract covering the wholesalers in an appropriate unit when the contract was exe-
cuted and for which unit the Teamsters had been designated as bargaining represen-
tative by a majority of the employees, as required by Sections 8 (a) (3) and 9 (a),
it is well settled that the Respondent Company's conduct in conditioning the em-
ployment of the wholesalers upon their joining and maintaining membership in the
Teamsters in April 1954 and through the contract of June 1, 1954, constitutes
assistances and support to the Teamsters in violation of Section 8 (a) (1) and (2)
of the Act as well as discrimination in hire and tenure of employment in violation of
Section 8 (a) (3).20 It is equally well settled that, under such circumstances, the
Respondent Union's conduct constitutes unfair labor practices in violation of Sec-
tion 8 (b) (1) (A) and 8 (b) (2).21
The Respondents do not question the principles enunciated above. They contend
that the wholesalers were within the unit for which the Teamsters was certified in
1948 and that, in any event, they were appropriately added to that unit at least since
1950 by agreement between the Company and the Teamsters They further contend
that they have bargained and contracted for the wholesalers since 1950 as part of an
appropriate unit for which the Teamsters was the exclusive bargaining representative.
They therefore assert that the 1952 contract, which, as amended, was still in force in
April 1954, covered the wholesalers and that the union-security clause in that con-
tract applied to the wholesalers so as to serve as a valid defense to their conduct. For
the same reason, they contend that the June 1, 1954, union-security contract properly
covered the wholesalers or street deliverymen, as they were then designated, and
hence is not unlawful. I will now consider these defenses.
a. The 1952 contract which, as amended, was in force in April 1954
The first question which is posed is whether this contract did in fact cover the
wholesalers, regardless of the validity of such coverage.
I have already found that it was never the intention of the parties to include the
wholesalers, and that in fact they were not included, in the unit for which the Team-
sters petitioned and for which it was certified in 1948. I have also found that the
1948 and 1949 contracts were neither intended to, nor in fact did they, cover the
wholesalers.
The Respondents contend that beginning with the 1950 contract the union coverage
clause contained language to include drivers "with vehicles operated for the employer's
account," and that this language was intended to cover the wholesalers. However, the
record shows, and I find, that the Respondents never bargained concerning the whole-
salers, and that all contracts neither made any mention of such a classification nor
contained any wage scale applicable to it.
The 1952 contract specifically stated that the Company recognized the Teamsters
as the exclusive bargaining representative of "all employees whose classifications are
listed in this agreement." Nowhere in this agreement is there listed any classification
of wholesalers or street deliverymen. Nor does any wage scale appear in this agree-
ment for such a classification. Indeed, as in the case of the preceding contracts, there
20 See, e . g, John B Shriver Company, 103 NLRB 23, 38-39 (and cases cited therein) ;
Chocago Freight Car cC Pa'rts Co , 83 NLRB, 1163, 1165-66; Local 404, International
Brotherhood of Teamsters, 100 NLRB 801, 810-811.
21 Ibld
THE ITEM COMPANY 81
was no bargaining concerning the wages, hours, and working conditions of the whole-
salers when this contract was executed. Nor, as previously found, were the whole-
salers ever told, or aware, prior to 1954, that this or any prior contract covered, or
applied to, them. Even Kohlmer, who prior to July 22, 1953, was a supervisor of the
wholesalers, was never informed that the contract covered the wholesalers. No
Teamsters' job steward had ever been appointed for them and no prior attempt had
ever been made by the Teamsters or the Company to enforce the union-security
clause in the 1952 contract against them. It came as a complete surprise to the whole-
salers, and a shock to some, when they were informed in 1954 that the Teamsters' con-
tract and its union-security clause applied to them.
There is no evidence that any of the provisions of the 1952 contract were specifically
applied to the wholesalers On the other hand, there is affirmative evidence to the
contrary. Thus, Kohimer credibly testified that in 1953 when he was a wholesaler and
took a day off for religious observance, he was paid for the day without any objec-
tion being raised, although it was not specified as a holiday in the contract. However,
when he sought to follow the same practice after the 1954 contract was executed, each
one of his superiors-Vallee, Tracy, and Orner-told him that he could not get paid
for that day because the union contract only specified 6 holidays and his holy day was
not one of them. Yet, the 1952 contract contained the exact same holiday provision
as the 1954 contract. Moreover, the 1954 contract demonstrates that when the Re-
spondents in fact bargained concerning the wholesalers or street deliverymen and
included them in the coverage of the contract, they did so by specifically designating
their classification in the contract and setting forth a wage scale for them.
The Respondents contend that it was not practical to include a wage scale in the
contract for the wholesalers because most of their earnings was derived on a com-
mission basis, and all of them earned far above the minimum set forth in the contract
for the other classifications. However, there was nothing impractical about includ-
ing a clause providing for the uniform 121/2 percent commission or weekly car
allowance, just as the 1954 contract did in the latter respect. Moore, who nego-
tiated all contracts for the Teamsters, admitted that the contracts prior to June 1,
1954, did not provide for any minimum wage scale for the wholesalers. Orner never-
theless testified that the contract wage scales for the drivers and head crane operators
also constituted the minimum wage scales for the wholesalers, and he persisted in
this position despite his admission that the earnings of the wholesalers might exceed
such minimum by as much as 100 percent. Orner's testimony in this regard is not
only refuted by the preponderance of the evidence and the realities of the situation
but also indicates to me an attempt to grasp at straws, in retrospect, in an effort to
shore up the asserted defense that the contract covered the wholesalers.
