The Kansas City Star Co.

National Labor Relations Board - Board Decisions

Dec 16, 1957

119 N.L.R.B. 972 (N.L.R.B. 1957)

972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perhaps, for, I agree entirely with the position of the General Counsel that the prag-
matic test is not conclusive. If the Respondent's conduct was such as might reason-
ably have been interpreted as inducement and encouragement, it matters not that it
reached an unfriendly or unperceptive audience. The fact that no employee of any
secondary employer refused to perform services in the course of his employment is,
however, probative and tends to persuade that the picketing was not so conducted
as to indicate to the employees who saw it that they were being induced,, or, en-
couraged to refrain from performing any service for their respective employers.
, At the end of every avenue of inquiry the employees of the secondary employers,
learned that the picket line carried no message to them to induce or encourage a.
work stoppage. The failure to picket employee entrances emphasized that this was
not an appeal to cease work as is the fact that pickets generally did not appear until
after employees had reported for work. The lack of evidence to establish or even,
to indicate that drivers for suppliers to the secondary employers failed to make de-
liveries or to pick up shipments leads me to conclude that none did and lends force
to the argument that the picket line was not an appeal for such cooperation.
I conclude that the General Counsel has not by a preponderance of the evidence
established that the picketing by the Respondent had as an object the inducement
and encouragement of employees of employers other than Roberts to engage in a
strike or otherwise to cease performing services for their respective employers.
In consequence, I recommend that the complaint be dismissed.
The Kansas City Star Company and Thomas L. Elliott, Jr., Bar-
ney Green, Robert Howard, De Los G. Klem, Lawrence Man-
ker, Paul L. Rupard, Jr., Kenneth Slaughter, Edwin Stevens,
Rogers Struzick, Bernard Valdapina, Jr.
International Typographical Union, Mailers Local Union No. 7,
AFL-CIO and Thomas L. Elliott, Jr., Barney Green, Robert
Howard, De Los G. Klein, Lawrence Manker, Paul L. Rupard,
Kenneth Slaughter, Edwin Stevens, Rogers Struzick, Bernard
Valdapina, Jr. Cases Nos. 17-CA-101P3 through 17-CA1021 and
17-CB-17 through 17-CB-136. December 16, 1957
DECISION AND ORDER
On, December 27, 1956, Trial Examiner Arthur Leff issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and diasist..ther,e-
from and take certain affirmative action, as set forth in the copy of
-the Intermediate 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 that those
allegations be dismissed. Thereafter, the Respondent Union and the
General Counsel filed exceptions to the Intermediate Report, and
supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
119 NLRB No. 132.
THE KANSAS CITY STAR COMPANY 973
Intermediate Report, the exceptions and briefs, and the entire record
in the.case,l and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with such modifications as are
reflected below.
1. The Trial Examiner found, and we agree, that, by maintaining
and enforcing, in conformity with a mutual understanding between
them, an employment practice requiring membership in the Union
as a condition of employment of journeymen mailers employed on
Mondays through Fridays, the Respondents engaged in unfair labor
practices, the Company within the meaning of Section 8 (a) (1)
and (3), and the Union within the meaning of Section 8 (b) (1)
(A) and 8 (b) (2).
2. In the absence of any exception thereto, we adopt the Trial
Examiner's recommendation of dismissal of the allegation of the
complaint with respect to union approval in the selection and employ-
ment of apprentice mailers.
3. The Trial Examiner found, and we agree, that there is no sub-
stantial evidence to support a finding that apprentices were required
by the Respondents, as a condition of employment, to become union
members at the end of their first year of apprenticeship, and accord-
ingly that the allegations of the complaint to that effect should be
dismissed.
4. We disagree with the Trial Examiner's finding that the refusal
of the Respondents to permit flyboys to become apprentices was law-
ful. As found above, and as found by the Trial Examiner himself,
there was in effect an agreed-upon discriminatory practice that only
union journeymen would be hired. The "asterisked" clause of the
Respondents' contract further provided that the employment of the
nonunion flyboys "... shall be discontinued as such regular part-
time workers leave the Publisher's employment," and that "As such
regular part-time work is discontinued it shall become that of full-
time journeymen and apprentices as defined in this contract." More-
over, since 1953 the Union has taken the position that when flyboys
are selected for apprentice positions the asterisked clause does not
permit the Employer to replace them with other nonunion employees,
such as stuffers. The Employer has taken a contrary position, but
there has been a tacit understanding between the Respondents that
the flyboys would not be considered for apprentice positions as long
as the still continuing impasse on the meaning and the application
,of the asterisked clause remained unbroken. As a result, none of
the flyboys have been accepted as apprentices since January 1954.
r Then Respondent Union's request for oral argument before the Board is hereby denied
as, in our opinion, the record, exceptions, and briefs adequately present the issues and
positions of the parties..
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the Union's interpretation of the asterisked clause, it is
apparent that the Union intended that clause as an extension of the
agreed-upon general practice that only union journeymen would be
hired, i. e., that replacements for flyboys must also be union journey-
men. While the Union's position on the asterisked clause has had the
direct effect of causing the Employer to discriminate against non-
union employees as replacements for the flyboys, it has also had the
indirect effect of causing the Employer to discriminate against the
nonunion flyboys as applicants for apprentice positions, all in further-
ance of the Union's desire, and the Employer's acquiescence therein,
that only union journeymen might be employed. And such discrimi-
nation against the flyboys had the necessary effect of encouraging
membership in the Union within the meaning of Section 8 (a) (3),
for it prevented any nonunion employees from replacing flyboys who
might otherwise have become apprentices. Accordingly, we find that
the Respondent Employer and the Respondent Union, by their refusal
to permit flyboys to become apprentices pursuant to a tacit understand-
ing to that effect, violated Section 8 (a) (1) and (3), and Section
8 (b) (1) (A), and 8 (b) (2), respectively.
5. The Trial Examiner found, and we agree, that there was no
unlawful discrimination against the flyboys in the assignment of work
tasks, and therefore that the allegations of the complaint in this respect
should be dismissed.
6. The Trial Examiner found, and we agree, that there was no
unlawful discrimination based on disparity in the wages and other
terms of employment of flyboys, and therefore that the allegations of
the complaint in this respect should be dismissed.
THE REMEDY
It having been found that the Respondents have engaged in certain
additional unfair labor practices, we shall also order the Respondents
to cease and desist therefrom, and from any like or related conduct,
and take certain affirmative action in connection therewith to effectuate
the policies of the Act.
ADDITIONAL CONCLUSIONS OF LAW
1. By their refusal to permit flyboys to become apprentices pursuant
to a tacit understanding to that effect, the Respondent Company
engaged in unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act, and the Respondent Union engaged in
unfair labor practices within the meaning of Section 8 (b) (1) (A)
and 8 .(b) (2) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section 2 (6) and (7) of the Act.
THE KANSAS CITY STAR COMPANY 975
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Kansas City Star Company, its officers, agents, successors,,
and assigns, shall :
(a) Cease and desist from:
(1) Giving effect to, maintaining or enforcing any understanding,,
arrangement, or agreement with the Union, or otherwise maintaining-
or enforcing any employment practice, requiring membership in the
Union as a condition of employment of journeymen mailers, except,
where,. and to the extent that, such condition of employment may be.
lawfully established by an agreement in conformity with Section
8 (a) (3) of the Act.
(2) Giving effect to, maintaining or enforcing any tacit under--
standing, arrangement, or agreement with the Union, or otherwise
maintaining or enforcing any employment practice, denying to flyboys,
the opportunity to become apprentices.
(3) In any like or related manner, interfering with, restraining, or
coercing its employees, or applicants for employment, in the exercise
of rights guaranteed by 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 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) Post in conspicuous places at its place of business at Kansas,
City, Missouri, copies of the notice hereto attached,marked "Appendix-
A." 2 Copies of said notice, to be furnished by the Regional Director-
for the Seventeenth Region, shall, after being duly signed by an au-
thorized representative of the Company, be posted by the Company-
immediately upon receipt thereof and maintained by it for sixty (60)
consecutive days thereafter in conspicuous places, including all places=
where notices to its mailing room employees are customarily posted.
Reasonable steps shall be taken by the Company to insure that said,-
notices are not, altered, defaced, or covered' by any other material: , .
(2) Notify the Regional Director for the Seventeenth. Region in
writing, within ten (10) days from the date of this-Order, what steps-,
it has taken to comply herewith.
II. The Respondent, International Typographical Union, Mailers
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the,
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
`976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 7, AFL-CIO, its officers, representatives, agents,
successors, and assigns, shall :
(a) Cease and desist from :
(1) Giving effect to, maintaining or enforcing, or causing or
attempting to cause the Company to give effect to, maintain or enforce,
any agreement requiring membership in the Union as a condition of
employment of journeymen mailers by the Company, or, in any other
manner, causing or attempting to cause the Company to maintain or
enforce any employment practice requiring such membership as a
condition of employment except where, and to the extent that, such
condition of employment may be lawfully established by an agree-
ment in conformity with Section 8 (a) (3) of the Act.
(2) Giving effect to, maintaining or enforcing, or causing or
attempting to cause the Company to give effect to, maintain or enforce,
any tacit understanding, arrangement or agreement, or any employ-
ment practice, denying to flyboys the opportunity to become appren-
tices.
(3) In any like or related manner, restraining or coercing
employees of, or applicants for employment by, the 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 organiza-
tion as a condition 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) Post in conspicuous places in its business office in Kansas City,
Missouri, copies of the notice hereto attached marked "Appendix B." 3
Copies of said notice, to be furnished by the Regional Director for
the Seventeenth Region, shall, after being duly signed by an author-
ized representative of the Respondent Union, be posted by it immedi-
ately 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: Reason-
able steps shall be taken to insure that said notices are not' altered;
defaced, or covered by any'other material.
(2) Additional copies of the notice hereto attached as Appendix B
shall be signed by a representative of the Respondent Union and
forthwith returned to the Regional Director for the Seventeenth
Region. These notices shall be posted, the Company willing, in places
where notices to the Company's mailing room employees are cus-
tomarily posted.
See footnote 2.
THE KANSAS CITY STAR COMPANY 977
(3) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent Union has taken to comply herewith.
IT IS FURTHER ORDERED that all allegations of the complaint except
the ones herein specifically found supported, be dismissed.
MEMBER RODGERS , concurring :
Member Rodgers concurs in the result reached by the majority
herein.
MEMBERS MURDOCK and JENKINS, dissenting in part :
We dissent from the finding of the majority, contrary to the Trial
Examiner, that the refusal of the Respondents to permit flyboys to
become apprentices was unlawful. We do so for the reasons so fully
and ably explicated by the Trial Examiner for his recommended
dismissal of this allegation of the complaint.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT give effect to, maintain or enforce any understand-
ing, arrangement, or agreement with International Typographical
Union, Mailers Local Union No. 7, AFL-CIO, or otherwise main-
tain or enforce any employment practice, requiring membership
in said union as a condition of employment of journeyman mail-
ers, except where, and to the extent that, such condition of em-
ployment may be lawfully established by an agreement in con-
formity with Section 8 (a) (3) of the Act.
