Typemen Inc.

National Labor Relations Board - Board Decisions

May 24, 1977

229 N.L.R.B. 886 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York Typographical Union No. 6 (Typemen,
Inc.) and Salvatore Wright. Case 2-CB-5819
May 24, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On March 1, 1976, Administrative Law Judge John
P. von Rohr issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel
refiled a letter memorandum submitted to the
Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith and to adopt
his recommended Order, as modified herein.
We disagree with the Administrative Law Judge's
conclusion that Respondent violated Section
8(b)(1)(A) by fining and expelling Charging Party
Wright. For purposes of clarity, the facts governing
this determination, though fully set forth in the
Administrative Law Judge's Decision, shall be briefly
restated.
On June 3, 1974, the Respondent struck Artintype,
a printing concern located on the fourth floor of 228
East 45th Street in New York City. Typemen,
another printing operation, occupied the 10th floor
of the same building. Up until the time of the strike,
Wright had been a working foreman for Artintype
and a member of Respondent. On the day following
the strike, Wright commenced working, as a statuto-
ry employee, for Typemen. He did not relinquish his
membership in Respondent. For crossing the picket
line set up against Artintype, and for working for
Typemen, a nonunion shop, Wright was, on Novem-
ber 21, 1974, fined and expelled from Respondent.L
The General Counsel's basic premise, in contend-
ing Respondent violated Section 8(b)(1)(A) by
disciplining Wright, is set out in the Administrative
Law Judge's Decision. 2 Dispositive of the case, as the
i The initial union charges against Wright were filed on June 24, 1974. by
Respondent's business representative. The complaint alleges that Wright
was promoted to a supervisory position "in July 1974." There is testimony,
on the other hand. that Wright was, in fact, a supervisor as early as June 10
or II. At no point. however. in this proceeding, has the General Counsel
relied on Wright's possible supervisory status as of June 24. 1974. as the
basis for finding that Respondent violated Sec. 8(b)(1)(B) by disciplining
him. Our conclusions with respect to Wright are based, therefore. only on
229 NLRB No. 127
General Counsel concedes in his brief, is the
determination whether the Respondent's "conduct
here amounted to a secondary boycott," and, in
agreeing with the General Counsel that Respondent
violated Section 8(b)(1)(A), the Administrative Law
Judge found: "the Respondent's conduct in fining
and expelling Wright was designed to induce this
employee to withhold his services from Typemen for
an object of forcing or requiring Typemen to cease
doing business with Artintype, the primary employ-
er."
The finding that Respondent's "conduct here
amounted to a secondary boycott" is, we agree,
fundamental to finding the disciplining of Wright
unlawful under Section 8(b)(1)(A). Both the General
Counsel and Administrative Law Judge rely on those
Board decisions which hold that a labor organiza-
tion's discipline of an employee-member for refusing
to engage in unlawful or unprotected labor organiza-
tion activity is, itself, unlawful under Section
8(b)(1)(A) as a restraint on the employee-member's
exercise of Section 7 rights. In such cases, however,
the illegal or unprotected nature of the labor
organization's activity is established first and apart
from the asserted further illegality of union attempts
to compel its members to "go along with" the initial
illegal or unprotected union activity. The basic flaw
in the General Counsel's attempt to utilize those
cases here emanates from the failure to allege, and
consequently litigate, the 8(b)(4)(B) aspect of the
case, with the result that the General Counsel has not
proven, on the state of this record, the underpinning
of his case-that Respondent did not have a primary
dispute with Typemen. To the contrary, the facts of
record demonstrate that, since the inception of
Typemen, Respondent has continuously and consis-
tently been concerned with the question of Type-
men's financial and operational independence from
Artintype and has sought evidence from the former's
founder of such independence. Unsatisfied with such
evidence of that independence as was proffered, the
Respondent has refused to sign a contract with
Typemen with the result that Typemen operates as a
nonunion shop for which its members may work only
in violation of Respondent's membership rules.3
The General Counsel contends that the disciplining
of Wright "clearly" was designed to force him to
cease working for Typemen to pressure the latter to
cease doing business with Artintype, "the employer
the General Counsel's apparent conviction that at the time charges were
initiated against Wright by Respondent he was a statutory employee and
that he was disciplined for crossing the picket line and for working for
Typemen as an employee.
2 See sec. D of his opinion.
3 The evidence reflects that Respondent has not sought either to force
Artintype to utilize Typemen's services or Typemen to cease furnishing
services to Artintype.
