Newspaper and Mail Deliverers' Union of New York and Vicinity

'NEWSPAPER AND MAIL DELIVERERS' UNION 589 the Petitioner for such unit which the Board in that event finds to be .appropriate for purposes of collective bargaining. In the event that a majority of the employees, in group 1 select the Petitioner and a majority of the employees in group 2 select the Intervenor, the em- ployees in each will be taken to have indicated their preference for a separate bargaining unit, and the Regional Director is instructed to issue a certification of representatives to the Petitioner or Intervenor, as the case may be, for the separate unit which the Board finds in such ,circumstances to be appropriate for purposes of collective bargaining. [Text of Direction of Elections omitted from publication in this volume.] NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY and ARTHUR FINKELSTEIN, ALFRED FRANKEL, CARL GALDSON, THEO- DORE GERSHOWr1Z, MARTIN IGOE , EDWARD JOHNTRY, NICHOLAS LAn- LETTI, PATRICK LEONARD, WILLIAM MCCLOSKEY, FRANCIS MEADE, JOHN MINOGUE AND EUGENE ROSE NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY and BENNIE Izzi, ON BEHALF OF HIMSELF AND OTHERS AND SIDNEY ROSENTHAL, JOSEPH RILEY, JOHN NICOLINI AND CARL CITRANO, EDWARD JOSEPH GUERIN AND MEYER SACKS. Cases NOS. 2-CB-135, .2-CB-145, 2.-CB-370, and 2-CB-381. November 26, 1952 Decision and Order On November 30,1951, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel and certain of the charging parties filed exceptions and supporting briefs. On February 8, 1952, the Board granted permission to New York Mirror Division-the Hearst Corporation to intervene and to file exceptions. The request of the charging parties for oral argument is hereby denied, as the record and the briefs and exceptions, in our opinion, adequately present the issues and the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearings and finds that no prejudicial error was committed. 101 NLRB No. 128. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs , and the entire record in the case, and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner with the exceptions , modifications, and additions set forth below. 1. As set forth in the Intermediate Report, on January 25 , 1951, the Respondent Union and The Publishers Association entered into a hiring agreement which provided for creation of a number of new situations to be filled with a quota of 60 union men to 40 nonunion men. Due to the Respondent Union 's repudiation of this agreement, the General Counsel petitioned the United States District Court for the Southern District of New York for a restraining order. Although the General Counsel stated at the hearing that he made no contention with respect to the legality or illegality of the quota hiring agreement, the Trial Examiner concluded that the agreement was "clearly illegal." The Trial Examiner further found that the General Counsel filed the petition for the restraining order so that the Respondent Union would be compelled to abide by the "illegal" agreement. The New York Mirror has excepted to the finding of the Trial Examiner that the agreement was illegal, contending that this issue was not raised by the pleadings and was thus not before the Trial Examiner, and the General Counsel has excepted to the finding that the petition for the restraining order was based upon the illegal agreement. Under all the circumstances of this case, we find merit in these ex- ceptions. We shall, therefore, without passing upon the merits of the issues involved, reverse the Trial Examiner 's findings with respect to the agreement of January 25, 1951, and with respect to the restraining order of the district court.' 2. The Trial Examiner found, and we agree, that the Respondent Union has attempted to cause and has caused the Times and the Mirror to discriminate in regard to the hire and tenure of employment of the individuals named in the section of the Intermediate Report entitled "The Remedy." The General Counsel has excepted to the Trial Ex- aminer's failure to make specific and detailed findings that the Re- spondent Union threatened strike action and did strike the New York Times on January 6, 1950. The General Counsel has also excepted to the failure to find similar violations arising out of incidents of threats and work stoppages occurring at the Times on May 17-18, 1949. The findings sought by the General Counsel are supported by the record and also by the Board's findings in an earlier related case.' The General Counsel stated on the record that the unfair labor practices occurring at the Mirror came about as a result of a strike by Cf. J I. Case Company, 71 NLRB 1145. 