Rockaway News Supply Co., Inc.

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By discriminating in regard to the hire and tenure of employment of rco Burt and Joe Elmore Harris, thereby discouraging membership in a labor organ- ization the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (3) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] ROCKAWAY NEWS SUPPLY COMPANY, INC. and CHARLES WAUOIH. Case No. 2-CA-1342. July 20, 1951 Decision and Order On February 21, 1951, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions, and the General Counsel and Waugh, the charging party, filed briefs in support of the Intermediate Report. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions, modifications, and additions set forth below: 1. On March 7, 1950, the Respondent discharged Charles Waugh, a member of the Newspaper and Mail Deliverers' Union, hereinafter called the Union, which was the contractual representative of the Re- spondent's employees, because of his refusal, in the course of his duties, to cross a picket line established at the premises of the Nassau Daily Review Star by the Nassau County Typographical Union #915 (AFL), hereinafter called the Typographers. The Trial Examiner found that the Respondent thereby violated Section 8 (a) (3) and (1) of the Act. We agree. The Respondent urges that Waugh's refusal to cross the picket line violated the no-strike clause of its agreement with the Union 1 and I Sec. 19-n of the contract provides that "No strikes , lockouts or other cessation of work or interference therewith shall be ordered or sanctioned by any party hereto during the term hereof except as against a party failing to comply with a decision , award or order of the Adjustment Board." 95 NLRB No. 50. ROCKAWAY NEWS SUPPLY COMPANY, INC. 337 that his discharge was therefore not protected by the Act. In Rock- away News Supply Comnpany, Inc.,2 the Board found the identical contract involved herein to be illegal in its entirety and set it aside. it would not effectuate the policies of the Act to give effect in this case to a contract which the Board set aside in its entirety in a prior pro- ceeding. Accordingly, the no-strike clause of that contract can have no impact upon Waugh's refusal to cross the picket line.3 The Respondent contends, however, that apart from the question of the validity of the contract, Waugh's conduct constituted a "partial strike" not protected by the Act. We do not agree. The record is clear that Waugh's failure to perform part of his duties was not occasioned by an insubordinate refusal to perform work tasks as- signed to him by the Respondent, an unwillingness to comply with its rules, or a desire unilaterally to impose or to alter his own terms and conditions of employment while remaining at work. In Cyril de Cordova d Bro.,' the Board found that an employee's failure to per- form part of his duties by reason of his refusal to cross a lawful picket line at the.plant of an. employer other than his own was a protected form of concerted activity. Accordingly, for the reasons set forth in that case, we find this contention of the Respondent to be without merit. Although Waugh's refusal to cross the picket line was a protected activity, the Respondent, as a normal incident of its right to maintain its operations, could have required Waugh to elect whether to perform all his duties or, as a striker, to vacate his job and make way for his replacement by the Respondent.5 Instead the Respondent discharged Waugh.6 The Respondent seeks to distinguish the instant case from the de Cordova case on the ground that Waugh was not, as was the employee involved in that case, a member of the union conducting the picketing. We do not.regard this distinction as determinative.' The fact that employees who participate in concerted activities are not members of the same union, or indeed of any union, or employees of the same 2 94 NLRB 1056. 3 As the Board in the earlier Rockaway case, supra, set the entire contract aside, we regard as immaterial the fact that , as asserted by the Respondent , the contract provided for the severability of any portion thereof found to be Illegal. 49. I NLRB 1121. 0 Pinaud, Incorporated, 51 NLRB 235 ; Gardner-Denver Company , 58 NLRB 81. 6 The record shows that after his discharge on March 7 , Waugh returned the following day seeking to be rehired , but the Respondent told him , "You know I can't hire you. You're fired." Thereafter Waugh sought reemployment daily for a period of about 3 weeks but was told by the Respondent that it could not hire him . The record does not indicate, however, whether Waugh was willing to cross the picket line, if necessary, or whether he had been permanently replaced by the Respondent. T The Intermediate Report in the de Cordova case stated : "Finn [the discharged employee ] had,a substantial and legitimate interest in the successful prosecution of the strike against the Exchange, not only because of his union membership, but also because of the reciprocal effect Improved conditions in neighboring and associated business of like loud might have on his own future conditions of employment." (Emphasis added.) 338 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD employer, does not alter the concerted nature of such activity or.de- prive it of the protection accorded such activity by the Acts .In re- fusing to cross the Typographers' picket line Waugh was making com- mon cause and acting in concert with the Typographers. 