886
NEW YORK TYPOGRAPHICAL UNION
with whom the union has a dispute." But we think it
clear on this record that the Respondent also had a
legitimate dispute with Typemen which, without
regard to the "ally" considerations addressed by the
litigants and Administrative Law Judge, did not
prohibit the Respondent from enforcing its constitu-
tional law on working for a nonunion shop against a
continuing member. 4
In short, the General Counsel has not proven, on
the facts established here, an unlawful "object" in the
Respondent's disciplining of Wright. All the record
demonstrates is that the object of that discipline was
as it was stated, enforcement of the Respondent's
constitutional proscription against members working
for a nonunion employer. 5
We conclude, in agreement with the Administrative
Law Judge, that the Respondent violated Section
8(b)(l)(B) by disciplining Supervisor Munchesgang,
but dismiss so much of the complaint as alleges
violation of Section 8(b)(1)(A) in the disciplining of
Wright. 6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, New York Typographical Union No. 6, its
officers, agents, and representatives, shall take the
action set forth in said recommended Order, as so
modified:
I. Delete paragraphs l(b) and (c).
2. In paragraphs 2(a) and (b) delete the words
"and Salvatore Wright" and substitute the words
"fine" and "expulsion" where the words "fines" and
"expulsions" appear.
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER WALTHER, dissenting in part:
I agree with the Administrative Law Judge's
finding of an 8(b)(1)(B) violation in this proceeding.
However, unlike my colleagues, I would also affirm
the 8(b)(l)(A) violation the Administrative Law
Judge further found.
4 Unlike our dissenting colleague, we are not willing, indeed not able, to
find a violation in the possibility that the purpose of the fine was to exert
pressure upon Typemen to cease doing business with Artintype. The record
does not establish, by a clear preponderance of evidence, that unlawful
object. And that the Respondent did not specifically allude to the primary
quality of its dispute with Typemen in defense of its discipline does not
remove that obstacle. Even more assuredly, that the Respondent and
Typemen have been unable to resolve their dispute because of the
Respondent's unwillingness to do so is wholly irrelevant. We hold, only, that
it was necessary for the General Counsel to prove, by a clear preponderance
of the evidence, that the disciplining of Wright was directed to the
My review of the record shows the following facts.
Because of an impasse in negotiations, the Union
struck Artintype. Artintype was located in the same
building as another employer in the printing busi-
ness, Typemen. Typemen was begun some years ago
by a former employee of Artintype. Quite some time
before the strike, Artintype had ceased doing
photocomposition work. Since this was the primary
function of Typemen, Artintype subcontracted most
of its photocomposition work to Typemen and had
for some time. Artintype had also subcontracted this
work to other employees. Years before, when
Typemen was incorporated, under separate owner-
ship and management, Typemen had requested
bargaining with the Union. The Union, unsure of
Typemen's independence, declared its suspicion of
the relationship between Typemen and Artintype
and has continuously refused to bargain with
Typemen. Consequently, Typemen, as a result of the
Union's actions, has remained a nonunion employer.
After the strike began, one supervisor and one
employee of Artintype were hired by Typemen and
each crossed the picket line to work at Typemen. The
supervisor was disciplined by the Union, hence the
8(b)(l)(B) violation. However, the 8(b)(1)(A) issue is
the more difficult question here.
Employee Salvatore Wright was hired by Typemen
and he crossed the Artintype picket line to reach his
job with Typemen. He had no choice since both
employers were located in the same building. The
Union filed charges, expelled him from membership,
and imposed a fine on him. The charges alleged that
he violated the Union's constitution by (I) crossing
the picket line and (2) by workingfor a nonunion shop,
i.e., Typemen. The Administrative Law Judge upon
close analysis found that Artintype and Typemen
were not allied employers. Accordingly, the Adminis-
trative Law Judge found, citing Communications
Workers of America, AFL-CIO, Local 1127 (New
York Telephone Company), 208 NLRB 258, 267
(1974), that by fining Wright for crossing a picket
line which did not properly stand as a primary picket
line of Typemen, with whom the Union had no
dispute, the Union revealed a secondary intent and
object, and effectuated it by fining Wright, thereby
violating Section 8(b)(l)(A)-i.e., that Wright had
Respondent/Artintype relation and not the Respondent/Typemen relation
and, in terms of substantiality of evidence, we are not convinced that was
the case.
5 We deem it unnecessary to determine whether Typemen has allied itself
with Artintype in the latter's dispute with Respondent
6 Chairman Fanning would for the reasons stated in his dissenting
opinions in Chicago Typographical Union No. 16 (Hammond Publishers, Inc.).
216 NLRB 903 (1975). and Wisconsin River Vallev Districr Council of the
United Brotherhood of Carpenters and Joiners of 4merica, A FL- CIO (Skippi
Enterprises. Inc.). 218 NLRB 1063 (1975), dismiss the 8(b) I B) aspect of
the complaint also.
887
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been disciplined for refusing to engage in unprotect-
ed concerted activity.