The Respondents further contend that Moore sought to enforce the union-security
provision of the contracts against the wholesalers beginning with the 1950 contract,
and that Moore agreed not to enforce it because they knew the wholesalers would
refuse to join the Teamsters because of the color issue and it would be difficult to
replace them. In the light of the entire record, the testimony in this regard does not
ring true. In the first place, the 1950 and 1951 contracts contained maintenance-of-
membership clauses which required that only new employees and employees who were
members of the Teamsters at the time the contracts were executed, had to maintain
membership in the Teamsters as a condition of employment. As the wholesalers
were employees who were not members of the Teamsters when those contracts were
executed, they were not required by the contract to become and remain members
of the Teamsters as a condition of employment, even assuming that such contracts
had applied to them. Moreover, according to the further testimony of Moore and
Orner, the attitude of the wholesalers with respect to the color issue was exactly
the same in 1954. It is significant to note that the only time Moore showed any
concern about the wholesalers was on the two occasions-in 1950 and 1954-when
the wholesalers became interested in joining the Guild. And even on those two
occasions, Moore's sole concern was with the Teamsters' jurisdiction and not with
the wholesalers' representation. It seems clear to me, and I find, that the Teamsters
never sought to enforce any union-security clause against the wholesalers prior to
1954 and that at that time it seized upon the enforcement of the union-security clause
in the 1952 contract to protect what Moore regarded as an infringement on the
Teamsters' jurisdiction and to stave off the Guild's effort to represent the wholesalers.
Orner's further testimony, that the wholesalers received the same vacation privileges
as was provided in the 1952 contract, is shorn of any significance in the light of
his admission on cross-examination that all employees received the same vacation
privileges, whether or not they were covered by the contract and whether or not they
were represented by a labor organization.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the preponderance of the evidence and the entire record con-
sidered as a whole, I find that , whether or not the Respondents in good faith
believed that the wholesalers were covered by all contracts executed from 1950 on,
the contract executed on September 30, 1952, which , as amended , was in force
until June 1 , 1954, did not in fact cover or apply to the wholesalers . 22 Moreover,
I find further that, even if the wholesalers were covered by the 1952 contract, the
union-security clause contained therein could not lawfully be enforced against them
for the reasons discussed below with respect to the 1954 contract . Consequently,
in either event , the union-security clause contained in the 1952 contract cannot
serve as a defense to the Respondents ' conduct in 1954.
I find, in accordance with the principles earlier set out, that , by telling the whole-
salers in March 1954 that if they joined a union they would have to join the Team-
sters ,23 and by requiring the wholesalers in April 1954 to loin and maintain member-
ship in good standing in the Teamsters as a condition of employment , the Respondent
Company violated Section 8 ( a) (1), (2), and (3) of the Act. I also find that
by requesting the Respondent Company to enforce the union -security clause of the
1952 contract against the wholesalers and threatening that they would not otherwise
be permitted to work, the Respondent Union has attempted to cause and has caused
the Respondent Company to discriminate against the wholesalers in violation of
Section 8 (a) (3), and has thereby violated Section 8 (b) (1) (A ) and 8 (b) (2)
of the Act.
b. The June 1, 1954, contract
As previously noted, this contract for the first time included the wholesalers or
street dehverymen, as they were then designated, in the same unit with the ware-
housemen and crane operators. Neither at the time of the execution of this contract,
nor at any previous time, did any of the wholesalers designate the Teamsters as
their bargaining representative. Nor did the Teamsters have or claim to have any
designation cards from the wholesalers. Also, as previously found, the whole-
salers were not included in the unit for which the Teamsters was certified in 1948
and consequently were not eligible to, and did not, vote in that election. Nor, as
further found, were the wholesalers ever bargained for or covered by any prior
Teamsters' contract. It is the General Counsel's position that, under the foregoing
circumstances, the Respondents could not lawfully execute and maintain a union-
security contract covering the wholesalers as part of an appropriate unit.
Under the proviso to Section 8 (a) (3) of the Act, it is not an unfair labor
practice for an employer to make an agreement with a labor organization to require
membership therein as a condition of employment "(i) if such labor organization is
the representative of the employees as provided in Section 9 (a), in the appropriate
collective bargaining unit covered by such agreement when made." [Emphasis sup-
plied ] In reaching a conclusion, I must interpret the unit requirement in the proviso
to Section 8 (a) (3) in accord with the statutory policy governing units set forth in
Section 9.24
The basic purpose of the Act, recently reenunciated by the Board,25 is to afford
employees the "right . to bargain collectively through representatives of their
own choosing . and . . . to refrain from . such activities [Section 7]." In
implementing this statutory pronouncement, the Board adopted the policy that where
a distinct group of employees has been excluded from a unit in which they may
appropriately be included, they should not be placed in the established bargaining
unit in which they will be a minority without first being extended the opportunity to
express their preference as to whether or not they desire to be represented by the
current bargaining agent of the established unit.26 And this is so, the Board has
22 Sucesores De 4 barca, Inc, 101 NLRB 523, 524; see also California Coi nice Steel and
Supp711 Corp , 104 NLRB 787, 788
23I find it unnecessary to resolve the conflict concerning Bohlmer's testimony that Cir.
culation litanacer Tracy also told him at this time that "if we wanted to do that work
it would be $40 or $50 a week, eight hours a day, and that would be okay by them."