2. We do not adopt the Trial Examiner's finding that the discharge of Waugh by the Respondent.was a continuation of unlawful support x endered to the Newspaper and Mail Deliverers' Union to encourage membership in that organization, as' no such violation was alleged or litigated.' Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Rockaway News Supply Company, Inc., Valley Stream, Nassau County, New York, its officers, agents, successors, and assigns shall : _ 1. Cease and desist from : (a) Interfering with, restraining, or coercing its employees in the exercise of their right to assist Nassau County Typographical Union #915 (AFL), or any other labor organization, and to engage in con-' certed activities for the purpose of mutual aid and protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. (b) Discouraging activity on behalf of and membership in Nassau County Typographical Union #915 (AFL), or any other labor or- ganization, by in any manner discriminating in regard to the hire or tenure of employment, or any term or condition of employment, of its employees. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act : (a) Offer to Charles Waugh immediate and full reinstatement to his former position, or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges. (b) Make whole Charles Waugh for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, in the manner set forth in section V of the Intermediate Report, entitled "The Remedy." 8 J. G. Boswell Co., 136 F. 2d 585, 596 (C. A. 9) ; N. L. it. B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F. 2d 503 (C. A. 2) ; Fort Wayne Corrugated Paper Co. v. N. L. R. B., 111 F. 2d 869, 874. 9 We note, however, our finding in the earlier Rockaway case, supra, that the Respondent had unlawfully lent its support to the Newspaper and Mail Deliverers' Union in violation of Section 8 (a) (2) of the Act. ROCKAWAY NEWS SUPPLY COMPANY, INC. 339 (c) Upon request, make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and re- ports, and all other records necessary to analyze and compute the amount of back pay due and the right of reinstatement under the terms of this Order. (d) Post immediately at its places of business at 518 Rockaway Avenue in Valley Stream, Nassau County, New York, and at 45-35 36th Street, Long Island City, Queens County, New York, copies of the notice attached hereto, marked "Appendix A." 10 Copies of such notice, to be furnished by the Regional Director for the Second Region, after being duly signed by the Respondent's representative, shall be posted by the. Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Second Region (New York City) in writing within ten (10) days from the date of this. Order, what steps the Respondent has taken to comply therewith. MEMBER STYLES took no part in the consideration of the above De- cision and Order.' 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, we hereby notify our employees that:. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to assist NASSAU COUNTY TYPO- GRAPHICAL UNION #915 (AFL), or any other labor organization, and to engage in concerted activities for the purpose of mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL NOT discourage activity on behalf of and membership in NASSAU COUNTY TYPOGRAPHICAL UNION #915 (AFL), or any " In the event that this order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words , "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." 961974-52-vol. 95-23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other labor organization, by discriminating in any manner with regard to the hire and tenure of 'employment of our employees, or any term or condition of employment. WE WILL offer Charles Waugh immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges pre- viously enjoyed, and make him whole for any loss of pay suffered as a result of our discrimination against him. WE WILL NOT discriminate in regard to hire or tenure of em- ployment or any term or condition of employment against any employee because of activity on behalf of any such labor or- ganization. All our employees are free to assist or refrain from assisting the above-named union or any other labor organization except to the ex- tent' that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act, as amended. ROCxAWAY NEws SUPPLY COMPANY, INC., Employer. By --------------------------------------------- (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date- hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon a charge filed by Charles Waugh, herein called the Charging Party, on April 7, 1950, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Second Region ( New York, New York ), issued a complaint dated November 8, 1950, against Rockaway News Supply Company, Inc., herein called the Respondent, alleging that the Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and ( 7) of the National Labor Relations Act, as amended ( 61 Stat. 136 ), herein called the Act. With respect to the unfair labor practices , the complaint alleges in substance that the Respondent, on or about March 7, 1950, discharged Charles Waugh, and thereafter failed and refused to reinstate him, for the reason that lie refused to cross a picket line maintained by the Nassau County Typographical Union #915 (A)FL), herein called the Typographical Union, and thereby engaged in concerted activities with other employees for the purpose of mutual aid or protection. Copies of the complaint, charge, and a notice of hearing thereon, were duly served upon the Respondent and