WE WILL NOT give effect to, maintain or enforce any tacit un-
derstanding, arrangement, or agreement with International Typo-
graphical Union, Mailers Local Union No. 7, AFL-CIO, or other-
wise maintain or enforce any employment practice, denying to
flyboys the opportunity to become apprentices.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees, or applicants for employment,
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 agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized by Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
476321--58-vol. 119-63 °
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formity with Section 8 (a) (3) of the National Labor Relations Act,
as amended.
THE KANSAS CITY STAR 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 TYPOGRAPHICAL UNION,
MAILERS UNION No. 7, AFL-CIO, AND TO EMPLOYEES OF KANSAS
CITY STAR COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WTE WILL NOT give effect to, maintain or enforce, or cause or
attempt to cause The Kansas City Star Company to give effect
to, maintain or enforce, any agreement requiring membership in
our labor organization as a condition of employment of journey-
man mailers by the Company, or in any other manner cause or
attempt to cause the Company to maintain or enforce any employ-
ment practice requiring such membership as a condition of em-
ployment, except where, and to the extent that, such condition
of employment may be lawfully established by an agreement in
conformity with Section 8 (a) (3) of the Act.
WE WILL NOT give effect to, maintain or enforce, or cause or
attempt to cause The Kansas City Star Company to give effect
to, maintain or enforce, any tacit understanding, arrangement or
agreement, or any employment practice, denying to flyboys the
opportunity to become apprentices.
WE WILL NOT, in any like or related manner, restrain or coerce
the Company's employees or applicants for employment 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.
INTERNATIONAL TYPOGRAPHICAL UNION,
MAILERS LOCAL UNION No. 7, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not beoaltered , defaced, or covered by any other material.
THE KANSAS CITY STAR COMPANY
INTERMEDIATE REPORT
979
STATEMENT OF THE CASE
Charges having been filed on July 20, 1955, by the individuals above named
against the Company and the Union above named , the General Counsel, on
August 1, 1956, issued a complaint in the above-captioned duly consolidated cases
against the forementioned Respondents , alleging that by certain conduct, more
particularly to be described below, the Respondents engaged in unfair labor
practices affecting commerce , in the case of the Respondent Company within the
meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and ( 7) of the National
Labor Relations Act, 61 Stat . 136, herein called the Act , and in the case of
the Respondent Union within the meaning of Section 8 (b) (1) (A ) and (2) and
Section 2 ( 6) and ( 7) of the Act . Each of the Respondents filed an answer
to the complaint denying the commission of unfair labor practices . A hearing
was held at Kansas City , Missouri , between September 11 and 14, 1956 , before
Arthur Leff , the duly designated Trial Examiner . The General Counsel and the
Company were represented at the hearing by counsel , and the Union by its
president . All parties were afforded full opportunity to examine and cross -examine
witnesses , to introduce evidence bearing on the issues , to argue orally upon the
record, and to file briefs and proposed findings of fact and conclusions of law.
At the conclusion of the hearing , decision was reserved on motions by the
Respondents to dismiss the complaint for insufficiency of proof. The motions
are now disposed of in accordance with the findings of fact and conclusions
of law made below. On or about October 29, 1956, briefs were filed by the
General Counsel and each of the Respondents .' On November 1, 1956, the
General Counsel filed a motion to correct the transcript in certain respects. That
motion is granted.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESSBUSINE S OF THE COMPANY
The Kansas City Star Company, a Missouri corporation , is engaged in the publica-
tion of newspapers , as well as in the operation of radio and television stations,
in Kansas City, Missouri . The newspapers , which carry advertisements of numerous
nationally sold products , have an average daily net paid circulation in excess of
340,000. The Company purchases newsprint in carload quantities from points
outside the State of Missouri of a value in excess of $ 500,000 annually. The
Respondents admit that the Company is engaged in commerce within the meaning
of the Act.
It. THE LABOR ORGANIZATION INVOLVED
International Typographical Union, Mailers Local Union No. 7, AFL, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. How the case arises; the issues
This case arises out of charges filed on July 20, 1955 , against each of the
Respondents by a group of individuals employed as flyboys in the Company's
mailing room . The charges assert in substance that since on or about July 19,
1955, the Company , as a result of union causation , has refused to grant the
Charging Parties the same terms and conditions of employment it grants union
members who are employed in similar types of work , and this because the
Charging Parties are not members of the Union . The complaint , issued on
August 1, 1956, while confining its scope to alleged discriminatory practices in
the operation of the Company 's mailing room , enlarges upon the specific averments,
of the charges . It alleges that since January 19 , 1955-a date 6 months before
I Though the Respondent Union was represented at the hearing only by a lay repre-
sentative , its brief was filed by counsel.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the filing of the charges-the Company has violated Section 8 (a) (1) and (3),
and the Union Section 8 (b) (1) (A) and (2) of the Act, in that:
(a) Both Respondents "have enforced an employment practice requiring (1)
membership in the Union as a condition of employment of journeyman mailers;
(2) the Union's approval in the selection and employment of apprentice mailers;
(3) apprentice membership in the Union after satisfactory completion of the first
year of apprenticeship."
(b) Both Respondents have refused to select flyboys, because of their nonmem-
bership in the Union, to receive apprenticeship training for journeyman mailer
status.
(c) As a result of the Union's objection to the assignment of flyboys to
journeyman mailers' work tasks as long as journeyman mailers and/or apprentices
are available to perform such work tasks, and because of the flyboys' non-
membership in the Union, the Company has excluded the flyboys from performing
various work tasks which it has awarded instead to journeyman mailers and
apprentices.
(d) The Company, because of the flyboys' nonmembership in the Union, has
applied less favorable employment terms and conditions to flyboys than to journey-
men and apprentice mailers with regard to rates of pay for identical work
tasks, overtime rates, the guaranteed workday, vacation and holiday benefits,
and relief periods.2
B. Background
Appraisal of the issues of this case requires a preliminary survey of the
operations of the mailing room, the classes of employees to be found in it,
the work they do, the organizational and bargaining history affecting such em-
ployees, the scope of the existing bargaining unit covered by the Company's
contract with the Union, the assignment of work jurisdiction historically and
under the contract, and the positions taken by the Company and the Union, as
crystallized prior to the Section 10 (b) date, with regard to the admission of
flyboys into the unit bargained for by the Union. These matters generally will
be dealt with in this subdivision of the report. Details not covered by this
section but pertinent to the resolution of specific issues of this case will be
added later in the sections of this report treating separately with each of the
specific issues of this case.
1. The work in the mailing room and of the employees in it
The Company publishes a large metropolitan daily newspaper, with morning
editions called the "Times" and afternoon editions called the "Star," as well
as a large and bulky Sunday edition. To arrange for the circulation of the news-
papers after they come off the presses, the Company requires the services of
a substantial number of employees who work in its mailing room. The functions
of the mailing room employees, broadly speaking, are to take the papers as
they come off the presses, bundle and address them, and route them to their
destination in time to meet the Company's circulation schedules. The work tasks
in the mailing room are many and varied. They range from relatively simple
manual and clerical operations, requiring little skill and training, to complex tasks
requiring a high degree of skill. It is not disputed that in the case of some
of the individual work tasks, such as the operation and repair of certain of
the machines and equipment, several months of training are required on each in
order to achieve reasonable efficiency. For a mailing room employee to become
proficient in all phases of mailing room work, including the operation and repair
of all machines and equipment, it may well take years of training and on-the-job
experience.
The volume of work in the mailing room is not constant. The Company's
circulation schedules necessitate a short intense work period for each of the two
issues when papers are readied for distribution to carriers for home delivery. In
addition, the work demands in the mailing room fluctuate greatly on a daily basis
depending on the size of the newspaper. This is particularly illustrated by the
need on Saturdays of some 250 additional men to stuff and otherwise ready for
circulation the Sunday edition. Because of the varying work requirements, the
Company many years ago established the practice of employing several well-defined
2 The conduct described in this paragraph, unlike in the others, is alleged only as a
violation of Section 8 (a) (1) and (3) by the Company, and not also as a violation of
Section 8 (b) (1) (A) and (2) by the Union.
THE KANSAS CITY STAR COMPANY 981
groups or classes of employees , including regular full -time employees , regular extras
or part-time employees, and temporary part-time employees . At present , the dif-
ferent classes of mailing room employees-excluding a small group of miscellaneous
employees such as janitors and cleanup men who do not figure in this proceeding-
are as follows:
(a) Journeyman situation holders : This group makes up the basic complement
of employees required to staff the mailing room from day to day. The situation
holders have a regular tenure of employment, and are expected to arrange to be
present each day, or, if they cannot be , to supply substitutes to fill their situations.
Members of this group are by contract guaranteed a 71/2-hour workday. The group
contains within it all skills necessary to man all operations of the mailing room, the
highly skilled as well as the relatively simple. Their particular work assignments
are not usually rigidly fixed , and they are subject to assignment to almost any of
the numerous mailing room tasks as work needs dictate. All in this group are
paid at a uniform rate regardless of the type or degree of difficulty of the particular
work operations to which they happen to be assigned . With regard to the journey-
man classification , recent contracts between the Company and the Union have ex-
pressed the parties' desire and intent "to assure as far as possible . . . a high degree
of skill in [that] classification and a correspondingly high degree of quality and
quantity of production ." For that avowed reason, the contracts have defined
journeymen as "(1) employees who have completed approved apprenticeship train-
ing as provided for in this contract; 3 (2) persons who have passed a qualifying
examination under Procedures heretofore recognized by the Union and the Pub-
lisher ; 4 or (3) applicants . . . who upon reference by the Publisher to a joint
Examining Board, secure a certificate of competency...:. 5 Because the journey-
man group is supposed to be flexible as to work assignments, in theory each journey-
man should be competent to handle all phases of mailing room work. Actually,
that is not so. The record shows that although most journeyman mailers at the
Company perform varied duties , there are few, if any , who can perform all mailing
room operations ; that only a handful are competent to perform some of the more
difficult operations , such as the repair of certain machinery ; that there are some
journeymen who, because they are not mechanically inclined, are never assigned
to work on machines ; that there are indeed some who are not even qualified to
carry the main burden of mailing room operations. Undoubtedly, this is due to
the fact that few of the Company's present journeymen have gone through a full
6 years' apprenticeship training period. There have been occasions in the past-
though not the recent past-when the extension of the Union 's recognized work
jurisdiction to embrace additional groups of employees has resulted in some em-
ployees being accorded journeyman status without the formalities of preliminary
apprenticeship training in all aspects of mailing room work . Moreover, the ap-
prenticeship standards requiring 6 years of training have often been relaxed by
joint agreement, particularly during periods when labor has been in short supply,
in order to meet manpower needs .6 The record shows that at least during the past
4 The contracts since 1953 have set out a detailed schedule of apprenticeship training
in all phases of mailing room work over a training period of 6 years.