My colleagues, without explanation, simply state
that the Union had a primary dispute with Typemen,
also. Since my colleagues offer little explanation for
their theory, there is not much to be said about it,
except that it has no substance. My colleagues also,
however, without citation to authority, hold that the
same physical act may not supply the basis for
finding the picket line secondary and for finding an
8(b)(l)(A) violation. Logic does not require this
result. According to the facts, the picket line was
clearly primary as to Artintype; but then the picket
line assumed a dual purpose and object when it
attempted to restrain employees from working for an
employer with whom the Union had no dispute; i.e.,
Typemen. Furthermore, when we add the evidence
of the Union's refusal over the years to acknowledge
that Typemen was an independent contractor within
the meaning of the Act, I would find sufficient
evidence of secondary object and, thus, the Union's
fine violated Section 8(b)(1)(A). 7
7 I note that my colleagues find the "ally" doctrine considerations of this
case, which were addressed by all the parties, to be irrelevant. Such
observation is quite interesting in light of the fact that the Union's only
defense in its brief to the alleged illegality of the fine against Wnght was its
contention that Typemen and Artintype were allies. This contention the
Administrative Law Judge properly rejected and, in doing so, the
Administrative Law Judge also established the "underpinning" of the
General Counsel's case, which my colleagues find lacking. Specifically, in
noting the General Counsel had failed to prove a secondary object toward
Wright, my colleagues find the record shows only that the object of the
discipline against Wright was to keep him from working for a nonunion
employer. While in other situations such discipline rmght be permissible,
here, I note Typemen was a nonunion employer solely because the Union
itself would not enter a contract with Typemen, and the Union would not do
so solely because it doubted Typemen's independence from Artintype.
However, by finding the two not to be "allies," the Administrative Law
Judge has also effectively found that a fine, premised ultimately on the
conclusion the two were allies, is an illegal fine. Thus, since this was one of
the grounds for the fine, the fine was illegal.
My colleagues' response in fn. 4 of their Decision is no response at all.
While again professing that the General Counsel has not established by a
preponderance of the evidence an illegal object in the fine, my colleagues
continue to ignore the fact that it is they who have created a reason for the
Union's fine, i.e., an alleged dispute with Typemen that the Union itself
never raised to us as the reason for its action. Moreover, to the extent such a
reason should be considered, I again repeat that, by the Administrative Law
Judge's finding no ally relationship here, one of the offered reasons for the
Union's fine, i.e., Wright's working for a nonunion shop, becomes illegal for
those reasons I have noted in the above paragraph of this footnote.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce Typemen, Inc.,
in the selection of representatives for the purpose
of collective bargaining or the adjustment of
grievances by fining, expelling, otherwise discip-
lining, or attempting in any manner to collect or
enforce fines or discipline heretofore imposed
against any such representative, including Charles
Munchgesang, who performed substantially only
supervisory functions for Typemen, Inc.
WE WILL notify Charles Munchgesang that we
have canceled the fine imposed upon him and his
expulsion from membership.
NEW YORK
TYPOGRAPHICAL UNION
No. 6
DECISION
STATEMENT OF THE CASE
JOHN P. voN ROHR, Administrative Law Judge: Upon a
charge filed on March 17, 1975, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 2 (New York, New York), issued an amended
complaint on July 2, 1975, against New York Typographi-
cal Union No. 6, herein called the Respondent or the
Union, alleging that it had engaged in certain unfair labor
practices in violation of Section 8(b)(I)(A) and (B) of the
National Labor Relations Act, as amended. The Respon-
dent filed an answer denying the allegations of unlawful
conduct alleged in the complaint.
Pursuant to notice, a hearing was held before me in New
York, New York, on October 2, 3, and 21, 1975.
Memoranda briefs were received from the General Counsel
and the Respondent on November 24, 1975, and they have
been carefully considered.
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Typemen, Inc., is a New York corporation maintaining
its office and place of business at 228 East 45th Street, New
York, New York, where it is engaged in performing photo
typography services and related services. During the year
prior to the hearing herein, it purchased goods and
materials valued in excess of $50,000 from points and
places located outside the State of New York. The parties
concede, and I find, that Typemen, Inc., is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
New York Typographical Union No. 6 is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
During the period material hereto, Salvatore Wright was
engaged as an employee of Typemen, Inc., and Charles
Munchgesang was engaged by the same employer as night-
shift foreman. Pursuant to union charges filed against
888
NEW YORK TYPOGRAPHICAL UNION
Wright and Munchgesang on July 2, 1974, these individu-
als were each fined $5,000 by Respondent and expelled
from Respondent's membership, allegedly because they
had violated article IV, section 16 - Book of Laws of the
International Typographical Union, for crossing a picket
line and also of article II, section 3, of Respondent's bylaws
for working in a nonunion shop. The complaint alleges
that, under the circumstances hereinafter described, Re-
spondent by the foregoing conduct violated Section
8(b)(1XA) and (B) of the Act. It may be noted here that the
cases of Wright and Munchgesang differ in material
respect and that the General Counsel has a different theory
as to each. The specific theories will be explicated later in
this Decision.
Respondent defends principally on the ground that at the
times material hereto it had a labor dispute with an
employer named Artintype and that Typemen was an ally
of Artintype.
B. The Facts
i. Employer history and events prior to a strike
against Artintype
As above noted, the principal employers involved in this
dispute are Typemen, Inc., herein called Typemen, and
Artintype-Metro, herein called Artintype. It is first of all
relevant to note the background of these employers and the
principal individuals involved.