Charles Waugh. Thereafter the Respondent. filed an answer to the complaint , admitting the discharge and refusal to reinstate Charles Waugh, but denied that such action ,A; ' For identification separately called herein the General Counsel and the Board. ROCKAWAY NEWS SUPPLY COMPANY, INC. 341 constituted unfair labor practices. As an affirmative defense, the Respondent alleges in substance that pursuant to a collective bargaining agreement entered into by and between the Newspaper and Mail Deliverers' Union of New York and Vicinity and the Respondent, the adjustment board, therein constituted, found that Waugh was discharged for cause ; and that by virtue of the collective bargaining agreement, the National Labor Relations Board is barred from ordering the reinstatement of the Charging Party. Pursuant to notice, a hearing was held at New York, New York, on December 1, 1950, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. All parties were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues involved. Ruling on a motion by the General Counsel to strike the affirmative defense wag reserved. Motion by the Respondent to dismiss the complaint for failure to state a cause of action was denied. Motion by the Respondent to exclude individual counsel of the Charging Party from participation in the hearing was denied under Section 203.38 of the Board's Rules and Regulations, Series 5. Motion by the Respondent to dismiss when the General Counsel rested was denied with leave to, renew at the close of all the evidence. Upon renewal of the motion, ruling there- on was reserved, and is now denied. Motion by the General Counsel to conform the pleadings to the proof was granted without objection. Opportunity was afforded all parties to argue orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. Briefs received from the General Counsel, counsel for the Charging Party, and the Respondent have been given due consideration. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS Or FACT I. THE BUSINESS OF THE RESPONDENT Rockaway News Supply Company, Inc., is a corporation organized and existing by virtue of the laws of the State of New York with its principal office and place of business located at 518 Rockaway Avenue, Valley Stream, Nassau County, New York. It also maintains a place of business at 45-35 36th Street, Long Island! City, Queens County, New York. At all times herein concerned, it was engaged in and continues to engage in the sale, distribution, and delivery of newspapers, magazines, periodicals, and other publications to stores, newsdealers, and other retail distributors, pursuant to consignment contracts with the publishers. Pursuant to exclusive publisher franchises for their distribution in several coun- ties in Long Island, New York, it has delivered and continues to deliver such newspapers as the New York Times, New York Herald Tribune, New York World- Telegram and Sun, New York Post, New York Mirror, and New York Journal- American, which are recognized channels and instrumentalities of interstate commerce, and utilize the facilities of one or more interstate and world-wide wire services, such as the Associated Press, the United Press, and the International News Service. During the past year, the publisher of each of the above-named newspapers caused to be shipped in interstate commerce from its respective New York plants to States of the United States outside of New York, newspapers valued in excess of $25,000. In the course and conduct of its business during the same period, the Respondent transported approximately 35 percent of the newspapers it handled from their places of publication in New York, New York, to its places of business 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and to the retailers by whom they were sold. During the same period the Re- spondent returned magazines valued in excess of $25,000 to publishers located outside the State of New York by shipment in interstate commerce. During the past year in the course and conduct of its business, the Respondent performed services valued in excess of $50,000 in the distribution of the aforesaid publications. It is found, therefore, and the Respondent concedes, that Rockaway News Supply Company, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Newspaper and Mail Deliverers' Union, and Nassau County Typographical Union #915 (AFL) are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Historical background For approximately 7 years prior to 1950, Charles Waugh was employed by the Respondent as a chauffeur and routeman. By reason of seniority he was classi- fied as a regular situation holder.. He was a member of the Newspaper and Mail . Deliverers' Union of New York and Vicinity, which for a period of years had been contractually recognized by the Respondent, without the formality of an election, as the exclusive bargaining representative of its employees. At the time of his discharge, Waugh was assigned to a regular route, and worked 5 days a week (Tuesdays through Saturdays) from 9: 45 a. m. to 6: 30 D. m. As a routeman, it was his duty to pick up and deliver various newspapers, magazines, and periodicals along a scheduled route, including the Nassau Daily Review Star, herein sometimes called the Review Star. This newspaper was published by The Daily Review Corporation, Rockville Center, Long Island, New York, and customarily came off the press at 10 a. m. Prior to 10: 30 a. m. on each working day, except Saturdays, Waugh picked up a supply of this newspaper