! Neither the contract nor the record explicates precisely what such procedures are.
There is evidence, however, suggesting that this may have reference to the qualifying
requirements for journeyman membership in the ITU-for example, the testimony of
Mailing Room Superintendent Cantrell, that one who held an ITU journeyman's card
would be assumed to be a journeyman. The ITU laws prescribe, inter alia, 6 years'
apprenticeship training to qualify for journeyman status. Provision is made, however,
for shortening this period through upgrading upon the joint request of a local union and
employer involved, and with the consent of the ITU. At one time, extending at least
through 1949, the ITU laws placed no restriction on upgrading, making it theoretically
possible upon joint consent of employer and union to advance an apprentice almost immedi-
ately to journeyman status. Sometime in the 1950's-this record does not show just
when-the laws were revised to limit upgrading on joint consent to not more than
12 months in a training period. Later , in 1956, the laws were again amended to extend
the maximum shortening of the apprenticeship period through upgrading to 24 months.
6 The contract provides that the Company and the Union shall each have two repre-
sentatives on the Joint Examining Board. Provision is further made for a fifth dis-
interested member as a tie breaker, and for ultimate arbitration, if necessary, if the
Examining Board is unable to reach a decision.
S At times this has been done, in part, by granting apprentices some credit for ex-
perience gained in other jobs-including flyboy or stuffer jobs-on which the apprentices
may have worked before entering their apprenticeship period. Both the Company and
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6 years, the apprentices who have been advanced to journeymen status served ab-
breviated apprenticeship training periods, in some cases greatly abbreviated ones.
But it also shows that with one exception-that of Charles Bandy, whose special
situation will be adverted to below-no employee during that period has been
upgraded to journeyman status without serving at least some period of preliminary
apprenticeship training. All journeymen now employed by the Company as regular
situation holders are members of the Union.
(b) Substitute journeymen: This group constitutes an extra pool of employees
who are qualified as journeymen but who do not hold regular situations in the mail-
ing room. Regular situation holders, when they are absent from work, obtain sub-
stitutes from this pool. Moreover, the substitute journeymen are available to swell
the regular complement of journeymen as the needs of the paper require, and when
new regular situations are opened, they are filled from this group according to their
priority standing based on the dates on which such employees were listed with the
Company as substitutes.? Substitutes, when working, are paid the same wages as
regular situation holders and have the same guaranteed workday. Like the regular
situation holders they are subject to assignment to various tasks, and are therefore
expected to possess journeyman skills.
(c) Apprentices: This group is composed of the employees selected to receive
training for journeyman positions. The selection of those who are to become ap-
prentices is made jointly by agreement of management and the Union.8 Except for
age requirements, there is no restriction in the contract on who may be selected for
apprentice positions. The contract limits the number of apprentices who may be
employed at any given time by a fixed ratio to the number of regular situation hold-
ers. At present the maximum number of apprentices the Company may employ is
nine. If the union and management representatives agree at the end of the first
year of apprenticeship that an apprentice does not show promise of becoming a
satisfactory journeyman, the apprentice may be replaced. Apprentices are not con-
fined to any particular job tasks, but, beginning with the most simple, are supposed
to progress during their period of training to the point where they are experienced
in all mailing room operations. They are compensated at a graduated scale, rang-
ing from 50 percent of the journeyman's rate in their first year of apprenticeship to
90 percent in their sixth year.9 They otherwise enjoy the same conditions of em-
ployment as do regular journeymen, including a 71/2 hour guaranteed day.
(d) Stufjers: This group of from 150 to 200 individuals is composed of temporary
part-time workers who work only on weekends when it is necessary to insert sections of
the Sunday paper. Their work is relatively unskilled. They are not members of
the Union.
(e) Flyboys: This is the group in which the Charging Parties are found, and the
group which, according to the complaint, was specifically injured by the Respond-
ent's alleged discriminatory conduct. The flyboy group has constituted a distinct
.class of employees in the Company's mailing room for many years. The flyboys
are regular part-time employees who work each day of the regular week during the
afternoon and early morning periods when the papers come off the presses and when
work in the mailing room reaches its peaks. Those on the afternoon issue work from
about 1 p. m. to about 4 p. m., or earlier, depending on the length of the run, those
on the morning issue work from about midnight until about 4 a. m. They are
guaranteed 4 or 5 hours' pay, depending on their shift, although the maximum
the Union agree that a full 6 years of apprenticeship training is desirable, if possible.
But as Charles Ettinger, an official of the Union, conceded, the policy of the Union and
the Company with regard to apprenticeship standards is a flexible one. Ettinger admitted
that what the Union was mainly interested in was the protection of the job security of
the journeymen : that its approach was a pragmatic one ; that when there was a surplus
of journeymen it would insist upon the enforcement of rigid apprenticeship standards ;
but that when there was a shortage of journeymen, it would cooperate with the Company
by applying looser upgrading standards.
7 The contract provides that where a substitute is hired as an extra for 4 consecutive
weeks, it is to be deemed prima facie evidence that there are not sufficient regular situa-
tions to meet requirements, and a new one must then be created and filled by a substitute.
8 The contract provides that the selection of apprentices and the supervision of the
apprenticeship program shall be under the control of a joint apprentice committee com-
posed of an equal number of representatives of the Union and the Company. Provision is
made in the contract for arbitration to resolve any question on which the committee is
unable to agree.
9 Their hourly rate, at least at the beginning of their apprenticeship, is less than the
hourly rate of flyboys.
THE KANSAS CITY STAR COMPANY 983
hours paid for are seldom actually worked. The group has traditionally been com-
posed principally of young men, about 18 to 20 years of age, many of whom have
taken these part-time jobs to help finance their way through school. Unlike the work
performed by journeymen and apprentices, the work of the flyboys is confined to a
single task. The flyboy work consists solely of taking the papers off the elevators
or escalators as the papers come up from the pressroom and putting the papers on
a conveyor that leads to the tying machines. Although the job requires considerable
physical exertion, it calls for little special skill or training. At one time, there were
about 30 employees in the flyboy category. As a result of the agreement of 1953-
to which more particular reference will be made below-that number has since been
reduced to about 16. At one time the "flying" of escalators was handled only by the
members of the flying group. Now as a result of the attrition that has occurred in
that group, such work is also done, at least on occasions, by journeymen and ap-
prentices. However, there are no journeymen or apprentices who fly the escalators
exclusively; it is simply one of the work tasks they may be called upon to perform
in addition to other work assignments. These in the present regular part-time fly-
boy group, like those in the temporary part-time stuffier group, and unlike those in the
regular journeymen and apprentice groups, are not members of the Union.
2. History of organization leading to the evolution of the present contract bargaining
unit; the scope of that unit and the assignment of work jurisdiction thereunder
Historically, the ITU has claimed jurisdiction over mailing room work gen-
erally. At the Company's plant, the Union has never succeeded in winning recogni-
tion as the representative of all mailing room employees. Organization to date has
taken place in segments. The Union was first recognized many years ago as the rep-
resentative of certain of the mailing room employees on the country circulation side.
Later, its recognized representation was enlarged to include an additional group of
employees on the city circulation side. Still later, it was recognized as having
bargaining rights over dock crews. To this date, however, it has never been recog-
nized as the bargaining agent of three groups of employees in the mail room: the
regular part-time employees called flyboys, the temporary part-time employees called
the stuffers, and a small group of employees who perform cleanup and janitor work.
The three groups just mentioned remain unrepresented, and the wage rates and
working conditions of members of these groups have always been determined by
individual bargaining.
Although the Union has never won recognition as the representative of flyboys
as a separately identifiable group, it has continued to assert that the flyboy work
should be deemed part of the regular work of the journeymen and apprentices con-
tained in the unit it represents. For some time the Union's efforts to have fly-
boy work included in the Union's assigned work jurisdiction was successfully resisted
by the Company. The Company considered it to be to its economic advantage to
have at hand a regular part-time crew with limited duties to help carry it through
the few peak hours of production at each shift at a minimum cost to it.
When the conflict came up for consideration in the 1948 contract negotiations,
the Company took the position that the problem was one that would soon become
academic. It explained that it was then planning further mechanization of work
tasks and that such mechanization would eliminate the need of a separate flyboy
group. At that time, the Company agreed to include within the broad definition of
the Union's assigned work jurisdiction the work task of "handling of papers from
conveyors or escalators." But at the same time the Union agreed that, pending
completion of the Company's mechanization plan, that addition to the Union's
work jurisdiction was to be held in suspension, so that flyboys would still remain
outside the Union's representational sphere and the unit coverage of the contract.
Accordingly, the parties inserted in the 1948 contract, immediately after the
definition of the Union's work jurisdiction, the following caveat:
It is agreed that the Publisher may continue the present practice of employing
part-time workers on work of the Sunday editions. A tentative or provisional
plan for the elimination of all or most of the regular part-time work (other than
work on the Sunday edition) was submitted by the Publisher to the Union for its
consideration on September 17, 1948. It is the Publisher' s intention to execute
a plan for the mechanization of the mailing room as soon as practicable. It
is understood, however, that the present practices prevailing in the mailing
room for doing the work of that room shall continue until after the Publisher
has had time to implement a plan for the mechanization of this work.
The Company's plans for mechanization of the regular part-time tasks performed
by flyboys did not materialize as anticipated . The Company continued to employ
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 30 regular part-time flyboys. The existence of that crew as a group outside
the contract's coverage remained a bone of contention between the Company and
the Union. To achieve a compromise of that difference, the Company and the Union
in their 1953 contract negotiations agreed on a plan looking to the eventual elimina-
tion of the flyboys as a separate group outside the contract, and to the gradual trans-
fer of their work tasks to the journeymen and apprentices within the contract unit.
The plan was formulated so as not to injure the job tenure of any of the flyboys
then in the Company's employ. In their contract, executed January 29, 1953, the
Company and the Union agreed to delete the caveat quoted above and to substitute
in its stead the following provision-hereinafter to be referred to as the asterisked
clause:
'The Publisher agrees that the employment of regular daily part-time workers,
for work on other than the Sunday editions shall be discontinued as such regu-
lar part-time workers leave the Publisher's employment. As such regular
part-time work is discontinued it shall become that of full-time journeymen
and apprentices as defined in this contract. However, the departure of a
regular part -time worker shall not necessarily be considered as the opening
of a regular journeyman situation and the Publisher retains the right to designate
the number of employees necessary for the operation of the mailing department
provided that any replacement as herein stipulated shall be a journeyman.
All contracts entered into since 1953 have contained the same asterisked clause.