In its context, such a statement could only mean that the Teamsters' contract provided
those wages and hours for employees covered by it So construed, such a statement, even
if made, did not constitute a threat of economic repiisal by the Respondent Company,
contrary to the General Counsel's contention and hence was not violative of the Act.
24 Chicago Fa eight Car it Parts Co, 83 NLRB 1163, 1164; Local 404, International
Brotherhood of Teamsters, etc . 100 NLRB 801, 810
2G The Zia Company, 108 NLRB 1134
20 Ibad ; Chicago Freight Car it Parts Co , supra; American Can Company, 108 NLRB
1209 ; American Liberty Oil Company, 109 NLRB 368
THE ITEM COMPANY 83
held, even though the group sought to be added does not itself constitute an ap-
propriate unit. As the Board recently stated in the Zia case (108 NLRB 1134),
"adherence to this principle will, in the opinion of the Board, tend to insure that the
wishes of small groups of employees no longer will be thwarted by the numerical
superiority of employee-members of an existing historical unit from which the
former have been excluded."
As previously indicated, the work of the wholesalers was not identical with that
of the other employees in the established unit represented by the Teamsters; on
the contrary, it differed considerably from that of the other employees. In fact,
on evidence similar to the kind adduced here, the Board referred to such em-
ployees as "primarily sales and promotional personnel rather than truck drivers." 27
It is obvious that the wholesalers constituted a separate, identifiable group, clearly
distinguishable from the other employees in the unit represented by the Teamsters.
Under these circumstances, and in view of the fact that the wholesalers were in
the Company's employ at the time of the 1948 election, I find, contrary to the
Respondents' contention, that the wholesalers do not constitute a mere accretion
in the established bargaining unit. Nevertheless, the record demonstrates a suffi-
cient community of interest between the wholesalers and the established bargaining
unit to warrant a finding that, if a majority of the wholesalers selected the Teamsters
as their bargaining representative, the larger unit, including the wholesalers, would
constitute an appropriate unit.28
The wholesalers, however, have never been accorded the opportunity to express
their preference as to whether they wish to be represented by the Teamsters 29
Nor has there ever been any collective bargaining concerning them such as might
indicate acquiescence by the wholesalers in the Teamsters' representation 30 On
the contrary, the wholesalers' opposition to the Teamsters and preference for the
Guild, for whatever the reason, was well known.
Applying the aforestated principles and policies to the facts in this case, I find
that the wholesalers were entitled to an opportunity, which was denied to them, to
express their preference by their own majority on whether or not they wished to
become a part of the larger group. The Respondents may not, by their own agree-
ment, deprive the wholesalers of this opportunity. Under the circumstances, the
attempt of the Respondents to make the wholesalers a minor portion of the exist-
ing unit was repugnant to the basic statutory policy. I therefore find that the con-
tract of June 1, 1954, was invalid when executed, insofar as it applied to the whole-
salers or street deliverymen, because the unit "covered by such agreement when
made" could not then be, before the wholesalers or street deliverymen had an op-
portunity to exercise their choice, the appropriate collective-bargaining unit specified
in Section 8 (a) (3) (i) of the Act 31
The agreement of June 1, 1954, is invalid for still another reason To satisfy
the proviso of Section 8 (a) (3), the union-security agreement must also be made
with a labor organization "not established, maintained, or assisted by any action
defined in Section 8 (a) of the Act as an unfair labor practice" As previously
found, the conduct of the Respondent Company, in telling the wholesalers in March
1954 that if they joined a union they would have to join the Teamsters and in con-
ditioning the employment of the wholesalers in April 1954 upon their joining and
maintaining membership in good standing in the Teamsters, constituted support and
assistance to the Teamsters in violation of Section 8 (a) (1) and (2) of the Act I
therefore find that the June 1, 1954, agreement was also invalid because at the time
of its execution the Teamsters was a labor organization assisted by the Respondent
Company's unfair labor practices.
I find that by executing and maintaining in force the invalid union-security agree-
ment of June 1, 1954, insofar as it applied to the wholesalers or street deliverymen,
Indianapolis Tuncs Publishing Co . 82 NLRB 1385, 1356
23I am faither persuaded to reach this conclusion in view of the Board's decision in the
representation proceeding that the wholesalers neither constituted a separate appropriate
unit nor may they appropriately be added to the editorial-circulation department employees
represented by the Guild The Item Company, 108 NLRB 1261 The General Counsel's
contention that undei no circumstances would it be appropriate to add the wholesalers to
the established unit, is not supported by the cases cited in his brief
-^ It is inteiesting to note, although not material to the conclusions which I reach, that
if the wholesalers had been eligible to vote in the 1948 election, they could have defeated
the Teamstei s by voting against it
30 Pepsi Cola Bottling Co , 55 NLRB 1183, 1187 ; Demuth Glass Co., 52 NLRB 451, 454.
31 Chicago Freight Car lE Parts Co., 83 NLRB 1163, 1165 ; Brown Equipment and Nana-
9actiring Co , Inc., 100 NLRB 801.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent Company created discriminatory conditions of employment encour-
aging membership in the Teamsters and rendered unlawful support and assistance to,
the Teamsters, all in violation of Section 8 (a) (1), (2), and (3) of the Act.32 I
also find that by engaging in the same conduct, the Respondent Union joined with
the Respondent Company in creating conditions which would result in discrimina-
tion and thereby attempted to cause the Company to discriminate against its em-
ployees in violations of Section 8 (a) (3) and restrained and coerced the employees
in the exercise of the rights guaranteed by Section 7 of the Act, all in violation of
Section 8 (b) (2) and 8 (b) (1) (A) .33
5. Other alleged violations
a. The redistricting of the wholesalers' territory
The General Counsel contends that the Respondent Company discriminated against
the wholesalers because of their Guild activity by unilaterally redistricting their
territory in April 1954. As previously noted, this redistribution resulted in a reduction,
in the size of the territory and the number of "spots" covered by the wholesalers
with a corresponding reduction in earnings in most cases.