Two companies, namely, Metro Typographers and
Gould Typographers, merged into a single company
known as Metro-Gould in 1975. At the time of this merger
Seymour Gould was the principal of Gould-Typographers
and Moe Leinoff was the principal of Metro Typographers.
In the spring of 1973, Artintype was formed after a merger
between it and Metro-Gould. Seymour Gould at that time
became the principal officer of Artintype, which at that
time started in business on premises located at 27 West
45th Street, New York City, which were formerly occupied
by Metro-Gould.
At the time of the Metro-Gould merger, Gould Typogra-
phers was a so-called hot metal shop, this meaning that all
typesetting was done with hot metal on a linotype.
Although Metro Typographers was principally also a hot
metal shop, it additionally had a small photocomposition
unit. Briefly stated, photocomposition is a process whereby
type is set from photographs. Artintype continued to
engage in the photocomposition work after its formation.
Both Metro Typographers and Gould Typographers
were parties to collective-bargaining agreements with
Respondent Union, with termination dates of October 3,
1973. This contractual relationship continued after the
formation of Artintype.l
I The testimony in the record is somewhat confusing as to the history of
the merger as thus far set forth. However, since these matters do not appear
to be in dispute, I have borrowed freely from Respondent's bnef in setting
forth these facts.
2 Murray Itkowitz. a Respondent business representative, was present
with Cohen. at the meeting, which included participation by Bert Powers,
Respondent's president. Itkowitz testified that the second meeting occurred
on June I. 1973. which was after Typemen opened, and at this time Cohen
produced no further proof of ownership other than a certificate of
incorporation. Assuming that a meeting was held as late as this date, I do
Sheldon Cohen, the president of Typemen, was em-
ployed by Metro-Gould as an alpha-type machine operator
in the photocomposition unit from the spring of 1972 to the
spring of 1973. Cohen at this time had been a longstanding
friend of Seymour Gould, then a principal of Metro-Gould.
Cohen testified that in or about the early part of 1973 he
became aware, from his own observation as well as from
conversations with Gould, that Metro-Gould's photocom-
position department was not operating properly. In this
regard Cohen testified, "There were many priority prob-
lems and technology problems which the company just had
not solved, and their ability to produce was greatly
hampered." Cohen said that at or about the time of the
merger talks between Metro-Gould and Artintype he
became interested in going back into business for himself
(apparently he had his own business previously) and that
he so apprised Gould. According to Cohen, Gould
responded, "Fine, you can count on me as a customer."
Continuing, Cohen testified as follows:
So it was a good arrangement for everybody, I was
going into business again and he was going to get a
dependable source of supply for the products that he
couldn't produce himself.
We arranged for a sale of equipment, not Seymour
and I necessarily, because I didn't have the money to
buy it, but through other parties, through some of the
manufacturers and other parties that I wanted other
equipment from.
I, therefore, managed to get some of the equipment
that had been formerly down in his place, not all of it,
but some of it, some of the equipment.
I bought other additional equipment also to round
out this company, Typemen, that I was opening.
Prior to the opening of Typemen, Cohen met with
Respondent Union's officials to ascertain if he could
operate the new company as a union shop. The latter
indicated that they were suspicious as to whether he would
open the business as an independent contractor or whether
he could be under the control of Seymour Gould. Although
Cohen subsequently presented the union officials with a
certificate of incorporation, they indicated that they wished
additional proof as to the ownership and control of the new
company. It is undisputed that Respondent would not
assent to Typemen becoming a union shop and that at all
times subsequent to commencing business Typemen
operated as a nonunion shop. 2
not deem this a material factor in deciding this case. However, concerning
the reason for not assenting to Cohen's request to open Typemen as a union
shop, Itkowitz testified as follows:
Well, if we allowed Mr. Cohen to have that contract, Metro-Gould
Typographers would lay off seniority people, Mr. Cohen would now
hire who he wants, being he has a contract with the union and separate
shop and the work went from that plant to Mr. Cohen's plant, that way
they would escape the contract obligation of training personnel.
889
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Typemen began operations in March or April 1973, on
the 10th floor of a building located at 228 East 45th Street. 3
At this point Typemen, which then employed only two or
three employees, began, under subcontract, performing
photocomposition work for Artintype which was still
located at 27 West 24th Street. However, over Memorial
Day weekend 1973, Artintype moved to the fourth floor of
the same building (228 E. 45th Street) where Typemen was
located.
Although the evidence reflects, and I find, that Typemen
did perform some photocomposition work for other
companies, the record is clear that by far the greatest
amount of Typemen's photocomposition work came from
Artintype.