Subject to that clause, the contracts have provided, "The work of the mailing room
shall be performed only by journeymen and apprentices." The contract's definition
of journeyman has already been set out in the preceding subsection of this report.
As for the scope of the bargaining unit of which the Union is the recognized repre-
sentative , the present contract-as well as all others dating back at least to 1948-
provides:
The publisher recognizes the Union as the exclusive bargaining representative
of all employees covered by this Agreement. The words "employee" and
"employees" when used in this Agreement apply to journeymen and apprentices.
The General Counsel takes the position that flyboys must be regarded as within
the unit the Union exclusively represents. To support that position, the General
Counsel relies mainly on the contract provision which defines the Union's jurisdic-
tion as taking in all mailing room work, including the handling of papers from con-
veyors or escalators. But that provision, particularly when viewed in the light of
the bargaining history, shows clearly enough that while it was the parties' intent
gradually to bring the work done by flyboys within the compass of journeyman
work as attrition occurred in the flyboy group, it was also their intent to exclude
the remaining flyboys as individuals from the unit for which the Union was the
recognized bargaining agent. That is precisely the way in which the asterisked
clause has always been interpreted by the Company, the Union, and indeed by the
flyboys themselves. The contracts may not fairly be interpreted otherwise.
3. The situation with regard to the admission of flyboys into the bargaining unit,
as it has become crystallized since 1953
Before January 1954, neither the Union nor the Company interposed any objec-
tion to the selection of apprentices from the flyboy group. It was customary in fact
to look to either the nonunion flyboy or the nonunion stuffier ranks as a source for
apprentice candidates. Many of those now employed as journeymen started out
with the Company as flyboys or stuffers.
Indeed , far from reflecting a disposition to discriminate against flyboys because
they were nonunion, the Union was seemingly anxious to have flyboys brought into
the bargaining unit. This is illustrated by the following incident: In 1950 the
Union accepted seven of the flyboys into journeyman membership, without any prior
apprenticeship training, and then sought to have them upgraded to journeyman
positions in the mailing room under some proposed plan which , while not entirely
clear in the record, appears to have contemplated payment to them of an increas-
ingly graduated wage scale until they learned journeyman work and became eligible
to receive the full journeyman wage scale. The Company, however, refused to go
along with the Union's proposal, rejecting it on the ground that the seven flyboys,
though granted journeyman membership in the Union, were nevertheless not qualified
as journeymen within the contract's definition. As a result of the Company's rejec-
tion, all of the flyboys who had been granted journeyman membership quit the
THE KANSAS CITY STAR COMPANY 985
Respondent's employ, except one, Charles Bandy, who remained on in a flyboy
position.io
About the end of 1953, there developed the particular situation which has directly
led to the respective positions the Company and the Union now take with regard
to the selection of flyboys for apprentice positions. Three apprentice vacancies arose.
By joint agreement, three flyboys-Thomas Elliott, David Srader, and Carl Villines-
were selected to fill the vacancies. The three entered into the apprentice training
program and worked as apprentices for about a month or two. In the meantime,
the Company hired from the temporary part-time stuffier group 3 others-Edwin
Stevens, Paul Rupard, and Eugene Keil-as flyboys to replace the 3 who had just
been made apprentices. When this came to the Union's attention, the Union objected
strongly on the ground that the Company's replacement of flyboys was contrary to
the purpose and intent of the contract's asterisked clause. But the Company insisted
on applying a narrowly literal interpretation of that clause. It asserted that the
language of that clause simply restricted the Company from hiring replacements
for flyboys "as such regular part-time workers leave the Publisher's employment,"
but that the clause did not restrict the Company from replacing the three flyboys
who, though now apprentices, were nevertheless still in the Company's employ.
When the Company refused to retreat from its position, the Union retaliated by
revoking the consent it had theretofore given to the selection of Elliott, Srader, and
Villines as apprentices. As a consequence, the 3 were returned to their former
flyboy positions, and their 3 replacements were bumped back to their former stuffier
positions.ll
Since January 1954, the Company has employed some 8 or more new apprentices,
of whom about 7 were appointed after January 19, 1955, the Section 10 (b) date.
Of those so appointed all have come from the nonunion stuffier or extra boy class,
none from the flyboy group. Both the Union and the Company have remained
aware of the desire of at least some of the flyboys to become apprentices. But there
has been a tacit understanding between the Company and the Union that flyboys
would not be considered for apprenticeship training as long as the impasse on the
meaning and application of the asterisked clause remained unbroken. In the mean-
time, the Union has adhered to its position that it is entirely willing to have flyboys
fill apprentice vacancies, but not if the Company insists upon replacing them with
new flyboys, thus retarding normal attrition in the flyboy group. The Company too,
has adhered to the position that, while it is also willing to have competent flyboys
made apprentices, it is unprepared to do so as long as the Union objects to having
such flyboys replaced. Both the Company and the Union have declared their respec-
tive positions to the flyboys. And the flyboys have been aware all along that their
nonselection since January 1954 stems from the contract controversy, and is based
on no other reason.
Though unwilling to surrender its position on the contract controversy, the Union
since 1954 has indicated a desire to aid the flyboys in their aspirations to become
journeymen. Thus, the record reflects that in the negotiations leading to the most
recent contract the Union proposed that the asterisked clause be eliminated, and
that an arrangement be worked out under which the flyboys would be taken into
the unit, presumably as journeymen, but placed upon a graduated scale over a year
or two while they gained experience in journeymen's work. But this proposal-
which would have resulted in the immediate elimination of the regular part-time flying
force-was resisted by the Company and by it rejected. The Company considered
it opposed to its economic interests to give up its regular part-time workers any sooner
than it had to under the asterisked clause.
1o Bandy subsequently entered military service, and upon his return several years later
was given a journeyman's position. As noted above, Bandy is the only employee in recent
years hired as a journeyman without prior experience as a journeyman or at least some
training as an apprentice. Some of the others who quit in 1950 were rehired in later
years by the Company as journeymen, but it appears that in the meantime they worked at
other shops where they acquired mailers' experience.
n To this there is a sequel, which, while unimportant to the issues here, is nevertheless
of interest. The bumped stuffers filed unfair labor practice charges against the Company
and the Union, claiming that their statutory rights had been violated by their down-
grading. Through an informal settlement agreement, the charges were adjusted by the
reinstatement of the three stuffers to flyboy status. The end result was a net gain to
the Company of three in the flyboy group, a result which displeased the Company not at
all. Two of the former stuffers are now Charging Parties in this proceeding, urging that
they should now be made apprentices.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With this general survey of background facts now completed , I turn to a con-
sideration of the specific unfair labor practice allegations of the complaint.
C. The complaint 's general allegations of discriminatory employment practices
The complaint contains certain allegations that are not directly related to the
flyboy situation , as are the others to be discussed infra. Paragraph 7 of the com-
plaint alleges:
The Star and the Union , at all times material hereto, have enforced an employ-
ment practice requiring ( 1) membership in the Union as a condition of employ-
ment of journeymen mailers; ( 2) the Union 's approval in the selection and
employment of apprentice mailers; and ( 3) apprentice membership in the Union
after satisfactory completion of the first year of apprenticeship.
The alleged conduct is stated in the complaint to be violative of Section 8 (a) (1)
and (3 ) on the part of the Company, and of 8 (b ) ( 1) (A) and ( 2) on the part of
the Union . The three branches of this allegation will now be separately considered
in the order set out.
1. The alleged requirement of membership as a condition of employment of
journeyman mailers
It should be noted at the outset that the collective -bargaining agreement now in
force-as well as the earlier contracts that were in force during the Section 10 (b)
period-does not in its face condition employment upon union membership. As
earlier indicated , the contract-subject to the qualifications of the asterisked clause-
simply provides , "The work in the mailing room shall be performed only by journey-
men and apprentices ." And the definition of "journeymen" embodied in the con-
tract-and quoted in a preceding subsection of this report-is one that is tied, not to
union membership , but to competency qualifications.
The complaint does not attack the contract itself as imposing an illegal require-
ment of union membership as a condition of employment . During oral argument
the General Counsel conceded as much, stating, "I don't think that the historic
ITU contract , which provides for the employment of apprentices and journeymen,
is illegal, and I am not attacking it. . That it was not an affirmative purpose
of the complaint to "attack the validity of the contracts" is also admitted in the
brief filed by the General Counsel.12
>a Notwithstanding that concession , the General Counsel's brief goes on to declare that
"the validity [ of the contracts ] has been put into issue by the Star 's reliance on them as
a defense to the discriminatory conduct charged ." It is then contended in the brief that
the contracts were intended to impose closed -shop conditions . The brief does not specify
the particular defense of the Company to which reference is made. Presumably, the
General Counsel has in mind a contention of the Company that it cannot be held re-
sponsible for discriminatory hiring practices engaged in by its mailing room superintendent
without specific authorization from higher management where such practices are opposed
to the terms of the contract.
To support the position that the current contract , as well as earlier ones , was intended
to provide for' closed -shop practices, the General Counsel points to a clause in the . contract
providing that ITU general laws, "not in conflict with law or this contract , shall govern
relations between the parties on conditions not specifically enumerated herein." The
General Counsel couples this with reference to certain provisions in the ITU laws. One
of them is a provision declaring it an "unalterable policy" of the ITU to have all mailing
room work brought under the jurisdiction of the ITU, and directing subordinate union to
reclaim jurisdiction over mailing room work "now being performed by non -members."
Another, is a provision in the laws, declaring that "all persons performing the work of
foremen or journeymen . in offices under [ITU ] jurisdiction . . . must be active mem-
bers of the local union ." However , the General Counsel ignores another provision in the
ITU laws, providing , "In circumstances in which the enforcement or observance of the
provisions of the General Laws would be contrary to public law, they are suspended as
long as such public law remains in effect."
As noted, the issue whether the contract contains illegal closed -shop provisions comes
into this case peripherally , if at all, and is not directly involved in the unfair labor
practices alleged . As contract invalidity was not alleged in the complaint , not litigated
at the hearing , and expressly disclaimed as an issue by the General Counsel, I do not
think it may properly be considered here at all. But even if the situation were otherwise,
I do not believe the facts would warrant a finding that the contract , standing alone, is
THE KANSAS CITY STAR COMPANY 987
The specific issue to be met, then, is whether the Respondents, outside the contract,
imposed a requirement of union membership as a condition of employment for
journeyman mailers.
There is no evidence in this record that any nonunion person, otherwise qualified
for journeyman work, was ever rejected for employment because he was nonunion.
The record shows that the Company has occasionally employed for Saturday work
journeymen who are not members of the Union. But it also shows that without
variation all journeymen and substitutes that have been employed during the regular
workweek, on Mondays through Fridays, have been members of the Union, at least
at the times material to this proceeding.