The record shows that a redistricting of the wholesalers' territory was first
considered by management before the wholesalers again became interested in the
Guild and was promoted by a concern over the necessity to bring about better cover-
age for the increased circulation. On February 11, 1954, Circulation Manager
Tracy transmitted a memorandum to General Manager Orner on the subject. On
March 4, before the Guild filed its petition, Tracy submitted to Orner a second
memorandum in which he outlined his redistribution plan in detail. Shortly there-
after, Orner approved the plan and it was put into effect in April. The plan called
for the reduction in the size of the territories of the wholesalers then employed and
the hiring of 2 new wholesalers to be assigned to the 2 new territories which were
created.
The redistribution of territories resulted in no changes in working conditions and
in no reduction in the wage scale or rate of commission. While the earnings of most
wholesalers dropped because of the reduction in the size of their territory, the
earnings of at least one wholesaler increased and that of another remained the
same. The record also shows that other territory redistributions were accomplished
in past years in the normal course of the Company's business. Even assuming, with-
out deciding, that such a redistricting of territories was a bargainable issue, as the
General Counsel contends, there was no obligation on the Respondent Company to
bargain with the Teamsters concerning this subject because, as previously found, at
no time was the Teamsters the exclusive bargaining representative of the wholesalers
in an appropriate unit.
Under all the circumstances, I find that the General Counsel has failed to sustain
his burden of showing by a pieponderance of the evidence that the Respondent Com-
pany's conduct in redistricting the wholesalers' territories was discriminatorily
motivated in violation of the Act.
b. Vacation clause of the 1954 contract
The General Counsel also contends that article 5 (A) of the 1954 contract, pro-
viding for vacation benefits, is violative of the Act because it applies only to members
of the Teamsters. As I have previously found that the contract is invalid insofar
as it applies to the wholesalers or street deliverymen, the clause may not be regarded
as discriminating against the wholesalers. In the light of the union-security clause
requiring all those validly covered by the contract to become members of the
Teamsters in good standing as a condition of employment, the clause, realistically
viewed, applied to all employees for whom the Teamsters is the exclusive bargaining
representative. Moreover, the record shows, without contradiction, that all em-
32 See e. g. Federal Stores Division of Speigal, Inc, 91 NLRB 647, enfd 196 F. 2d 411
(C. A 9) ; Technical Porcelain and Chinaware Company, 99 NLRB 21, A' L R. B v Gott-
fried Baking Co., Inc, 210 F. 2d 727, 738 (C. A. 2) ; N. L. R. B. v Philadelphia Bon
Works, Inc., 211 F. 2d 937 (C A 3)
33 See a g. Brown Equipment and Manufacturing Co, Inc, 100 NLRB 801, 811, enfd.
205 F. 2d 99 (C A. 1) ; N L it. B v National Maritime Union of America, 175 F. 2d
686, 689 (C A 2), cert denied 338 U S. 954; Local 57, International Union of Operating
Engineers, et al., 93 NLRB 386, N. L. R. B v. Philadelphia Iron Works, Inc., supra.
THE ITEM COMPANY 85
ployees of the Respondent Company, whether or not they were validly covered by
the contract or were members of the Teamsters, received the same vacation benefits.
Under all the circumstances I find no merit in the General Council's contention
that this clause is violative of the Act.
B. The alleged discriminatory discharge of Ronald Green: alleged refusal of
permission to attend and testify in a representation hearing
The complaint against the Respondent Company alleges that on or about April 1,
1954, the Company refused permission to its employees to attend and testify at a
representation hearing of the Board in Cases Nos. 15-RC-1096 and 15-RC-1097
because of their membership and activities in behalf of the Guild. The complaint
further alleges that on or about April 3, 1954, the Company discharged Ronald Green
because of his membership in and activities on behalf of the Guild and because he
has given testimony under the Act.
Ronald Green was employed by the Company as a porter in the maintenance
department. His hours of employment were from 7:30 a. in. to 3:30 p. in. and on
Saturday from 8 a in. to 4 p m.
A Board representation hearing was scheduled for Thursday, April 1, 1954, on
two separate petitions of the Guild to represent the maintenance employees and the
wholesalers, respectively. These petitions were consolidated for the purpose of that
hearing.
On March 29, 1954, Ronald Green and Warren Webster, another porter, received
subpenas, issued at the request of the Guild, to attend the representation hearing at
10 a. in. on April 1. They showed these subpenas to Mr. Smaltz, the Company's
superintendent, and advised him that they had to appear at the hearing at 10 a. in.
on April 1. According to the testimony of Ronald Green and Warren Webster,
Smaltz told them that he knew what they were doing and had known all along, that if
they had come to him he would have told them they were doing the wrong thing,
that only one of them could go to the hearing, and that they should decide which one
would go. Mr. Smaltz testified that he told them that only one could go at a time.
He denied making the other statements attributed to him.