Before describing the working arrangement between
Typemen and Artintype, it is relevant to make further note
of the ownership and corporate structure of each of these
employers. As previously indicated, Cohen was the owner
and president of Typemen, whereas Gould and Leinoff
were the principal officers and owners of Artintype. In
short, the evidence reveals that Typemen and Artintype are
separate New York corporations with separate owners,
officers, and stockholders. 4 Cohen testified that the cost of
Typemen's equipment was approximately $100,000, of
which approximately 50 percent was constituted of equip-
ment originally in the possession of Metro-Gould. Accord-
ing to Cohen, this equipment was not sent to Typemen
directly from the premises of Metro-Gould, but was first
redelivered to the hands of the manufacturer. Additionally,
Cohen testified that the purchase of this equipment was
made principally through notes, which he said was a
common procedure in the industry. Although Respondent,
in support of its "ally" defense, appears to question the
good-faith nature of the entire transaction whereby
Typemen acquired this photocomposition equipment from
Metro-Gould, I can only observe that Cohen's testimony of
paying for this equipment by notes is unrefuted and that
there is no evidence that Seymour Gould or Metro-Gould
provided this equipment to Typemen underhandedly or
without due compensation therefor. The record does not,
in my view, provide sufficient basis for drawing any
inference to the contrary.
Artintype had about two or three employees engaged in
photocomposition work at the time it moved to the fourth
floor of the East 45th Street location. As indicated
previously, although these employees continued to perform
this work at Artintype, Artintype at this point had already
started to subcontract photocomposition work to Type-
men. However, in about December 1973, Artintype
reached the decision, which it at the same time implement-
ed, to entirely abandon its photocomposition operations. 5
There is no evidence that any employees were laid off from
Artintype as a result of this decision. In any event,
notwithstanding the cessation of its photocomposition
operations, Artintype continued to have this service
I These premises at one point were leased to Gould Typographers.
However, it appears that Gould relinquished this lease, for the parties
stipulated that Typemen, by Cohen, leased these premises from Beckrose
Estates. an outside landlord.
4 Cohen testified that he and his wife are the sole officers and directors of
Typemen.
Gould testified that this decision was made approximately 6 months
prior to a strike, which commenced on June 3. 1974.
performed for its customers. This was accomplished by
subcontracting this work to other companies. While from
the record it is apparent that the bulk of this work was
contracted to Typemen, Gould testified that Artintype also
subcontracted some of this work to other companies. He
identified the latter as being MKP Composition Shop and
the Head Liners Company.
Although Typemen utilized its own employees in the
performance of the photocomposition work which it
received from Artintype, it is undisputed that some of
Artintype's employees who were familiar with this work
lent close assistance to Typemen in the performance of
these operations. At this time Charles Munchgesang was
employed by Artintype as night superintendent. Munch-
gesang testified that during the period prior to the strike he
would spend about 2 hours a day, sometimes more, going
back and forth from Artintype's fourth floor premises to
the premises of Typemen on the fifth floor. Concerning the
nature of this work, Munchgesang testified, "It was my job
to go up there, pick up the work, deliver the work and pick
it up." George Loft, an Artintype foreman, testified that
from time to time Munchgesang would be on the 10th floor
and ask him to come up and do proofreading. Joseph
Colletti, also an Artintype employee, testified that prior to
the strike he would be called up to Typemen's premises to
operate the alpha type, a word-setting machine. Colletti
also testified that "on occasion" but "not very often" he
would see Gould on the 10th floor. He said that on those
occasions Gould "was always directing." Gould testified
that he was "up there occasionally" at which times he
would speak to Cohen or to the Artintype employees
concerning "how I wanted my jobs done." However,
Gould also testified, and I find credibly so, that he was
there only in reference to jobs that Artintype gave to
Typemen and that he never gave instructions or directions
to the rank-and-file employees of Typemen as to how they
should perform their work.6
Concerning all the foregoing, it is undisputed that the
Artintype employees were always paid by Artintype,
including whatever time they spent on Typemen's 10th
floor premises.
A change in the managerial structure of Typemen
occurred in January or February 1974, at which time
Cohen left Typemen and went with a new company called
Typosium, which was located about five or six blocks from
Typemen. Cohen testified that he "put the new company
together," that he was "part owner" of it, and that he
became affiliated with it as general manager. Replacing
Cohen at this time, the new president and chief executive
officer of Typemen became Ed Malecki. Malecki was a
salaried and commission salesman employed by Artintype
at the time he was designated president by Cohen. Gould
testified that Malecki was taken off salary when he became
president of Typemen, but that subsequent thereto he
6 Concerning all the above, it is noteworthy that Joseph Colletti, an
Artintype employee, testified that on occasion he would go to other hot
metal companies who performed hot metal work for Artintype (under
subcontract) and that on such occasions he would operate linotype
machines on the premises of these companies.
890
NEW YORK TYPOGRAPHICAL UNION
performed free-lance work and on that basis continued to
receive commissions from Artintype.7
Further changes in the supervisory structure of Typemen
occurred at or about the time Respondent engaged in a
strike against Artintype. These and other events are noted
in the succeeding section.
2. The strike against Artintype; Typemen hires
Munchgesang and Wright
Following unsuccessful negotiations on terms of a new
contract (the latest contract between the parties expired on
October 3, 1973), the Union commenced a strike against
Artintype on June 3, 1974. This strike continued as of the
time of the hearing herein.