The fact that nonunion journeymen were sometimes hired for Saturday work,
but never for regular weekday work, is perhaps explainable by the hiring procedures
followed, except for weekend employment, by Ralph S. Cantrell, the Company's
mailing room superintendent. Cantrell, although a management representative,
is also a member of the Union, as he is required to be under the contract. Cantrell's
testimony discloses that it was his customary practice whenever he required additional
journeymen to request the chapel chairman (the union steward) to supply such
men. A journeyman seeking employment with the Company, according to Cantrell,
would pursue the following course: If he were from out of town he would first
deposit his union card with the financial secretary of the Union and obtain a local
card. He would then report to the chapel chairman who would bring him to
Cantrell. Cantrell would assume from the fact that he held a union card that he
was a journeyman, but would nevertheless interview him to determine his ability,
as would also the chapel chairman. If the applicant was approved by both Cantrell
and the chapel chairman as having the requisite ability, he would be authorized to
list his name at the foot of the mailing room "slip board." As journeymen were
later required, they would be chosen from the slip board in the order .of the priority
of their listings; reductions in force would occur in inverse order. These procedures
did not apply to weekend work.
Cantrell further testified that, although the contract itself did not require a
journeyman to be a union member, he had an "unwritten understanding" with the
Union that, except on the open shifts on Saturday, no journeymen would be hired
other than those who held union cards. He testified at one point, "When anybody
comes to me without a card, I have to tell them that they have to see the Union."
At another point, Cantrell was asked whether he knew of any specific instance where
an applicant failed to get a job because he did not have a card. Cantrell, comment-
ing that the question was a "touchy" one, replied that he could recall none. But
he then voluntarily added, "If you would come to me tomorrow and apply for a job
without a union card, I couldn't hire you." Asked why, Cantrell explained, "Because
you don't have the qualifications and you don't have a union card." Queried as to
what he would do if a nonunion journeyman applied, with experience at another
newspaper where mailing room employees were unorganized, Cantrell answered,
"I probably would be filled up and wouldn't take [him]."
According to the Company, Cantrell's "understanding" that only union journeymen
would be hired for weekday work, was completely unauthorized by higher manage-
ment and inconsistent with the governing contract. The Company's secretary, Ray-
mond Barrows, who also acts as its labor negotiator, testified credibly that the
Company in its negotiations with the Union never entered into any "side deals" that
were not expressed in the written contracts themselves. According to him, the Com-
pany intended the contracts to mean what they said. Barrows interpreted the term
"journeyman," as used in the contract, as not dependent upon union status, but
broad enough to include any person with sufficient experience and training to qualify
him to do the commonly accepted phases of mailroom work.13
illegal. The contract itself contains no language conditioning employment on union
membership ; it defines journeymen in nondiscriminatory terms ; the incorporation by
reference of ITU laws is restricted to those "not in conflict with law or this contract" ;
and the laws themselves suspend the operation of any of its provisions where they may
be illegal. In these circumstances, I consider inappropriate the cases cited by the General
Counsel, such as City Window Cleaning Co., 114 NLRB 906, and others like it, holding that
"savings clauses" do not neutralize the unlawful character of illegal union-security provi-
sions that are expressed in a contract. For here no such provisions are expressed, nor are
they reasonably to be implied from the character of the incorporation by reference.
13 Robert W. Brown, the Union's president, testified at one point that the term "journey-
men," as he understood it, was restricted to a mailer who was both qualified to do
journeyman work and a member of the Union. But upon further examination, Brown
explained that was simply the interpretation which he, as a good union man, personally
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It may well be, as the Respondent Union argues, that neither the circumstance that
all regular journeymen are union members, nor the fact that the Company has
looked to the Union as a source of supply for journeymen, nor both together, provide
solid support for a finding of discrimination. But I am unable to agree that the
record apart from that shows only that Cantrell, and perhaps Brown as well,
possessed a discriminatory "frame of mind," which never was acted upon and
therefore never congealed into an unfair labor practice. The record shows in addition
that Cantrell in his hiring of journeymen actually followed practices that were
calculated to insure that only union journeymen would be hired for regular weekday
work. More than that, the record shows that Cantrell in doing so acted not on his
own but in accordance with an informal understanding or arrangement he had with
the Union. The.law is now well settled that where a company and a union become
parties to an agreement restricting employment to union members, the Company
violates Section 8 (a) (1) and (3), and the Union, Section 8 (b) (1) (A) and (2).14
And that is so though the agreement is not memorialized by written contract, but
takes the form of an informal understanding or arrangement.15 It is no less so
where, as here, the informal understanding supplying the guide to actual hiring
practices is at variance with the terms of a written collective-bargaining agreement
legal on its face and not the object of separate attack under a complaint.16
The Respondents argue that no unfair labor practice may be found in this case,
because of the absence of evidence that any specific individual was ever injured by
reason of the discriminatory employment practice. That argument must be rejected.
It is foreclosed by settled Board authority squarely to the contrary.17 For like
reasons, I reject the Union's argument that the Respondents may not be held to
have illegally restrained employees by reason of the unwritten understanding of
which Cantrell testified, because of the want of proof that that understanding was
communicated to employees or prospective employees. That argument, too, is dis-
posed of adversely to the Respondents, inferentially at least, by Board authority
already cited. Besides, this record is not entirely devoid of evidence from which an
inference of restraint may be drawn. The fact that nonunion journeymen often
applied for Saturday work, but never-as Cantrell would have it believed-for
weekday work, may not prove discrimination, but it serves at least to confirm the
existence of elements of knowledge and restraint.
The Company argues that it ought not be held accountable for Cantrell's discrimi-
natory conduct, both because Cantrell was a union member subject to union discipline
and because his conduct was unauthorized. But though a union member, Cantrell
was also a management representative under the contract. He was the Company's
responsible representative in the mailing room, with authority to engage in hiring
on the Company's behalf. As Cantrell in hiring journeymen was acting as the
Company's agent within the scope of his employment, the Company may not avoid
liability for his unlawful conduct on the plea that such conduct was not specifically
authorized. The Respondent's declaration made through its attorney at oral argu-
ment, that the Respondent, having now learned that Cantrell was misinterpreting
the contract in his hiring practices, "will be very quick to correct him," does not
relieve the Company of responsibility. The remedial order to be recommended below
will simply insure that the corrective steps the Company says it will take will in fact
be taken, and maintained.
On the evidence and for the reasons set out above, it is concluded and found that,
by maintaining and enforcing, in conformity with a mutual understanding between
them, an employment practice requiring membership in the Union as a condition of
employment of journeyman mailers employed on Mondays through Fridays, the
Respondents engaged in unfair labor practices, the Company, within the meaning
of Section 8 (a) (1) and (3), and the Union, within the meaning of Section
8 (b) (1) (A) and 8 (b) (2).
chose to give the term, and not an interpretation that stemmed from any discussions with
management on how that term should be construed. Brown neither denied nor affirmed
the "unwritten understanding" which Cantrell testified he had with the Union.
14 Acme Mattress Co., Inc., 91 NLRB 1010; The Childs Company, 93 NLRB 281; New
York State Employees Association, Inc., 93 NLRB 127.
15 Consolidated Western Steel Corporation, 94 NLRB 1590; Local 369, International
Hod Carriers, etc. (Frommeyer and Company), 114 NLRB 872.
16 Consolidated Western Steel Corporation, supra; Consolidated Western Steel Corp.,
108 NLRB 1041.
1' See, e. g., National Maritime Union of America, 78 NLRB 971 ; Great Atlantic: &
Pacific Tea Company, 81 NLRB 1052; Jones d Laughlin Steel Corporation, et al., 83
NLRB 916.
THE KANSAS CITY STAR COMPANY 989
2. The alleged requirements of union approval in the selection and employment of
apprentice mailers
The governing collective-bargaining agreement provides for joint approval by the
Company and the Union in the selection of apprentices, and, in addition, provides
for a neutral tie breaker in the event of disagreement. The legality of the apprentice-
ship approval provisions in their present form has been judicially approved. Evans
v. ITU, 81 F. Supp. 674 (D. C., Ind.), 22 LRRM 2576, 2578. During oral argu-
ment the General Counsel expressly disclaimed any contention in this case that the
contract's requirement of joint approval, standing alone, constituted an unfair labor
practice. The only point being made of this allegation-the General Counsel
explained-was that the joint approval clause was unlawfully utilized to discriminate
against flyboys. But that is an entirely separate matter, fully covered by an inde-
pendent allegation of the complaint to be considered below. Dismissal will be
recommended of the particular allegation here under consideration.
3. The alleged requirement of apprenticeship membership in the Union after
satisfactory completion of the first year of apprenticeship
The General Counsel concedes that such a requirement would be a legal union-
security provision if contained in a contract with a labor organization in compliance
with the filing requirements of Section 9 (f), (g), and (h) of the Act. But not so,
says the General Counsel, in the instant case, where the Union is admittedly not in
compliance. The real question here, however, is not one of law, but one of fact:
Has the General Counsel satisfied the burden of proving that apprentices were
required as a condition of their continued employment to become union members
at the end of their first year of apprenticeship?
The collective-bargaining contract imposes no such requirement on its face. In
an effort to spell out one, the General Counsel resorts to the contract clause which
incorporates by reference 1TU laws "not in conflict with law or this contract."
For purposes of the present allegation, the scope and legal effect of the incorporation
clause is not decisive. For, as found below, even if the laws may properly be con-
sidered part of the contract, they would still not support the allegation. There are
only two provisions of the laws that touch relevantly on this subject at all. One
provides that before an apprentice may be admitted to journeyman membership in
the Union, he must serve an apprenticeship period of 6 years. The other-and
the one specifically relied upon by the General Counsel-provides:
At the end of the first year, if the apprentice proves competent and the foreman
and the apprentice committee recommend him for apprenticeship membership,
he must be admitted to the Union as an apprentice member, and his application
blank with the medical examination on the reverse side be forwarded to the
International Typographical Union Secretary-Treasurer for an apprentice register
number.
This section, literally read imposes no requirement upon apprentices, but rather a
prohibition on local unions not to deny membership to apprentices otherwise
qualified. In any event, neither that nor the other section may fairly be construed
as requiring union membership as a condition of employment., At most, the
clauses impose certain requirements as a condition of membership. But a union
under the express proviso of Section 8 (b) (1) (A) is now as free as ever to
place such restrictions as it chooses upon admissions to membership, so long as such
restrictions are not also related to continued employment. It follows that the
particular allegation of the complaint now under consideration is not substantiated
on the basis of the contract.
Apart from the contract, the record shows this: Mailer apprentices employed by
the Company have invariably in the past both filed applications for apprenticeship
membership in the Union and have been registered on the ITU apprenticeship rolls.
But, so far as appears, no apprentice was ever told that he must do so if he
wanted to continue as an apprentice or otherwise remain in the Company's employ.