at the premises in Rockville Center, and proceeded on his usual route with pickups and deliveries. The pickup operation of the Review Star at Rockville Center consumed approximately 10 or 15 minutes each day. B. Events leading to Waugh's discharge On the morning of March 2, 1950, Waugh discovered that the Typographical Union, of which he was not a member, had established pickets before the premises of the Review Star, which prevented a pickup of that newspaper unless he passed through the picket line. First assuring himself by conference with John J, Byrnes, vice president of the Typographical Union, that the picketing had been ordered and approved by that labor organization in connection with a labor dispute, Waugh notified his foreman (William Gordon) that because he was himself a union man, he would not cross the picket line of another union, and thereby become a "scab" or strikebreaker. Gordon replied : "Charlie, I wouldn't take that attitude. It might mean your job." Waugh, nevertheless, insisted that he would not do harm to another union, and requested that some arrangement be made to have the newspapers delivered to him beyond the picket line so that'union men would not be required to cross it. It is clear that Waugh was willing to continue in the performance of all his duties, provided he was not required to cross the picket line. Such an arrangement was made by the Respondent on Thursday and Friday of that week, but on Tuesday, March 7, ROCKAWAY NEWS SUPPLY COMPANY, INC. 343 1950, Foreman Gordon said to Waugh, "The Management wants you to cross that picket line. . . . I order you to cross the Nassau Daily Review Star picket line up there and draw papers. . . . Otherwise you are fired ; if you refuse, you are fired." Thereupon, Waugh left Respondent's premises, but returned to the premises each succeeding day for a period of about 3 weeks seeking to be rehired. Gordon told him that he could not give him employment. It appears that other employees of the Respondent did not refuse to pass through the picket line, although they were members of the Newspaper and Mail Deliverers' Union. On March 8 and 9, 1950, pickets of the Typographical Union carried placards containing the following inscription : "Is Waugh the only union mail deliverer?" 2 C. Defenses raised by Respondent seeking to justify discharge for cause It is contended by the Respondent : (1) That Waugh's refusal to cross the picket line of a union of which he was not a member is not protected activity within the meaning of the Act. (2) That Waugh's refusal to obey the order of his foreman and cross the picket line to perform his job was insubordinate conduct and a violation of the so-called "partial strike doctrine." (3) That Waugh's refusal to cross the picket line constituted a breach of con- tract in violation of the "no strike" clause contained in its collective bargaining agreement with the Newspaper and Mail Deliverers' Union of October 25, 1948. (4) That decision and award of the adjustment board in accordance with grievance procedure outlined in the contract is conclusive and binding upon the Charging Party, and is a bar to exercise of jurisdiction by the National Labor Relations Board herein. D. The collective bargaining agreement The Respondent relies upon and is seeking to enforce a collective bargaining agreement dated October 25, 1948. That agreement recognized the Newspaper and Mail Deliverers' Union of New York and Vicinity as exclusive bargaining representative for Respondent's employees, provided procedure for the adjust- ment of grievances by an adjustment board, exclusive of other remedies, and contained a "no strike clause." Pertinent provisions of the contract read, as follows : SECTION'1 1-a. Subject to the provisions hereinafter set. forth, the Employer recog- nizes the Union as the exclusive representative for collective bargaining for all of, its employees who perform all work in the delivery and handling of newspapers, magazines, periodicals, publications and ' merchandise in the operations performed by the following : chauffeurs, distributors, route men, tiers, floor men, wrapper writers and relay men. s SECTION 2 2-a. The Union offers to furnish at all times and at regular time rates as many men as may be required by the Employer, such men to be com- petent and able to perform the particular operation for which they are required. If the Employer requires its regular employees to work in excess 2 Ruling on the admissibility of this evidence was reserved, and it is now admitted. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a fifth shift, overtime at the rate of time and one-half shall be paid for the full shift. 2-b. The Employer agrees to employ only members of the Union thirty days. following the effective date of this agreement, it being understood that any new employees employed after the effective date of this agreement as a regular situation holder be required to become members of the Union thirty (lays following the beginning of employment. 