According to Webster's testimony, Mr. Smaltz did not say what he was referring to
by the other remarks attributed to him. There is nothing in the record to indicate
that Superintendent Smaltz was in any way opposed to the Guild or to unions in
general . The evidence shows that he had received instructions from General Manager
Orner to release employees for the hearing one at a time to avoid undue disruption
to the Company's operations. The record further shows that the Company cooperated
with the hearing officer and counsel for the Guild in arranging to have all necessary
employees available to testify in the representation hearing. Moreover, the testimony
of Guild Representative Carmichael tends to support Smaltz' version. Carmichael
testified that, on the first day of the representation hearing, counsel for the Company
advised him that Green was needed on the job and would come to the hearing after
Webster testified. Further, it is undisputed that Circulation Manager Tracy told
three wholesalers, who requested permission to attend the hearing, that it was the
Company's policy to permit employees to attend but one at a time. In addition,
Mr. Smaltz impressed me as a reliable witness by the forthright and earnest manner
in which he testified and by his bearing on the witness stand. On the other hand,
Green and Webster testified in a rather hesitant manner which did not carry the
same conviction. Under all the circumstances, I credit the testimony of Superin-
tendent Smaltz and find that, in substance, he told Webster and Green that only one of
them at a time could attend the hearing, and that he did not make the other state-
ments attributed to him.
It is not disputed that when Webster told Smaltz on this occasion that he would be
the one to go, Smaltz told him to take the day off for that purpose.
After finishing his workday at 3:30 p. in. on Thursday, April 1, Green attended
the representation hearing. However, as the entire day was consumed with the hear-
ing on the Guild's petition for the wholesalers, the hearing was recessed till 10 a. in.
Saturday, April 3, to take testimony on the Guild's petition for the maintenance em-
ployees. Webster and Green were advised by the Guild's representative that it would
be necessary for them to return Saturday morning.
One of Green's regular duties was to pick up the registered mail at the post office,
which would release the mail only to those persons whose signatures appeared on a
list submitted by the Company as being authorized to receive such mail. The signa-
tures of Green and Webster appeared on such a list. Another employee, Giles, whose
signature also appeared on this list, had been discharged 2 weeks earlier. Conse-
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quently, on Friday, April 2, the intervening day between the two hearing sessions,
Mr. Yawn, the Company's office manager, was making arrangements to have a new
registered list made up, with the signature of Martinez, another porter, replacing Giles
in the event that it might become necessary for Martinez to go for the registered mail
Because the list was improperly filled out that afternoon, it was necessary to prepare
a new list which was not completed and delivered to the post office until Saturday
morning.
Green testified that when the registered slip was being made up on Friday after-
noon, Martinez told him that he (Martinez) was going for the mail on Saturday,
that Martinez had never gone to the post office for mail before; that he knew the
other porters on the list would be going to the hearing; and therefore all that gave
him "the idea that it would be all right to go to the hearing" on Saturday morning.
On Friday evening Webster talked to Smaltz and received permission to attend the
hearing Saturday morning. That night Green asked Webster if he had made arrange-
ments to attend the hearing on Saturday. Webster replied that he had made arrange-
ments with Smaltz and "I told him [Green] that I guess the same applied to him also."
When Green arrived at work on Saturday morning and noticed that Webster was
not there, he called him and asked about the hearing. As a result of this conversa-
tion, Webster came to call for Green about 9 a m., at which time they both walked
out the front door of the building and went to the hearing Webster and Green testi-
fied that as they were leaving, Mr. Smaltz was standing by Mr Yawn's desk and talk-
ing to him, and that Webster waved to them as they went out the door. Webster
testified that Yawn waved back. Green testified that as Webster waved, he looked over
there but he could not say that either Yawn or Smaltz waved back. Yawn testified
that he did not remember the incident at all, while Smaltz denied seeing Green and
Webster leave the building that morning
The foregoing testimony presumably was adduced by the General Counsel to show
that Smaltz was aware of the fact that Green was leaving work to go to the hearing
and by his silence acquiesced in his leaving. I am of the opinion that the foregoing
evidence adduced by the General Counsel is insufficient to warrant a finding that
Smaltz, who at some distance away was engaged in a conversation with Yawn at the
latter's desk, saw Green leaving the building with Webster in that fleeting moment.
In view of Smaltz' subsequent conduct in looking for Green, as well as my appraisal
of Smaltz as a reliable witness, I credit his testimony that he did not see Green leave
the building with Webster. Moreover, even if Smaltz had seen Green leave the
building, it would not follow that he therefore knew that Green was leaving for the
day to attend the hearing. Green customarily worked in his street clothes and fre-
quently left the building in the normal course of his duties and on errands
One of Green's regular tasks was to go for the registered mail about 9.15 a. in.
on Saturdays. About 10 a. m on Saturday, April 3, Smaltz was informed by the
girl in the building that nobody had gone for the mail yet He then spent about
20 minutes looking for Green on all the floors, in the restrooms, and even in
the garage across the street where papers are kept in a shop. Being unable to find
him or to learn of his whereabouts, Smaltz sent Martinez for the mail, as he was
the only available porter whose signature was on the post office list.
Green and Webster remained in the hearing room all morning until the close
of the hearing, without either of them being called to testify. About 1 p. m.