Cohen left Typosium and returned to resume an active
role as principal of Typemen at the outset of the strike
against Artintype. On the day after the strike began, June
4, 1974, Cohen hired Salvatore Wright and Charles
Munchgesang to work for Typemen. As previously noted,
up until the time of the strike Munchgesang had been
employed by Artintype as night foreman for approximately
2 years. Until the time of the strike, Wright had been
employed with Artintype as a working foreman since about
latter April 1973. 8 Munchgesang and Wright were mem-
bers of Respondent Union while employed by Artintype,
as they apparently had been for many years prior thereto.
They did not relinquish their membership upon becoming
employed by Typemen.
Cohen returned to Typosium about a week after hiring
Wright and Munchgesang. However, in August 1974, he
came back to Typemen and again resumed the presidency,
a position which he holds at the present time. About the
middle of August 1974, Typemen moved from the 10th
floor to the 4th floor where it occupies offices and premises
adjacent to Artintype.
C. Additional Facts,; Conclusions as to
Munchgesang
Charles Munchgesang commenced his employment with
Typemen on June 4, 1974, as the night-shift foreman and
remained in that position at all times material hereto. Since
the date of his hire, Munchgesang, in order to perform
work for Typemen, on numerous occasions crossed a
picket line which Respondent had established at 228 East
45th Street in furtherance of its labor dispute with
Artintype.
On June 24, Murray Itkowitz, Respondent's business
representative, filed charges against Munchgesang and
Salvatore Wright, alleging that each of them violated
article IV, section 16 - Book of Laws of the International
Typographical Union, for crossing a picket line, and also of
article II, section 3 of Respondent's bylaws for working for
Typemen, a nonunion shop.
On July 2, 1974, Munchgesang and Wright were notified
by Bertram Powers, Respondent's president, that the
above-noted charges were being presented to the Union as
7 According to the unrefuted testimony of Cohen. Malecki never held
any ownership interest in Typemen. He said the supervision of the shop
employees was performed by one Sonny, with Malecki only in charge of the
office functions. Malecki had no part in determining such matters as the
employees' wage scale or the Company's personnel policies.
of September 22, 1974. On October 31, 1974, Respondent
notified these individuals that the charges had been found
cognizable and that a trial committee had been appointed
to hear the charges; and on November 13, 1974, they were
notified by Respondent that the trial committee would
recommend that each be fined $5,000 and expelled from
Respondent's membership. Finally, on November 21, 1974,
Munchgesang and Wright were notified that Respondent
concurred with the trial committee's recommendation and
that each was fined $5,000 and expelled from union
membership.
The complaint alleges that Respondent, by the foregoing
action, with respect to Munchgesang, violated Section
8(b)(IXB) of the Act which prohibits a union from
restraining or coercing an employer "in the selection of his
representative for the purposes of collective bargaining or
the adjustment of grievances." In view of the Board's
decision in Chicago Typographical Union No. 16 (Hammond
Publishers, Inc.), 216 NLRB 903 (1975), upon which the
General Counsel relies, I agree that the Act has been
violated, as alleged in the complaint. Thus, in the instant
case it was stipulated not only that Munchgesang was a
supervisor within the meaning of the Act, but also that he
was empowered to adjust grievances on behalf of Type-
men, his employer. Munchgesang credibly testified that 90
percent of his time was spent performing supervisory
functions, the remaining 10 percent in the performance of
production work. Assuming arguendo that Typemen during
the relevant period was engaged in the performance of
struck work, I find that Munchgesang was engaged in a
"minimal amount" of any such alleged rank-and-file struck
work. Pertinent to a situation of this type, the Board in the
Chicago Typographical case stated as follows:
The instant case, in contrast to these extreme
situations, presents a factual setting where the disci-
plined supervisors performed not only supervisory
duties (including grievance adjusting) but also, at least
arguably, a minimal amount of rank-and-file struck
work during the work stoppage. We believe that the
Respondent's acts of discipline in the instant case
violated Section 8(bXIXB) notwithstanding the fact
that Palmer and Andress may have performed a
minimal amount of rank-and-file struck work. This
follows, we feel, since under our view of Florida Power
it makes no difference whether a supervisor performs a
minimal amount of struck work because it is still
reasonably likely that an adverse effect may carry over
to the supervisor's performance of his 8(b)(1)(B) duties
when he is disciplined after having performed substan-
tially only supervisory functions and only a minimal
amount of what might arguably be called rank-and-file
struck work during a work stoppage. [Footnote omit-
ted.]
Accordingly, and for the reasons further explicated by
the Board in the aforesaid case, I find that Respondent, by
fining Munchgesang the sum of $5,000 and by expelling
Wnright. who said he knew Cohen for about 15 years. was previously
employed by Metro-Gould. He was laid off from that company in late
March 1973 and began his employment with Artintype 2 or 3 weeks later.