2-c. The parties hereto agree that when a definition or interpretation of the 30 day period has been handed down by law, then such definition or interpretation shall thereafter govern in so far as this contract is concerned. SECTION 3 Mutual Guarantees Because of the enactment of the Labor-Management Relations Act, 1947, this contract differs from its immediate predecessor and from contracts between these parties over a period of many years. Specifically, this agree- ment eliminates closed shop, and references thereto because it no longer is permissible under the federal law. This provision is appended hereto as an appendix to, but not as a part of, this contract. It is understood and agreed, however, for the duration of this contract, that if any provision as shown in the appendix hereto, and as modified from the preceding contract or excluded from this contract solely because of the restrictions of law, no longer is held to be inoperative, either by legislative enactment or by decision of the court of highest recourse, then such provi- sion automatically shall become a part of this contract, to the extent permitted, and be in force and effect as though it had been originally made a part hereof. To the best knowledge and belief of the parties this contract now contains no provision which is contrary to federal or state law or regulation. Should, however, any provision of this agreement, at any time during its life, be in conflict with federal or state law or regulation then such provision shall continue in effect only to the extent permitted. In event of any provision of this agreement thus being held inoperative, the remaining provisions of the agreement shall, nevertheless, remain in full force and effect. It is mutually agreed that the spirit as well as the letter of. this agree- ment is to be observed in full and that neither party will enter into any other agreement which in any way renders impossible or inoperative any pro- vision of this contract. APPENDIX (Section number refers to prior contract) * 2. The Union shall furnish at all times and at regular time rates as many men as may be required by the Wholesaler, such men to be competent and able to perform the particular operation for which they are required. If a Wholesaler requires his regular employees to work in excess of a fifth shift, overtime at the rate of time and one-half shall be paid for the full shift. When the Union fails to furnish such men promptly, the Wholesaler is au- thorized to meet his needs by employing such men as he may be able to obtain ; if the men so employed are not members of the Union they shall be ROCKAWAY NEWS SUPPLY COMPANY, INC. 345 employed only so long as the Union does not furnish members of the Union willing and qualified to take their places, but any man so employed shall be allowed to complete his day's work. Nothing herein contained is to be construed as conferring of power upon Wholesaler to fill a regular situation with anyone not a member of the Union. SECTION 4 The Employer shall have the right to appoint as many foremen and as- sistant foremen as it may see fit and shall have the right of removal. The terms of a foreman or assistant foreman's employment, including hours, wages and other conditions of work, shall be a matter of agreement between the Employer and such foreman or assistant foreman, except that no fore- man or assistant foreman shall be paid less than the basic hourly rate agreed to herein. Present practice may be continued by the Employer as to foreman and assistant foreman performing any of the operations covered in Section 1 herein. Only the foreman or assistant foreman in charge shall be em- powered to execute the provisions, terms and conditions hereof pursuant to the directions of the Employer, to issue orders, to hire or to discharge, and no one except the foreman or assistant in charge shall have the right, in .accordance with such directions , to issue orders and make changes in work- ing conditions. Any employees having a complaint to make with respect to the conduct or orders of a foreman or assistant foreman or with respect to alleged discrimination or other unfair treatment by the foreman or assistant foreman may take tip such complaint with the person designated by the Em- ployer for such purpose through the chapel chairman or other Union repre- sentative, and if such complaint is not satisfactorily disposed of, it may be submitted to the Adjustment Board. The Employer may make complaint that the Union has impropertly imposed penalties upon foreman or assistant fore- man for carrying out the orders or instructions of the Employer and if the complaint be not satisfactorily adjusted, the same may be submitted to the Adjustment Board. * * * * * * * SECTION 12 12-a. The right of the Employer, acting through a foreman or an assistant foreman at any time to discharge any employee for cause is hereby recog- nized. The cause shall be stated at the time of the discharge. The dis- charged employee may, through his Union representative, make complaint with respect to his discharge to the Employer, and if such complaint be not satisfactorily adjusted, it may be submitted to the Adjustment Board. Pending. adjustment and determination of such complaint the discharged employee need not be kept in employment by the Employer. * * * * * * * SECTION 13 Any employee claiming to have been discharged without just cause or otherwise deprived of or injured with respect to any of the rights conferred upon him hereunder may have such claim taken up on his behalf with the Employer through the proper Union representatives, and in the event that 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such claim is not satisfactorily adjusted, the Union may submit the same to the Adjustment Board. r SECTION 19 19-a. There is hereby created an Adjustment Board to function with the powers and duties herein conferred during the term hereof. e 19-n. No strikes, lockouts or other cessation of work or interference therewith shall be