There is no proof of any understanding, arrangement or agreement between the
Company and the Union, even an informal one, requiring such membership as a
condition of employment or continued apprenticeship training. On the contrary,
Cantrell affirmatively testified without contradiction that he knew of none. No
situation ever arose where an apprentice did not voluntarily seek apprenticeship
membership at the end of his first year. What the attitude'ofthe Company and
the Union would have been if such a situation arose remains- a matter -for, conjec-
ture. In these circumstances, no inference unfavorable to the Respondents may
be drawn from the fact that apprentices have invariably applied for membership.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is certainly as reasonable, if not more so, to infer that apprentices have done' so
voluntarily out of a genuine desire to gain the advantages of union membership, as
to infer that their action was the result of unlawful compulsion.
Concluding as I do that there is no substantial evidence to support a finding that
apprentices were required by the Respondents as a condition of employment to
become union members at the end of their first year of apprenticeship, I shall recom-
mend dismissal of the allegations of the complaint to that effect.
D. The alleged discrimination in the selection of flyboys for apprenticeship
training
On this-the key issue in this case-the specific allegations of the complaint are
as follows:
10. At all times since January 1954, including the period from January 19,
1955,18 to date, the Star and the Union have failed and refused to nominate
and/or to approve the selection of, any of the flyboys who are employed by
the Star to receive the mailer apprenticeship training provided for in their
collective bargaining agreement, or to grant the requests of the flyboys to
receive appropriate training requisite to their attaining journeyman mailer
status.
11. The 'Star and the Union have engaged in the conduct stated in paragraph
10 hereof because the flyboys are the only present regular, daily employees in
the Star's mailing department who are non-members of the Union.
The background facts essential to a consideration of these allegations have been
set out above. As has been found, flyboys were frequently selected for apprentice-
ship training until January 1954. At that time there occurred the particular situa-
tion, fully described above, leading to an impasse between the Company and the
Union over the proper construction and application of the contract's asterisked
clause. As a result of the impasse, still unbroken, the parties reached a tacit
understanding that flyboys would not be selected for apprenticeship training until
the contract controversy was resolved. All this occurred before the Section 10 (b)
date.
The record is clear enough that the respective positions taken by the Company
and the Union with respect to flyboys remains unchanged to this date. It is undis-
puted that the contracting parties still regard as operative their understanding not
to consider flyboys for apprentice positions. An issue has been raised, however,
as to whether the evidence substantiates a finding of specific discrimination against
any of the complaining flyboys on the basis of affirmative conduct occurring within
the 6-month period prior to the filing of the charge.
As to whether the complaining flyboys specifically applied for, and were denied,
apprentice positions within the 10 (b) period, the record is far from clear. Cantrell
testified that it was his impression that at one time or another since January 1954,
all flyboys had come to him to inquire about their chances of getting into the
apprenticeship program. But he also testified that he could not recall whether
any such inquiries or requests for appointment were made of him by any in the
flyboy group after January 20, 1955. Chester Ettinger, who served on the Union's
apprentice committee until June 1, 1955, testified that while he was on the committee
flyboys approached him several times to ask why they were not permitted to
advance to apprentice positions. But he, too, could not recall exactly when this
occurred. At one point he did testify that the last time was "about 6 months"
before the charges were filed, but even so left uncertain on which side of the 10 (b)
date the inquiry fell.19 Paul Rupard, one of the Charging Parties, testified that he
asked Cantrell if he could become an apprentice "about the Spring of '55 I would
say," but immediately thereafter fixed the date more precisely as "in January or
February," thus also leaving uncertain whether the request was made before or
:after January 19, 1956. The testimony of Flyboy Thomas Elliott, the only other
witness to testify on this particular subject, comes closest to showing an application
within the Section 10 (b) period. He testified he spoke to Cantrell about getting
back into the apprenticeship program "at different times," without specifying exactly
at what times. But he also testified that "at least several months ago or so" before
the hearing he asked a newly appointed union member on the apprenticeship
- This is the Section 10 (b) date.
"Other portions of Ettinger's testimony reflect later conversations with flyboys about
the apprenticeship situation, but they also show that at such times he was no longer
an official of the Union and that he was simply asked to give his personal advice.
THE KANSAS CITY STAR COMPANY 991
committee, one Pennington, why the flyboys "couldn't have. an apprenticeship and
[Pennington] said he didn't know, that he had just been on there a short time . .
and he didn't know anything about that, but he just didn't seem to think there
would be any apprenticeship for us."
The General Counsel's brief seems to recognize that the proof may fall short of
supporting a finding that the Company rejected specific flyboy applications for
apprenticeship appointment within the 10 (b) period. The General Counsel's
argument is made to rest primarily on another theory. It is as follows: Within
the 10 (b) period the Company and Union continued to pursue a policy, in
accordance with their tacit understanding, not to consider flyboys for apprentice
positions. The flyboys were on notice that that policy remained alive. The
Respondents, on the other hand, remained aware, even if no formal apprentice
applications were made, of the continuing desire of flyboys to become apprentices.
Under all the circumstances-the General Counsel argues-and because the flyboys
were being "discriminated against as a class," it would have been futile, and it
was therefore unnecessary, for the flyboys individually to have requested apprentice
appointments. Consequently-the General Counsel concludes-each time a person
from outside the flyboy ranks was made an apprentice after the 10 (b) date, it
constituted a new and independent act of discrimination against the flyboys.
The factual statements upon which the foregoing argument rests are correct.
Whether the argumentative factual conclusion the General Counsel would draw
from them is equally correct, I find it unnecessary to decide. For I am persuaded
in any event that the General Counsel, even if right on the proposition that 10 (b)
does not apply, is nevertheless wrong in contending that a violation of Section
8 (a) (3) has been made out. And I think it would lead to a more definitive resolu-
tion of the basic controversy to predicate ruling on substantive considerations.
The 10 (b) facts and the General Counsel's theory on that point have been set
out at what may seem unnecessary length so that the Board may have before it
a full picture of what is involved should it disagree with the substantive con-
clusion made below. For purposes of further analysis, it will be assumed, though
it is not decided, that the record supports the General Counsel's claim that the
Respondents in fact applied for, and were denied, apprentice positions after
January 19, 1955.
The General Counsel's contention, that the flyboys were denied apprentice
appointments because they are nonmembers of the Union, is one, I confess, that
I have great difficulty in following. Neither custom nor union law contemplates
that apprentices be union members at the time of their appointment; indeed, they
are restricted by the Union from applying for membership until after satisfactory
completion of the first year of apprenticeship. Until the incident giving rise to the
contract controversy occurred in late 1953, neither the Company nor the Union
had indicated any disposition to bar flyboys from the apprentice ranks for the
reason that they were nonunion, or for that matter, for any other reason. On
the contrary, flyboys were encouraged when vacancies occurred to make applica-
tion for apprenticeship positions, as is evidenced in part by the large number of
present journeymen who began as flyboys. While it is true that none of the
nonunion flyboys have been made apprentices since January 1954, it is no less
true that all apprentices appointed since that time have been recruited from other
nonunion employee ranks, such as the stuffer group. It is not urged here that
flyboys were discriminated against since January 1954 because of any suspected
hostility to the Union. Any such possibility is clearly ruled out in any case by
the undisputed record facts showing the flyboys' continued desire to achieve
union status, and showing, too, the unsuccessful efforts made by the Union in
1950, and again as late as the last contract negotiations, to work out some arrange-
ment with the Company to satisfy the flyboys' ambitions for union status.
The inability of flyboys to acquire apprentice appointments after January 1954
was clearly referable, not to their nonunion status as such, but to the impasse
reached between the Company and the Union as to the proper interpretation and
application of the asterisked clause of the contract. As has been found above,
that clause was designed as a compromise to resolve competing objectives of the
Company and of the Union-the objective of the Company to retain a regular
crew of part-time workers outside the contract so that it might hurdle the daily
periods of peak production at a minimum cost to it, and the objective of the Union
to bring within the coverage of its contract all mailing room work performed by
employees regularly employed. The asterisked clause was directed to flyboys spe-
cifically, it is true, because they were the only mailing room employees employed
on a regular daily basis who performed work within the Union's craft jurisdiction
but outside the contract's scope. But neither that circumstance, nor the corollary
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident that all flyboys happened to be nonunion, rendered the purposes of the
asterisked clause unlawful within the meaning of the Act. Just as the Company
was guided by the proper economic objective of keeping down mailing room costs,
so, too, the Union was guided by the legitimate labor objective of achieving
greater job security for the journeymen and apprentices it represented, through an
increase in the quantum of work available for those it represented in the bargaining
unit. The asterisked clause was designed to arrange for the eventual transfer of
added work tasks into the bargaining unit, not to diminish the job tenure or
promotion opportunities of any of the individuals already employed in the flyboy
group. The wording of the clause evidences no intent to apply any pressure on
the flyboys because of their nonunion status. Quite to the contrary, the flyboys
were assured their jobs as long as they desired to remain. Under these circum-
stances the asterisked clause cannot be viewed as itself unlawfully discriminatory,
nor does the General Counsel appear to attack it as such.
It is true that as an indirect result of the asterisked clause, flyboys have been
excluded since January 1954 from whatever consideration they might have other-
wise received for appointment to apprentice vacancies. But that result is wholly
unrelated to any purpose or intent on the part of either the Company or the
Union to discriminate against the flyboys for the reason that they are not members
of the Union, or for any other reason the Act condemns. It is simply an unfortunate
incident of a bona fide contract dispute which the contracting parties have been
unable to settle. The Union remains now as ready as ever, indeed it appears anxious,
to admit flyboys into the unit as apprentices, and perhaps even as journeymen, if
the Company will yield its replacement claim-a claim the Union in good faith
believes to fly in the teeth of the purpose and intent of the asterisked clause. The
Company similarly, has no objection to having flyboys made apprentices, if the
Union will give up its claim that flyboys advanced to positions within the contract
unit may not be replaced-a claim the Company in equal good faith believes to
be based upon a misconstruction of the asterisked clause. The Union presses its
position on the contract controversy in pursuit and in furtherance of the same
legitimate labor objective it sought to achieve through the asterisked clause. The
Company remains adamant in its position, not only because it believes it is right,
but because it is content to continue the status quo, thus enabling it at once to
serve its economic interests, already noted, and to avoid renewed controversy from
further union challenges of its asserted right to replace flyboys made apprentices.
To support a finding of a discriminatory motive in a refusal to employ it must
be shown by specific evidence or reasonable inference, either that the employer was
guided in its refusal by a consideration the Act proscribes, or that the employer,
though not itself so motivated, acquiesced in, adopted or acted upon such an
unlawful consideration pressed upon it by a union. The respective positions of the
Company .and the Union on their existing stalemate cannot reasonably be construed
as motivated by any such consideration. And certainly their respective stands
do not fit the complaint's particular allegation that the flyboys are being discrimi-
nated against to encourage membership in the Union, "because the flyboys are
the only present regular, daily employees in the Star's mailing room who are
non-members of the Union."