891
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him from its membership, violated Section 8(b)(1)(A) of the
Act.9
D. Conclusions as to Wright
Unlike Munchgesang who was hired on June 4, 1974, as
a supervisor, Salvatore Wright was hired by Typemen on
the same date as a rank-and-file production employee. As
set forth in detail in the preceding section, Respondent
took identical disciplinary action against Wright, and for
the same reasons, as it did against Munchgesang. As thus
noted, this began with charges filed against him on July 2,
1974, and culminated on November 21, 1974, when
Respondent expelled him from membership and imposed a
fine against him in the sum of $5,000. Although sometime
later in July 1974 Wright was promoted to the rank of
foreman with Typemen, it is undisputed that he was
engaged by Typemen as an ordinary employee at the time
of the filing of the charges against him on July 2, 1974,
which led to the disciplinary action as aforenoted.
The General Counsel's theory as to Wright, which
necessarily must be different from that of Munchgesang, is
stated in his brief as follows:
With respect to the Union's disciplinary actions against
Salvatore Wright, the General Counsel contends that
the union violated Section 8(b)(1)(A) of the Act by
imposing disciplinary action against an employee-mem-
ber for failing to conform to union conduct which itself
would be violative of the Act and accordingly, contrary
to public policy. That is, the union fined and expelled
Wright because he worked at Typemen. It is clear that
the union thereby sought to induce Wright, an
individual, to withhold his services from a person
(Typemen), for an object of forcing or requiring that
person to cease doing business with Artintype-Metro,
the employer with whom the union has a dispute. In
short, it is our view that the union disciplined Wright
because Wright refused to be a party to secondary
boycott. That a union may not discipline employees for
objects which are illegal or contrary to public policy
was made clear by the Board in Local 1101 Communica-
tion Workers of America, AFL-CIO (New York Tele-
phone Company), 208 NLRB 32 (1974).
Denying that it engaged in conduct which could be
construed as unlawful or secondary action against Type-
men, Respondent asserts that Typemen is an ally of
Artintype and that it therefore is not within the protection
of the secondary provisions of the Act. If this position were
to be upheld, it would of course follow that Respondent's
disciplinary actions against Wright would not, in light of
the General Counsel's theory, be unlawful under the Act.
The leading case on the ally doctrine is N.L.R.B. v.
Business Machine and Office Appliance Mechanics Confer-
ence Board, Local 459, International Union of Electrical,
Radio & Machine Workers, CIO (Royal Typewriter Co.), 228
F.2d 553 (C.A. 2, 1955), wherein the court in pertinent part
stated as follows:
9 See also International Brotherhood of Electrical Workers, AFL-CIO,
Local Union 901 (Ernest P. Breaux Electrical Company, Inc.), 220 NLRB
1236 (1975): The Newspaper Guild, Erie Newspaper Guild, Local 187, AFL-
CIO (Times Publishing Company), 222 NLRB 760 (1976).
. . . an employer is not within the protection of
Section 8(bX4)(A) [now Section 8(bX4XB)] when he
knowingly does work which would otherwise be done
by the striking employee of the primary employer and
where this work is paid for by the primary employer
pursuant to an arrangement devised and originated by
him to enable him to meet his contractual obligations.
Under a literal interpretation of the above doctrine, it is
apparent that Typemen cannot be held to be an ally of
Artintype, for here it is undisputed that at a time 5 or 6
months prior to the strike Artintype completely closed
down the photocomposition work which it largely subcon-
tracted to Typemen. Accordingly, inasmuch as Artintype's
employees were not engaged in the performance of this
work at the time of the strike, it is clear that this is not a
case where "but for" the strike the work would have been
performed by Artintype's employees and, conversely,
would not have been subcontracted to Typemen.
The Respondent, however, contends that, long prior to
the strike, Gould and Cohen "had collaborated on a
scheme that would resolve Artintype's dispute with the
Union," and that "Artintype set Typemen up as a dummy
corporation which it effectively controlled and whose labor
relations policy it dictated." The reason for all this was,
according to Respondent, that long prior to the strike (i.e.,
shortly after the merger with Metro-Gould) Artintype was
engaged in a dispute with the Union over problems relating
to the training of hot metal employees in the photocompo-
sition process, their competency to perform such work, and
the priority rights of employees in the merged shop.1 0
Upon consideration of the entire record in this case, I am
impelled to conclude that Respondent's "ally" defense is of
no merit. In the first place, and while it is true that
Artintype undoubtedly did have problems with the Union
relative to the above-noted photocomposition work, the
record in my opinion fails to establish that as of the time
Typemen was organized as a business, this dispute was of
such a grave nature that Gould (as principal of Artintype)
would deliberately engage in a scheme to set up Typemen
as a dummy corporation (as Respondent contends) with a
view to avoiding its obligations to the Union. Thus, it will
be recalled that Typemen commenced operations in or
about March or April 1973; Artintype's contract with
Respondent Union did not expire until October 3, 1974;
and bargaining negotiations between Artintype and Re-
spondent continued to June 3, 1974. Although Artintype
undoubtedly engaged in hard bargaining, there is nothing
in this record for me to infer that throughout this period
Artintype was not bargaining in good faith over the terms
of a contract, including any provisions relative to photo-
composition work. In short, whatever dispute Artintype
had with Respondent over the latter work, this record does
not warrant a finding that this led Artintype into setting up
Typemen as a "dummy" corporation over a year prior to
the expiration of contract negotiations.