ordered or sanctioned by any party hereto during the term hereof except as against a party failing to comply with a decision, award, or order of the Adjustment Board. E. Concluding findings 1. Protected activities except as affected by an agreement authorized in Section 8 (a) (3) of the Act It is of first concern to determine whether Charles Waugh refused.to cross a legitimate picket line. I take judicial notice of a decision of the Board in Nassau County Typographical Union #915 (AFL), 87 NLRB 1263, wherein it was held that said union was on October 22, 1947, and thereafter, the exclusive representative in the appropriate unit of employees of The Daily Review Cor- poration. There is no evidence that it has since lost its majority or been de- certified by the Board. John J. Byrnes, vice president in charge, testified without contradiction that the picket line was established pursuant to a formal resolu- tion of Typographical Union #915 in connection with a labor dispute of long standing. It is, therefore, concluded that the picket line was legitimate. It has long been established by the Board and the courts that refusal to cross a legitimate picket line is a form of protected activity under Section 7 of the Act, and that a discharge therefor is violative of the Act as an unfair labor practice.' The fact that Waugh was not a member of the picketing- union is immaterial.' I do not agree with the contention of the Respondent that Waugh's conduct was illegal under the "partial strike doctrine" enunciated in a list of court decisions cited in its brief. All of those cases hold in substance that employees are not protected by the Act when attempting to accomplish an unlawful objective by unlawful methods, or even a lawful objective by illegal means. While remain- ing on the job, employees may not refuse to perform a part of the allotted task in definance of reasonable instructions from the employer, nor unilaterally pre- scribe the terms upon which they will work. Not so in the present case. Waugh was not seeking an unlawful objective, but was clearly exercising the right of employees to assist a labor organization by utilizing a conventional method, time- honored in the history of the American labor movement. I cannot find from the evidence, as argued in Respondent's brief, that an effort was being made to exert pressure on his own employer to cease dealing with the Review Star; because Waugh was entirely willing to handle the newspapers if delivered to him beyond the picket line. Had he been engaged in a secondary boycott to force his employer a Illinois Bell Telephone Company, 88 NLRB 1171; Cyril de Cordova & Bros., 91 NLRB 1121. 4 Fafnir Bearing Co., 73 NLRB 1008; New York Telephone Company, 89 NLRB 383; N. L. R. B. v. Montag Bro. Inc., 140 F. 2d 730. ROCKAWAY NEWS SUPPLY COMPANY, LTC. 347 to cease dealing in the products of The Daily Review Corporation, protection would in that case be afforded by the proviso of Section 8 (b) (4) of the Act, "That nothing contained in this subsection ( b) shall be construed to make un- lawful a refusal by any person to enter upon the premises of any employer (other than his own employer ), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this Act." It seems to me that Waugh's being the only employee of the Respondent who refused to cross the picket line has no :significance, since the rights under Section 7 of the Act may be exercised either individually or collectively. I find, therefore, that Waugh's refusal to cross the picket line of the Typo- graphical Union was protected activity except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a. condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Effect of the agreement of October 25, 1948 The Respondent recognized- the Newspaper and Mail Deliverers' Union as exclusive bargaining representative of its employees without the formality of an election. Such recognition was not in itself illegal, but all employers are precluded by the Act from entering into a contract containing the union-security provision which required as a condition of employment membership in the Newspaper and Mail Deliverers' Union on or after the thirtieth day following the effective date of said agreement. A contract with a labor organization, containing the aforesaid provision, is valid under the Act, only when two condi- tions have been complied with, to wit: (1) If such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made; and (2). if, following the most recent election held as provided in Section 9 (e) the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to authorize such labor organization to make such agreement.' In this case no union -shop election has been held in compliance with the proviso in Section 8 (a) (3) and the terms of Section 9 (e) of the Act. The union-security provision in the contrast was not conditioned on ratification by such an election. Records of the Board disclose that the Newspaper and Mail Deliverers' Union filed UA petitions involving employees of the Respondent in December 1949, but on January 4, 1950, requested leave to withdraw them.' Incorporation of the union-security provision in the contract, under the circum- stances of this case, is violative of the Act, whether or not it is enforced.' It is well established that an unauthorized union-security provision is violative of Section 8 (a) (1), (2), and (3) and 8 (b), (2) of the Act, and that the contract in which it appears will be set aside by the Board.' The saving clause contained in section 2-c of the contract could not save the instant contract from illegality, because it does not expressly provide that the operation of the union-security provision was to be conditioned upon compliance with the provisions of Section 9 (e) of the Act 5 See first proviso in Section 8 (a) (3) of the Act. 