Green returned to the Item building As he entered the building, he saw Smaltz
on the ground floor talking to the pressroom foreman Green testified that Smaltz
asked him who had given him permission to go to the hearing, that he replied
that he took it for granted that Smaltz knew he was going, and that at this point
he was cut off by Smaltz telling him he was fired and to get his clothes. Smaltz
testified that he asked Green where he had been, that Green replied he was at
the hearing, that Smaltz stated, "the least you could have done was to come and
get permission and told me you were going," and that Smaltz then told Green that
he was discharged and to get his clothes and leave. For the reasons previously
set forth, I credit Smaltz' version of the conversation.
The record shows that Green was not refused permission to attend the hear-
ing in response to the subpena but only that the Respondent Company attempted
to schedule the departure of employees so that its business operations would not
be too seriously interrupted. Thus, the General Counsel's own witness, John
Carmichael, who was also the Guild representative, testified that on the first day
of the representation hearing counsel for the Company informed him that "it was
necessary for Mr. Green to be on his job at the Item, and that he would like
to make an agreement or have it understood that Ronald Green would come to
the hearing after Mr. Webster had testified." The hearing was being held in a
building located a short distance from the Item building and a telephone call
THE ITEM COMPANY 87
would have summoned any employee without undue delay. The record further
shows that the Company did in fact cooperate in making available all employees
who were required to testify. As it turned out, neither Webster nor Green were
called to testify. Under all the circumstances, I find that the Respondent Com-
pany did not violate the Act by refusing to allow Green to attend the representa-
tion hearing at the same time with Webster.
Smaltz testified that Green was discharged for leaving work without permission
on Saturday morning, April 3. There is nothing in the record to suggest that Green
engaged in any Guild activity other than to sign a Guild designation card, as pre-
sumably did 30 percent of the maintenance employees 34 Nor does the record
show that Superintendent Smaltz was in any way opposed or unfavorable to the
Guild. On the other hand, Green admitted that on several prior occasions Smaltz
had threatened him with discharge because he was not satisfied with him. Green
did not deny Smaltz' testimony that only a week before the discharge Smaltz warned
Green that "that is the last chance I'm going to give you." At no time did Green
request permission of Smaltz to leave work on Saturday, April 3. When Smaltz
was informed on Saturday morning that the mail had not been brought from the
post office and he was unable to locate Green after a 20-minute search through-
out the building, Smaltz was sufficiently incensed to regard Green's leaving with-
out permission as the last straw and warranting disciplinary action. Although
Green may have in good faith believed that Smaltz understood that he left to attend
the hearing and had acquiesced in his leaving, the,Act does not, under the cir-
cumstances disclosed by the record, protect an employee from the consequences of
his erroneous belief.
Upon the basis of the entire record, I find that the allegations concerning the
discharge of Green and the refusal to permit employees to attend and testify at
a Board representation hearing have not been sustained by a preponderance of the
evidence. I shall accordingly recommend their dismissal.
C. Alleged discrimination against the Guild and favoritism of Building Service
Union in granting time oft with pay to attend representation hearing
The complaint against the Respondent Company alleges that on or about April
1 and 3, 1954, the Company discriminatorily granted permission to certain em-
ployees to attend a Board representation hearing in behalf of the Building Service
Union while refusing such permission to employees subpenaed to testify in behalf
of the Guild. The complaint further alleges that the Respondent Company dis-
criminatorily granted time off with pay to certain employees to attend the said
representation hearing on behalf of the Building Service Union while failing and
refusing to grant time off with pay to other employees subpenaed to testify at said
hearing in behalf of the Guild.
The Building Service Union was the incumbent Union representing the custodial
employees under contract with the Company at the time when the Guild filed
its petition to become their bargaining representative. In support of the foregoing
allegations, the General Counsel adduced testimony to the effect that four porters
-Young, Dolio, Fizer, and Duvernay-were permitted to attend the representa-
tion hearing on April 1 and 3, 1954, on behalf of the Building Service Union
without loss of pay, that employees Murino and Webster were permitted to attend
the hearing on behalf of the Guild but were not paid for the time spent at the
hearing, and that Ronald Green was denied permission to attend the hearing on
behalf of the Guild.
I have already found that Ronald Green was not denied permission to attend
the hearing and that the Company's conduct with respect to Green's attendance
at the hearing was not violative of the Act. The undisputed evidence shows that
on April 1, the first day of the hearing, Mr. Immel, the hearing officer presiding
over the representation hearing, asked General Manager Orner if he would telephone
his office and arrange to have the four named building service employees quickly
brought to the hearing room to testify briefly; that Mr. Orner replied that they would
produce the witnesses but did not want to have too many leave at one time; that
the hearing officer thereupon assured him that the men were needed for only a
short period, that Mr. Orner then telephoned to his office and left word for the
superintendent, who was out to lunch, to send the four specified employees by cab
so that no time would be lost; that upon returning from lunch Mr. Smaltz received
m It is the Board's established practice not to process a representation petition unless
at least 30 percent of the employees in the requested group have designated the petitioner
as their collective-bargaining representative
379288-5C,-vol 113-7
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Orner's message with the list of names from the switchboard operator ; that about
1 p. m. Mr. Smaltz rounded up the four porters listed on the slip and called and
paid for a cab to take them to the hearing; that the hearing involving the maintenance
employees was not reached that day; that on Saturday morning, April 3, Mr. Orner
was again requested by the hearing officer to get the same four porters to the hearing
room; that he again telephoned the office and told Mr. Smaltz to send them over as
close to 10: 30 as possible; that Mr. Smaltz then checked to see if their work was
in such shape that they could be released to attend the hearing; and that Ronald Green
was at no time requested by the hearing officer to attend the hearing.35 The record
thus shows that the four porters who attended the hearing on behalf of the Building
Service Union were permitted to attend at the same time at the request of the
hearing officer and upon his assurance that they would testify briefly. No such
request or assurance was given in the case of Ronald Green.