Undoubtedly, the modus operandi to which the Company and the Union have
tacitly agreed interposes a block to the ambitions of these flyboys who desire to
become apprentices. But, from the fact that the flyboys are thus being injured, it
does not follow that their statutory rights are also being infringed. The flyboys
have no statutory right to become apprentices. They have only the right, as any
other applicants for employment, not to be discriminated against within the specific
meaning of that term as used in the Act. As the Supreme Court made clear in
the Radio Officers' Union, etc. v. N. L. R. B. case, 347 U. S. 17, the statute does
not outlaw discrimination in employment as such, "only such discrimination as
encourages or discourages membership in a labor organization is proscribed." As
that case also makes clear, an employer's motive in discriminating-or that of a
union where an employer acts in response to a union's desire-is always relevant,
for if the discrimination is to be illegal, it must be aimed at a proscribed objective.
The Radio Officers case, to be sure, also holds that specific proof of an intent to
discourage or encourage is not indispensable in all cases; that if the conduct is of
a kind that "inherently encourages or discourages union membership," it is open
for the Board to draw an inference of illegality from such conduct alone. But, as
explained in the concurring opinion of Mr. Justice Frankfurter, any inference drawn
from an employer's alleged discriminatory acts is in any event a rebuttable one, it
being open to an employer to show by additional facts that the discrimination was
THE KANSAS CITY STAR COMPANY 993
"so patently referable to other [and lawful] considerations" as to preclude a finding
of a violation.
It has been suggested that an inference of illegal encouragement should be drawn
on this theory: that, but for the Union's position on the contract. controversy, the
Company would have continued to consider flyboys for apprentice openings; that
the failure of the Company to do so since 1954 must therefore be viewed as having
been "caused" by the Union; that by adopting a position detrimental to the flyboys
that it would not have taken but for the Union, the Company disclosed the power
and enhanced the prestige of the Union; and that the natural and forseeable conse-
quence of all this was encouragement of union membership. In the factual context
of this case I consider that theory unsound. To begin with, I have great difficulty
in going along with the factual premise that the Union "caused" the Company
not to consider flyboys for apprentice jobs. That was not the Union's desire or
intent at all; indeed, it was the opposite. The Union objected only to the Company's
insistence that it had the right under the contract to replace the flyboys. All the
Union sought then and all it seeks now was to have the Company abide by its
contractual obligation, as the Union in good faith construed it. It is a strange
concept of law that would taint with illegality good-faith insistence on the
performance of a lawful contract obligation.
Moreover, even if it could be properly found that the Union "caused" the denial
to flyboys of advancement opportunities, that alone would not necessitate an inference
of resultant discrimination. For while, under the Radio Officers case, it is perhaps
permissible, at least in certain circumstances, to infer an intent to encourage union
membership from a finding of union causation, without more, such an inference is
not a required one. Radio Officers, fully read, leaves no doubt that such an inference,
even where allowable, is not to be given the rigidity of a conclusive rule of law,
but is one that may be rebutted by other evidence showing that the alleged discrimi-
natory conduct was referable to lawful considerations wholly unrelated to any
question of union membership or union fealty of those claimed to have been dis-
criminated against, or to their performance of union obligations, or the like. The
record in this case is wholly at odds with a conclusion that the denial to flyboys
of apprenticeship training was geared to any aspect of union membership of those
alleged to have been the victims of discrimination, or to the exercise by them of
any right the Act protects. The record shows instead-affirmatively and con-
vincingly-that the denial was so patently referable to other considerations, lawful
in themselves and having no relationship to matters with which the Act is
concerned, as to negate any inference that might otherwise arise from union
causation, if such there was, that the flyboys were discriminated against to encourage
union membership. See Daugherty Company, Inc., 112 NLRB 986, 988-999,
1003-1005.
For the reasons stated, I find the complaint's allegation here in question
unsubstantiated, and shall recommend its dismissal.
E. Alleged discrimination against flyboys in the assignment of work tasks
The pertinent allegations of the complaint are as follows:
6. At all times material hereto the Union has objected to the Star's assignment
of flyboys to any journeyman mailer's duties, or to any work task within the
work jurisdiction of the Union, other than that of flying the escalators and
elevators, as long as journeyman mailers and/or apprentices are available to
perform such work tasks.
12. The Star, because of the Union's conduct as stated in paragraph 6 hereof,
has on numerous occasions during the period of time relevant to this com-
plaint, excluded and deprived the flyboys from performing various work tasks,
and/or denied them work assignments which it has awarded to journeyman
mailers and apprentice mailers, in preference of the flyboys, solely because of
the latter's nonmembership in the Union.
As has already been found, the collective-bargaining agreement grants the Union
recognition as the exclusive bargaining agent of all journeymen and apprentices,
the only categories of employees covered by it; provides that work in the mailing
room shall be performed by journeymen and apprentices only; and, in terms of
union jurisdiction, specifically defines in minute detail the work tasks falling within
the contract's unit coverage. The contract requirement that mailing room work
be performed by journeymen and apprentices only is, however, qualified by the
476321--58-vol. 119-64
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asterisked clause, which in effect allows the Company to retain its existing crew
of flyboys to perform the specific work for which they were hired and which flyboys
have traditionally done.
There is no evidence that any union official ever voiced an objection of the
kind alleged in paragraph 6 of the complaint, or that the Company ever at-
tempted, or, for that matter, even wanted, to assign flyboys any but flyboy work
tasks. There can be no doubt, however, that the Union and the Company as
well, read the contract as barring flyboys from work tasks other than the limited
tasks to which they were regularly assigned, and that the Union would have viewed
it as a transgression of journeyman and apprentice job rights, had the Company
assigned them additional mailing room duties.20
The General Counsel's theory on the issue now before us is not entirely clear,
at least to me. It appears to be this: that the Company, at the instigation of the
Union, imposed upon the flyboys a discriminatory condition of employment, by
giving force and effect to the Union's work jurisdiction claims, therefore confining
flyboys to the limited work task of flying escalators thou&h they are capable of
performing at least some of the other work tasks in the mailing room, and thereby
depriving them of an opportunity to perform additional work tasks that might en-
able them to acquire skills necessary to become journeymen. In support of that
theory, the General Counsel cites El Diario Publishing Co., Inc. 114 NLRB 965,
and points particularly to the following quotation from the Intermediate Report the
Board adopted in that case:
there can be no doubt that a "condition" of . [an employee's] em-
ployment is the nature of the duties he performs for those wages. The duties
an employee performs relate not only to his present contentment with the
job and his own estimate of its duration, but also to his future career as the
result of his retention or loss of any acquired skills because of the use or
nonuse of them.
The General Counsel's reliance on the El Diario case is misplaced. That case,
and specifically the quotation relied upon, dealt with an entirely different factual
situation-an employee on a job, apparently within the bargaining unit, who was de-
moted from a better job and given less desirable work, though at the same wages,
because he was not a union member. That situation, of course, involved a clear
case of discrimination, for the employee there suffered a change in his employment
conditions, resulting in a diminution of advancement opportunity, precisely be-
cause he was nonunion. But that is not the problem we have here. This is not a
case of demotion, or of the deprivation of employment rights or privileges pre-
viously accrued. This case presents the question of whether the denial to flyboys
of work tasks reserved by collective-bargaining agreement to a bargaining unit from
which flyboys have always been excluded itself imposes a discriminatory condition
of employment. That such is the real question here is reflected in part by the
following colloquy at oral argument:
TRIAL EXAMINER: What your argument seems to come down to is that any
time work jurisdiction is reserved to a particular craft, or to a particular union
representing employees, that employees falling outside the contract unit of that
particular union who otherwise might get the work but don't, those employees
are being discriminated against.
Mrs. FASSic: You might summarize it like that.
To hold with the General Counsel that such a situation involves illegality would
run afoul of fundamental concepts of the Act, as reflected in part by Sections 9, 8
(b) (4) (D), and 10 (k). The restriction by contract of work assignments to
employees in a given craft or in a particular bargaining unit, to the exclusion of
others falling outside that craft or unit, has long been recognized as lawful. And
20 At the hearing, considerable time was devoted to litigating the question-of doubtful
materiality here-whether flyboys are competent to perform work tasks regularly assigned
to journeymen and apprentices. As to that, the record shows that, of the more simple
journeyman work tasks, there are a number that flyboys might now easily do-such as
counting odd papers ; that there are others with which they have had some actual ex-
perience while working as temporary extras on open weekend shifts-such as stacking
papers, stuffing and carrying ; and that there are still others, requiring little skill, that they
could readily learn to do in a short time if given the opportunity. But the record also
shows that, included among the journeyman's great variety of work tasks, there are a
considerable number calling for substantial skill and, in some cases, long and intensive
periods of training.
THE KANSAS CITY STAR COMPANY 995
where, as here, the intent is clear, it seems of little importance whether the assigned
work tasks are defined in terms of "contract coverage," or "appropriate unit," or
"union work jurisdiction." So long as the boundaries are fixed, as they are in the
contract in this case, on the basis of craft or other appropriate unit lines, and not
on the basis of union membership, or the want of it, the exclusive assignment of
fixed work tasks to employees contained in the agreed-upon appropriate bargaining
unit is not only lawful within the meaning of Section 8 (a) (3); it is necessary if
the contract is to be meaningful.
The General Counsel makes the added argument that the contract in this case
could not have effected a lawful assignment of work in any event because of the
discriminatory employment practices alleged to have been engaged in by the Re-
spondents. In the particular circumstances of the instant case, I find that argument
to be without merit. United Association of Journeymen & Apprentices, etc. tPhila-
delphia Association), 108 NLRB 186, 200,21 upon which the General Counsel re-
lies, is inapposite. In that case the contract was illegal on its face, since it re-
quired that the defined work tasks be performed only by union members. In this
case, the contract itself contains no such unlawful condition. The only thing claimed
in the complaint's allegation found above to have been sustained, and the only
thing proved, was that the parties by collateral arrangement outside the contract
pursued a discriminatory employment practice as to journeymen. The complaint
does not call into question the validity of the contract itself, and at the hearing the
General Counsel expressly disclaimed any intent in this proceeding to attack the
legality of the contract or to have it set aside. Under these circumstances, with the
issue of the contract's legality not before the Board,22 no basis is left for asserting
that a part of that contract-the section dealing with the limitation of unit work tasks
to unit employees, a section clearly not illegal, standing alone-should be denied
legal effect.
Other considerations aside, there is a more fundamental reason for rejecting as
unsupportable the allegation in question. That allegation charges unlawful dis-
crimination against the flyboys specifically. But the flyboys were hired by the Com-
pany to do a limited kind of work only. They accepted their employment on that
basis. They are therefore scarcely in a position to complain that they have been
discriminated against in their terms and conditions of employment simply because
they have been required to confine themselves to the very work tasks for which
they were hired. Concluding as I do that there was no discrimination against the
flyboys to begin with, there is no need to reach the additional question, necessary
to a finding of an 8 (a) (3) violation, as to whether the record here could in any
event support a finding that the conduct complained of was such as inherently
to encourage or discourage union membership, or otherwise support a finding of
unlawful purpose.