Secondly, and notwithstanding that the majority of
Typemen's work is subcontracted to it by Artintype, the
'o Gould conceded that he and the Union had differences over these
matters during contract negotiations.
892
NEW YORK TYPOGRAPHICAL UNION
fact remains that each is a separate corporation, with
separate owners, officers, and stockholders. Indeed, Gould
testified without contradiction that other than subcontract-
ing work to Typemen, neither he nor Artintype provided
Cohen or Typemen with any machinery, money, capital
equipment, or anything of value. Similarly, Cohen testified
without contradiction that the financing of Typemen was
accomplished all but entirely through notes. Further, there
is nothing in the record to support Respondent's conten-
tion that the principals of Artintype exercise control over
the affairs of Typemen, particularly the latter's labor or
personnel relations. Accordingly, I find all the foregoing a
further basis for finding that Typemen and Artintype were
not allied employers in the performance of the work in
question.
Finally, I think it appropriate to comment upon a case
decided by the Board subsequent to the hearing and the
filing of briefs herein, namely, Graphic Arts International
Union, A FL-CIO, and Local 277, Graphic Arts International
Union, AFL-CIO (S & M Rotogravure Service, Inc.) (Kable
Printing Company), 222 NLRB 280 (1976). Briefly, in that
case a majority of the Board found an allied relationship to
exist between two employers notwithstanding the fact that
the primary employer, subsequent to a strike, decided to
discontinue certain rotogravure operations and thereafter
made arrangements to have this work perfomed by other
printing shops. As a basis for invoking the allied doctrine,
the Board relied on the fact that, subsequent to the latter
decision and arrangement, the employer still retained
certain equipment involved in the performance of the
discontinued operations; and this, the Board held, was
indicative that the decision to discontinue the operations in
question was not irrevocable. "In cases such as the instant
one," the Board stated, "the more important consideration
is not the announcement of an intention to terminate
operations, but its accomplishment."
I find Graphic Arts, supra, not to be controlling here.
Thus, and without dwelling upon the matter further, the
instant case is factually distinguishable in that the evidence
in this case establishes that Artintype effectively accom-
plished the discontinuance of its photocomposition approx-
imately 5 months prior to the strike. Unlike Graphic Arts,
the testimony is that at that time Artintype disposed of all
the equipment and machinery which it utilized in the
performance of these operations. There is no evidence to
the contrary.
In sum, I find that Respondent's conduct in fining and
expelling Wright was designed to induce this employee to
withhold his services from Typemen for an object of
forcing or requiring Typemen to cease doing business with
Artintype, the primary employer. In view of this objective,
I agree with the General Counsel, and find, that Respon-
dent's disciplinary action against Wright, as aforesaid, was
taken because Wright refused to be a party to a secondary
boycott. By fining Wright, an employee, for not engaging
in unprotected activity, I find that Respondent violated
Section 8(bX1IXA) of the Act. Local 1101 Communication
Workers of America, AFL-CIO (New York Telephone
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and the recommended Order herein shall. as provided in Sec.
Company), 208 NLRB 267 (1974); Local 1104, Communica-
tion Workers of America, AFL-CIO (New York Telephone
Company), 211 NLRB 114(1974).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II1,
above, occurring in connection with the operations of the
employer described in section I, above, have a close,
intimate, and substantial relationship 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
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(bXl)(A) and (B) of
the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Typemen, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent, New York Typographical Union
No. 6, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(bX)(IXA) and (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
On the basis of the above findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I issue the following recommended:
ORDER I
The Respondent, New York Typographical Union No. 6,
its officers, agents, and representatives, shall:
I. Cease and desist from:
(a) Restraining or coercing Typemen, Inc., in the
selection of representatives for the purpose of collective
bargaining or the adjustment of grievances by fining,
expelling, otherwise disciplining, or attempting by any
means to collect or enforce any fine or discipline imposed
against any such representative, including Charles Munch-
gesang, who performed substantially only supervisory
functions for Typemen, Inc.
(b) Restraining or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act by imposing
fines upon employees and expelling them from member-
ship because they refused to engage in a strike where the
object was to force or require Typemen to cease doing
business with Artintype.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
893
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Rescind and expunge all records of the fines and
expulsion levied against Charles Munchgesang and Salva-
tore Wright on or about November 21, 1974.
(b) Advise Charles Munchgesang and Salvatore Wright,
in writing, that the said fines and expulsions have been
rescinded and that the records of such fines and expulsion
have been expunged.
(c) Post at its business office and meeting hall copies of
the attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
Region 2, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Furnish the Regional Director for Region 2 with
signed copies of said notice for posting by Typemen, Inc.,
including all places where notices to employees are
customarily posted.
(e) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
894