2 Newspaper and Mail Deliverers' Union (Herald Tribune), 93 NLRB 419, 429-30, 434. The pertinent portions of the record in this earlier case have been incorporated herein. NEWSPAPER AND MAIL DELIVERER'S UNION 591 the Respondent Union on January 6, 1950, after which certain non- union men were discriminatorily deprived of regular employment and were required to submit to the discriminatory shape. We therefore find, in accord with the Trial Examiner, that the Respondent Union engaged in unfair labor practices in violation of Section 8 (b) (2) and (1) (A) of the Act. We shall, however, con- trary to the findings of the Trial Examiner, date our unfair labor practice findings from May 17, 1949, with respect to the New York 'Times, and from January 6, 1950, with respect to the New York Mirror, the dates of the first definitive coercive actions by the Re- spondent Union at these newspapers.3 The Remedy Having found that the Respondent Union has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. We have found that the Respondent Union discriminated against a number of employees named in the section of the Intermediate Re- port entitled "The Remedy." Accordingly, we shall order the Re- spondent Union to make them whole, in the manner set forth in the Intermediate Report, for any loss of pay they may have suffered since May 17, 1949, with respect to employees of the New York Times, and since January 6, 1950, with respect to employees of the New York Mirror. Because we have reversed the Trial Examiner's findings with respect to the restraining order of the district court, we shall not adopt his recommendation that back pay should not accrue from the date of the district court order to the date of its vacation. In accord with our usual practice in similar situations, the period from Novem- ber 30, 1951, the date of the Intermediate Report, to the date of our order herein, will be excluded in computing the amount of back pay to which the discriminatees may be entitled. The Trial Examiner recommended that the Respondent Union be ordered to cease and desist from restraining and coercing the em- ployees of the New York Times and the New York Mirror and from causing or attempting to cause the New York Times and the New York Mirror to discriminate against their employees. The General Counsel contends that this recommended order is not as broad as the violations would warrant and that the Board should issue an order prohibiting coercive activities by the Respondent Union in an area coextensive with its jurisdiction. We agree with this contention.4 See Newspaper and Mail Deliverers' Union (Herald Tribune), 93 NLRB 419. See United Mine Workers of America,, District 2 (Mercury Mining and Construction ,Corporation), 96 NLRB 1389. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The practices we have held to be unlawful have been directed not only- against the Employers immediately involved herein but also against other newspaper publishers within the area of the Respondent Union's- jurisdiction .5 We therefore find a continuing danger of the future commission by the Respondent Union of the acts now and previously held unlawful. In order, therefore, that the policies of the Act may- be effectuated, we shall broaden the order as requested by the General Counsel .6 We expressly reserve the right to modify the remedial provisions of our Order herein, if made necessary by a change of conditions in the future, or to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now apparent. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Newspaper and Mail Deliverers' Union of New York and Vicinity, its officers, repre- sentatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Restraining or coercing employees of the New York Times Company, Inc., the Hearst Corporation, New York Mirror Depart- ment, their successors or assigns, and any other companies engaged in the newspaper publishing business in New York City or vicinity, in the exercise of rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. (b) Attempting to cause and causing the New York Times Com- pany, Inc., the Hearst Corporation, New York Mirror Department, their officers, agents, foremen, successors, or assigns, and any other companies engaged in the newspaper publishing business in New York City or vicinity, to discriminate against employees in violation of Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: 5 Hearst Consolidated Publications , Inc., 93 NLRB 237; Newspaper and Mail Deliverers' Union (Herald Tribune), 93 NLRB 419 ; News Syndicate Co., Ins., 95 NLRB 1098. "See United Mine Workers of America, District 2 (Mercury Mining and Construction Corporation), 96 NLRB 1389 ; Jarka Corporation of Philadelphia ; 94 NLRB 320, enf. in this respect, 198 F. 2d 618 (C. A. 3) ; United Mine Workers of America (West Kentucky Coal Company ), 92 NLRB 916 , enf. 195 F 2d 961 (C. A. 6), certiorari denied , November 10, 1952. NEWSPAPER AND MAIL DELIVERERS ' UNION 593 (a) Notify the New York Times Company, Inc., the Hearst Cor- poiRtion, New York