'See: Suburban Wholesalers, Inc., 2-UA-3690; and Rockaway News Company, 2-UA-5459-60. ' C. Hager & Sons Hinge Mfg. Co., 80 NLRB 163.. s Salant & Salant, Incorporated, 87 NLRB 215; Julius Resnick, Inc., 86 NLRB 38. Issues as to the validity of the identical instant contract are now pending before the Board in Rockaway News Supply Company, Inc., 2-CA-617, 2-CB-190. 9 Schaefer Body, Inc., 85 NLRB 195; Unique Art Manufacturing Co., 83 NLRB 1250; Lykens Hosiery Mills, Inc ., 82 NLRB 981. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I shall hold, therefore, that the collective bargaining agreement of October 25, 1948, was illegally entered into by the Respondent, and cannot be utilized to restrain its employees in the exercise of the rights guaranteed in Section 7 of the Act. I do not decide whether Waugh's refusal to cross the picket line of Nassau Typographical Union #915 (AFL) would otherwise be a breach of the no-strike clause (19-n) contained in the contract. Having held that the contract is illegal, it follows that the Board will not recognize any interpretation of its provisions by the adjustment board, or its decision and award attempting to enforce the terms thereof. It would not effectuate the policies of the Act to condone the unfair labor practices of the Respondent and the Newspaper Mail Deliverers' Union in entering into such a contract, by enforcing provisions in conflict with the rights of employees guar- anteed in the Act. Motion of the General Counsel to strike the affirmative defense based upon enforcement of the contract, which is set forth in paragraphs 5, 6, 7,. 8, and 9 of Respondents' answer to the complaint, is therefore granted. I further find that the discharge of Charles Waugh by the Respondent was a continuation of unlawful support rendered to the Newspaper and Mail Deliverers' Union to encourage membership in that labor organization. On the other hand, it is apparent that the discharge of an employee for engaging in concerted activity with employees of another employer, and refusing to cross a legitimate picket line of their union, has a tendency to discourage membership in that labor organization. The discouraging effect in this case was evidenced by the appear- ance of placards on the picket line of Nassau Typographical Union #915. calling: attention to the incident. It is my conclusion that the Respondent engaged in, and is engaging in, unfair labor practices by discrimination in regard to the hire and tenure of employment of Charles Waugh to encourage or discourage membership in labor organizations. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The al~tivities of the Respondent set, forth in Section III, above, occurring is connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and. obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in an unfair labor practice,. I shall recommend that it cease and desist therefrom, and take affirmative action in order to effectuate the policies of the Act. I have found that the Respondent entered into an illegal agreement with the Newspaper and Mail Deliverers' Union, and that it should not be enforced against individual employees in restriction of the exercise of the rights guaranteed by Section 7 of the Act ; but inasmuch as the charge and complaint herein is limited to a specific violation of Section 8 (a) (1) and (3) of the Act, I shall make no recommendations as to other violations, if any, concerning the contract of October 25, 1948. Finding that the Respondent discharged Charles Waugh in violation of Sec- tion 8 (a) (1) and 8 (a) (3) of the Act, I shall recommend that the Respondent offer him immediate and full reinstatement to his former or substantially equiva- lent position,10 without prejudice to his seniority or other rights and privileges,. 10 See The Chase National Bank of the City of New York, San Juan, Puerto, Rico,. Branch, 65 NLRB 827. STANDARD BRANDS, INCORPORATED 349 and that the Respondent make him whole for any loss of pay he may have suf- fered as a result of the discrimination by payment to him of a sum of money equal to the amount he would have earned from the date of his discharge to the date of offer of reinstatement less his net earnings" to be computed on a quar- terly basis in the manner established by the Board in F. W. Woolworth Com- pany, 90 NLRB 289. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period. It will also be recom- mended that the Respondent make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Nassau County Typographical Union #915 (AFL), and Newspaper and Mail Deliverers' Union of New York and Vicinity are labor organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing their employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Charles Waugh, thereby encouraging or discouraging membership in labor organizations, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] 11 Crossett Lumber Company, 8 NLRB 440. STANDARD BRANDS, INCORPORATED and INTERNATIONAL UNION OF OP- ERATING ENGINEERS, LOCAL 661, AFL, PETITIONER. Case No. 2-RC-3297. July 20, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before James V. Altieri,' hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 95 NLRB No. 52