For the reasons set out above, dismissal will be recommended of the unfair labor
practice allegations based upon paragraphs 6 and 12 of the complaint.
F. Alleged discrimination based on disparity in wages and other
terms of employment
These allegations are directed only against the Company-the Union is not in-
volved. The complaint alleges that by reason of the flyboys' nonmembership in
the Union, the Company discriminated against them in relation to the journeymen
and apprentices, by paying them lower rates for identical work tasks and providing
them with less favorable employment terms with respect to premium pay, the
guaranteed workday, vacation, and holiday benefits, and relief periods.
The facts relating to the alleged disparity are not disputed. The hourly rates
of journeymen are substantially higher than those paid flyboys. Flyboy rates, how-
ever, have always been higher than those of first year apprentices, and since 1956,
of day shift second year apprentices as well. Journeymen and apprentices are
guaranteed a minimum 71h-hour workday and have a 371/2-hour workweek. They
are compensated at premium rates for work in excess of 71/z hours a day or 371/2
hours a week. The guaranteed day of the part-time flyboys is 4 hours on the day
shift and 5 hours on the night shift. They receive no overtime rates unless they
have worked a 40-hour week. Unlike apprentices and journeymen, flyboys do not
receive a night-shift differential. Flyboys, as contrasted to journeymen and ap-
prentices, received no paid vacations until 1955. The vacation benefits granted
21 Incorrectly. cited in the General. Counsel's brief.
22 Cf. Bechtel Corporation, 108 NLRB 823, 835; National Association of Broadcast
Engineers and Technicians, etc., 110 NLRB 1233, 1243.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to journeymen and apprentices even today remain more liberal than those granted
flyboys. The employees represented by the Union have 6 recognized holidays, for
work on which they are paid at double-time rates. Flyboys did not receive premium
pay for holiday work until 1956, when they were allowed 3 holidays through Labor
Day. Though flyboy work calls for more physical exertion than most other mailing
room operations, flyboys are given no relief from this work, though they may have
rest periods when they ask for it. Journeymen and apprentices spell each other
when assigned to flywork, and are not usually kept in flying work for more than
an hour at a time, at the conclusion of which they are transferred to other op-
erations requiring less physical effort.
The issue here is whether, under all the circumstances present, the facts of
disparity spell out a case of unlawful discrimination. The General Counsel argues
in substance that since flyboys perform work tasks that are sometime also performed
by journeymen and apprentices, and are competent, though now allowed, to perform
others, and since-in the General Counsel's view-they properly belong with
journeymen and apprentices in a single appropriate unit, the disparate treatment
must, as a matter of law, be viewed as unlawful discrimination, on the theory that
such disparity has the inherent effect of encouraging membership in the Union.
To support that theory the General Counsel relies entirely on the Supreme Court's
decision in the Gaynor News case (Radio Officers' Union, etc. v. N. L. R. B.,
347 U. S. 17).
But Gaynor News is different. There the Court had before it a situation in-
volving disparate treatment between two groups of employees, employed in pre-
cisely the same jobs, and contained in a single bargaining unit of which the union
was the exclusive bargaining agent . Moreover, there was no basis for the dis-
parity, except distinctions drawn along union membership lines. In the Gaynor News
case the Court expressly declared, "We express no opinion as to the legality of
disparate payments where the union is not the exclusive bargaining agent since
that case is not before us." It emphasized that its holding was also pinpointed on the
principle "that a natural consequence of discrimination, based solely on union
membership or lack thereof, is discouragement or encouragement of membership
in such union." And it took pains to point up that the case involved discrimination
between "union employees doing a job" and nonunion employees "doing the same
job."
In the instant case, the flyboys are not employed in the same job as journeymen
and apprentices. Flyboys are part-time employees with a very limited job function.
True, full-time journeymen and apprentices may on occasion be assigned for short
periods of time to perform flyboy tasks. But they also have other broader and'
more skilled job functions, as this report has earlier pointed out. ' Moreover, as
found above, the flyboys are not in the bargaining unit of which the Union is the
recognized exclusive bargaining agent, and never have been. The cases cited by
the General Counsel to show that the Board customarily includes flyboys in mail
room units are beside the point. This is not a representation case, and the question
here is not what the Board would have done if the issue of what constituted the
most appropriate unit were originally before it. Even in representation cases, the
Board does not ignore what the parties in the past may mutually have agreed upon
as appropriate bargaining units, and often gives decisive weight to collective-
bargaining history. Indeed, the Zia principle,23 which I think would have been
unquestionably applicable here if this were a representation case, would seem to
leave no doubt that, though the Board in such a proceeding might have viewed the'
flyboys as includable in a single unit with journeymen and apprentices, it would
also find, in view of the bargaining history, that a unit excluding flyboys was not
an inappropriate one 24 Finally, it cannot be said in this case, as was said in Gaynor
News, that the only basis for distinction between the two groups of employees
disparately treated was their union membership, or want of it. The fact that flyboys
perform a single unskilled task, while journeymen and apprentices perform a varied
number of tasks, some of them highly skilled, itself provides a basis for distinction
on other grounds. Nor is that negated by the evidence showing that there are some
in the journeyman class who are capable of performing only the simpler operations;
for the journeyman rate, and that of the apprentices as well, is a uniform one for.
all in the class, and takes into consideration the highest as well as the lowest '
23 The Zia Company, 108 NLRB 1134.
21 Further, Board authority reflects that if the Company and the Union had attempted
to force the flyboys against their will into the established unit, 'the Board would .consider
it repugnant 'to the basic policies of the Act. See The Item Company,_ 113 NLRB 6T;
Chicago Freight Car & Parts Co.; 83 NLRB 1163.
THE KANSAS CITY STAR COMPANY 997
skills to be found in it. The fact that one group of employees is composed of part-
time employees, mainly of schoolboy age, while the other is composed of employees
who have already committed themselves to employment in the trade, is another
basis for distinction unrelated to union membership. Certainly, no one would sup-
pose, for example, that a part-time employee is entitled to the same minimum
guaranteed hours of work as a full-time one, or the same vacation benefits. And
as for other elements of disparity in employment conditions, it must be remembered
that those achieved by employees in the unit were gained through organization and
collective bargaining, while the unrepresented flyboys have had to rely on individual
bargaining. That alone provides an explanation for the distinctions made, and one
that may not be considered unlawful, unless one is prepared to take the extreme
position that an employer must, if he would not engage in an unfair labor practice,
raise the standards of his unorganized workers to the level attained by an organized
group through the processes of collective bargaining.
In my view, this case is controlled by Anheuser-Busch, Inc., 112 NLRB 687, where
the Board, after a full analysis of the Gaynor case, concluded:
where, as here, the employer accords an economic benefit to the employees
in a separate unit represented by its own bargaining agent without according
like treatment to the employees in another unit represented by another bargain-
ing agent, there is clearly no inherent unlawful intent. In such circumstances
an inference of such motivation cannot be drawn from the disparity
of treatment alone; it must necessarily be predicated on other independent
evidence.
There is no independent evidence in this case that the Company was motivated by
a design to encourage membership in the Union; indeed much of the record shows
that that was the last thing the Company wanted. True, the disparity in Anheuser-
Busch was between two independently organized groups, not, as here, between an
organized unit and employees outside that unit. But that does not provide a sub-
stantial basis for distinction in principle. Moreover, even if an inference were
otherwise allowable, the following dictum of Mr. Justice Frankfurter in his con-
curring opinion in the Radio Officers case, supra, would still apply:
Of course, there will be cases in which the circumstances under which the
employer acted serve to rebut any inference that might be drawn from his
acts of alleged discrimination standing alone. For example, concededly a raise
given only to union members is prima facie suspect; but the employer, by
introducing other facts may be able to show that the raise was so patently
referable to other considerations, unrelated to his views on unions and within
his allowable freedom of action, that the Board could not reasonably have
concluded that his conduct would encourage or discourage union member-
ship.
This is such a case.
For the reasons stated, I shall recommend dismissal of the allegations of the com-
plaint based upon disparate treatment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, to the extent
they have been found to be unfair labor practices occurring in connection with
the operations of the 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 commerce and the
free flow of commerce.
V. THE REMEDY
It having been found that the Respondents have engaged in certain unfair labor
practices, it will be recommended that the Respondents, and each of them, cease
and desist therefrom, and from any like or related conduct, and take certain af-
firmative action to effectuate the policies of the Act.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Typographical Union, Mailers Local Union No. 7, AFL , is a labor
organization within the meaning of Section 2 (5) of the Act.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By entering into an unwritten understanding , arrangement , and agreement re-
quiring membership in the Union as a condition of employment of journeyman
mailers, and by maintaining and enforcing an employment practice in accordance
therewith, the Respondent Company engaged in unfair labor practices within the
meaning of Section 8 (a) (1) and (3) of the Act, and the Repondent Union engaged
in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
4. The Respondents have not engaged in unfair labor practices by reason of the
other allegations contained in the complaint.
[Recommendations omitted from publication.]
Shamrock Dairy, Inc., Shamrock Dairy of Phoenix, Inc., and
Shamrock Milk Transport Co. and International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America , Local Union No. 310.1 Case No. 21-CA-292. Decem-
ber 16,1957
DECISION AND ORDER
On December 27, 1956, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent, Shamrock Dairy, Inc., had engaged in and was
engaging in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter the General Counsel, the Respondent, and certain Inter-
venors 2 filed exceptions to the Intermediate Report, and they and
the Charging Party filed briefs.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman Leedom
and Members Murdock and Bean].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
' The Board having been notified by the AFL-CIO that it deems the Teamsters' certifi-
cate of affiliation revoked by. convention action, the identification of this union is hereby
amended.
2 The Intervenors are 46 truckdrivers who signed individual contracts with the Re-
spondent which purportedly converted the drivers from employees to independent con-
tractors. The complaint alleged that the Respondent, while under contract with the
Union, the Charging Party, refused to bargain by entering into these individual contracts,
and unlawfully discharged certain drivers who did not sign such contracts. At the hear-
ing, the Intervenors sought to intervene to protect their interests under the individual
contracts. The Trial Examiner denied intervention on the ground that the instant pro-
ceeding was restricted to enforcement of public rights and that any Board order would
not preclude the assertion of any rights of the Intervenors in a proper forum. The
Intervenors excepted to this ruling. The Trial Examiner's ruling was proper. National
Licorice Company v. N. L. R. B., 309 U. S. 350, 363-366.
s The Respondent's request for oral argument is hereby denied as the record, exceptions,
and briefs , in our opinion , adequately present the issues and positions of the parties.
119 NLRB No. 134.