The record further establishes that it had been the Company's practice to pay
employees for time out for sickness but not to pay employees for time off for personal
matters in excess of a few hours. Of the four porters who were permitted to attend
the hearing at the request of the hearing officer, Dolio was on his own time both days
and not paid for attending, Fizer was on his own time on Thursday and not paid
for attending, and Young was about through for the day when he attended on
Thursday and merely received his normal day's pay. On Saturday, Fizer and Young
left for the hearing a few hours before the end of their normal workday without
loss of pay for that day. Duvernay left for the hearing on Thursday and Saturday
a few hours before the end of his normal workday without loss of pay for those
days. On the other hand Murino, who attended the hearing on behalf of the Guild
on Thursday, did not work the entire day and Webster, who attended the hearing
on behalf of the Guild on Thursday and Saturday, did not work either of those days.
Webster was not paid for the full days he did not work. Murino, who was a whole-
saler, received his salary, but not his commission , for the full day he did not work.
As time off for attending the hearing was regarded as a personal matter, the Com-
pany's treatment of these employees was strictly in accord with its established policy
which, the record shows, was known to employees.
There is nothing in the record to indicate that the Respondent Company 's treat-
ment of Murino and Webster was due to their attendance as witnesses on behalf of
the Guild rather than in accord with the Company's established practice. The
Respondent Company has contracts with 9 different unions, including 1 with the
Guild for a unit covering the editorial, branch manager, and circulation clerks. I
find without merit the General Counsel's contention that the Company demonstrated
anti-Guild animus by executing a contract with the Building Service Union for
the custodial employees while a question concerning the representation of these
employees was pending before the Board on the Guild's petition, or by the statement
of George Chaplin, editor of the Item, during the course of wage negotiations with
the Guild for the above unit, that he was tired of the Guild harassing him and never
had this sort of trouble with other unions. Neither the execution of the contract
with an incumbent union under the circumstances 36 nor a statement of the type which
is not unusual in the heat of hard bargaining negotiations, warrants a finding of anti-
Guild animus.
Upon the basis of the entire record, I find that the allegations concerning discrimina-
tion against the Guild and favoritism of the Building Service Union in granting per-
mission to attend the representation hearing and in paying employees for time lost in
attendance at such hearing, are not sustained by a preponderance of the evidence.
I shall accordingly recommend their dismissal.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the activities of the Respondent Company 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 obstructing com-
merce and the free flow of commerce.
a1 In the absence of any showing that Immel, who was still in the Board's employ, was
unavailable to testify, I credit the undisputed testimony of Orner and Smaltz in this
respect.
3e The Board has recently held that it is not violative of the Act for an employer to
execute a contract with an active incumbent union during the pendency of a question
concerning representation. William D. Gibson Co., Division of Associated Spring Cor-
poration, 110 NLRB 660.
THE ITEM COMPANY
V. THE REMEDY
89
Having found that the Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and that they take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent Company violated Section 8 (a) (1), (2),
and (3) of the Act by requiring five wholesalers to join and maintain membership in
good standing in the Respondent Union as a condition of employment, and by execut-
ing and maintaining in effect the union-security contract of June 1, 1954, which
covered the wholesalers or street deliverymen in an inappropriate unit. In accord-
ance with the Board's established policy, it will be recommended that the Respondent
Company withdraw and withhold recognition from the Respondent Union as the ex-
clusive collective-bargaining representative of the wholesalers or street deliverymen
and cease giving effect to the agreement with the said Union, entered into on June 1,
1954, or to any modification, extension, supplement, or renewal thereof, or to any
superseding agreement with said Union, insofar as they apply to the wholesalers or
street deliverymen, unless and until the Respondent Union shall have been certified
by the Board as the collective-bargaining representative of the wholesalers or street
deliverymen in an appropriate unit. Nothing in this recommendation, however, shall
be deemed to require the Respondent Company to vary those wages, hours of em-
ployment, rates of pay, seniority, or other substantial provisions in its relation with
the wholesalers or street deliverymen, which the Respondent Company has estab-
lished in the performance of said agreement, or to prejudice the assertion by such
employees of any right they may have thereunder.
It has also been found that the Respondent Union has violated Section 8 (b) (1)
(A) and 8 (b) (2) of the Act by attempting to cause and causing the Respondent
Company to require the wholesalers to join and maintain membership in good stand-
ing in the Respondent Union as a condition of employment, and by executing and
maintaining in effect the union-security contract of June 1, 1954, which covered the
wholesalers or street deliverymen in an inapproprate unit. Accordingly, it will be
recommended that the Respondent Union cease and desist from engaging in such
conduct and from giving effect to the agreement of June 1, 1954, or to any modifica-
tion, extension, supplement, or renewal thereof, or to any superseding agreement, in-
sofar as they apply to the wholesalers or street deliverymen, unless and until said
Union shall have been certified by the Board as the collective-bargaining represen-
tative of the wholesalers or street deliverymen in an appropriate unit.
It has also been found that as a result of the illegal conduct of the Respondents, five
wholesalers or street deliverymen were coerced into joining and paying initiation fees
and dues to the Respondent Union under protest. I deem it necessary, in order to
effectuate the policies of the Act, to recommend that the Respondent Company and
Respondent Union, jointly and severally, reimburse each of the five wholesalers or
street deliverymen for the initiation fees and dues each paid to the Respondent
Union 37
The unfair labor practices committed by the Respondents arise out of a single
situation and are, to a large extent, of a technical nature. The record shows that
the Respondent Company has had, and still has, collective-bargaining relations and
agreements with nine labor organizations. Under all the circumstances, I believe
that this record does not disclose a danger that the Respondents will commit other
unfair labor practices proscribed by the Act. Accordingly, I do not believe that a
broad cease and desist order is necessary to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. By requiring the wholesalers or street deliverymen to join and maintain mem-
bership in good standing in the Respondent Union as a condition of employment,
and by executing and maintaining in effect the invalid union-security agreement of
June 1, 1954, insofar as it applied to the wholesalers or street deliverymen, the Re-
spondent Company has engaged and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1), (2), and (3) of the Act.
2. By attempting to cause and causing the Respondent Company to require the
wholesalers or street deliverymen to join and maintain membership in good stand-
ing in the Respondent Union as a condition of employment, and by executing and
maintaining in effect the invalid union-security agreement of June 1, 1954, insofar
as it applied to the wholesalers or street deliverymen, the Respondent Union has
87 John B. Shriver Company, 103 NLRB 23, 24, 45; Local 404, International Brother-
hood of Teamsters, etc., 100 NLRB 801, 803, 812.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged and is engaging in unfair labor practices within the meaning of Section 8
(b) (1) (A) and 8 (b) (2) of the Act.
4. The Respondent Company has not engaged in unfair labor practices by reason
of the redistricting of the wholesalers' territories, the inclusion of the vacation clause
in the June 1, 1954, agreement, the discharge of Ronald Green, the treatment of
its employees concerning their attendance at Board representation hearings, and un-
lawful interrogation.
5. The Respondent Union has not engaged in unfair labor practices by reason of
the inclusion of the vacation clause in the June 1, 1954, agreement.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL withdraw and withhold all recognition from International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
Local 270, or any successor thereto, as the exclusive representative of our
wholesalers or street deliverymen for the purpose of collective bargaining, un-
less and until said labor organization shall have been certified by the National
Labor Relations Board as such exclusive representative in an appropriate unit.
WE WILL NOT perform, enforce, or give effect to our June 1, 1954, contract
with the aforesaid labor organization, or to any extension, renewal, modifica-
tion, or supplement thereof, or to any superseding agreement with said labor
organization, insofar as said contracts or agreements apply to our wholesalers
or street deliverymen, unless and until said labor organization shall have been
certified by the National Labor Relations Board as the exclusive bargaining
representative of said employees in an appropriate unit.
WE WILL NOT encourage membership in, and grant assistance to, the afore-
said or any other labor organization by conditioning employment of our whole-
salers or street deliverymen upon joining and maintaining membership in said
labor organizations, except where such conditions shall have been lawfully es-
tablished by an agreement in conformity with Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of rights guaranteed in Section 7 of the Act, ex-
cept to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as author-
ized by Section 8 (a) (3) of the Act.
WE WILL reimburse Herman Binder, John Davi, Herbert Kohlmer, Frank
Mancuso, and Morris A. Schneider for the initiation fees and dues each of them
paid to the afoiesaid labor organization.
All our employees are free to become, remain, or refrain from becoming members
of any labor organization, except to the extent that this right may be affected by
agreements in conformity with Section 8 (a) (3) of the National Labor Relations
Act, as amended.
THE ITEM COMPANY,
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.
APPENDIX B
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL 270
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 Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause The Item Company, its officers, agents,
successors , and assigns , to discriminate against its wholesalers or street delivery-
men, or any other employees, in violation of Section 8 (a) (3) of the Act.
PHILADELPHIA DAILY NEWS, INC. 91
WE WILL NOT perform, enforce , or give effect to our June 1, 1954, contract
with The Item Company , or to any extension , renewal , modification, or supple-
ment thereof , or to any superseding agreement with said Company, insofar as
said contracts or agreements apply to the wholesalers or street deliverymen,
unless and until the Union shall have been certified by the National Labor
Relations Board as the exclusive bargaining representative of said employees in
an appropriate unit.
WE WILL NOT in any like or related manner restrain or coerce employees of
The Item Company , its successors or assigns , in the exercise of the rights guaran-
teed in Section 7 of the Act, except to the extent that such rights 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.
WE WILL reimburse Herman Binder, John Davi , Herbert Kohlmer, Frank
Mancuso, and Morris A. Schneider for the initiation fees and dues each of
them paid to the Union.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA , AFL, LOCAL 270,
Labor Organization.
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.
Philadelphia Daily News, Inc . and Newspaper Guild of Greater
Philadelphia Local No. 10, affiliated with American Newspa-
per Guild, CIO, Petitioner . Case No. 4-RC-2655. July 8, 1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Herbert B. Mintz, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.'
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent the editorial department, promo-
tion department, and art department employees in a single unit or, in
the alternative, as separate departmental units. The Employer moved
to dismiss the petition on the ground that the unit sought is inappropri-
ate, contending that a broad residual unit of all unrepresented non-
mechanical employees, including editorial, art, promotion, advertising,
accounting, inside circulation, and 3 maintenance and 3 miscellaneous
1 The Daily Press, Incorporated, 110 NLRB 573.
113 NLRB No. 9.