Mirror Department, and the individuals-named in the section of the Intermediate Report entitled "The Remedy," that it has no objection to the hiring and employment of employees, in- cluding those individuals named in the section of the Intermediate Report entitled "The Remedy," without discrimination because of membership or nonmembership in the Respondent Union and with- out prejudice to seniority or other rights and privileges except to the extent otherwise authorized by Section 8 (a) (3) of the Act; and further, request the New York Times Company, Inc., and the Hearst Corporation, New York Mirror Department, to offer the individuals named in the section of the Intermediate Report entitled "The Rem- edy" such nondiscriminatory employment. (b) Make whole the employees named in the section of the Inter- mediate Report entitled "The Remedy" for any losses in pay they may have suffered because of the discrimination against them, in the manner set forth in the section of the Board's decision entitled "The Remedy." (c) Post in conspicuous places, in its business office and elsewhere where notices to members are customarily posted, copies of the notice attached hereto as Appendix A.'. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an official representative of the Respondent Union, be posted by it immediately upon receipt thereof and maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Second Region signed copies of the notice attached hereto as Appendix A for posting at the plants of the New York Times Company, Inc., and the Hearst Cor- poration, New York Mirror Department, those two companies willing, in places where notices to delivery department employees are custom- arily posted. (e) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the Res- pondent has taken to comply therewith. IT Is FURTHER ORDERED that the complaint be dismissed as to Sidney Rosenthal. CHAIRMAN HERzoG and MEMBER MuRDOCK took no part in the con- sideration of the above Decision and Order. * In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A NOTICE 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 you that : WE WILL NOT restrain or coerce employees of the NEW YORK TIMES CORPORATION AND HEARST CORPORATION, NEW YORK MIRROR DEPARTMENT, or any other companies engaged in the newspaper publishing business in New York City and vicinity, in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and to refrain from any or all such activities, as guaranteed in Section 7 of the National Labor Relations Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause the NEW YORK TIMES CORPORATION AND HEARST CORPORATION, NEW YORK MIRROR DE- PARTMENT, their officers, agents, foremen, successors, or assigns, or any other companies engaged in the newspaper publishing busi- ness in New York City and vicinity, to discriminate against em- ployees in regard to their hire or tenure of employment or any term or condition of employment, in violation of Section 8 (a) (3) of the Act. WE wILL make whole the following named employees for any losses of pay suffered by them as a result of the discrimination against them : Arthur Finkelstein Nick LaForgia Alfred Frankel Joseph LaForgia Carl Galdson Melvin Lavietes Theodore Gershowitz Salvatore Baldanza Martin Igoe Harry Koenig Edward Johntry Meyer Traven Nicholas Lauletti Benny Izzi Patrick Leonard Edward Guerin William McCloskey Meyer Sacks Francis Meade Joseph Riley John Minogue Carl Citron Eugene Rose John Nicolini, Jr. NEWSPAPER AND MAIL DELIVERERS' UNION 595 We have no objection to the employment of the above-named persons or any other employees without discrimination because of their non- membership in the union and without prejudice to their seniority and other rights and privileges ; we have notified the New York Times Corporation and Hearst Corporation, New York Mirror Department, and the above-named persons, that we have no objection to their em- ployment in such manner; and, further, we have requested the New York Times Corporation and Hearst Corporation, New York Mirror Department, to offer the above-named persons employment. NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINrrY, Labor Organization. Dated -------------------- By ------------------------------ (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date hereof and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Various charges of unfair labor practices having been filed by the individuals named in the caption against Newspaper and Mail Deliverers' Union of New York and Vicinity,' herein called the Union, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel and the Board, by the Regional Director for the Second Region (New York, New York), issued his complaint against Respondent on August 24, 1950, alleging violations by Respondent of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. On August 23 and 24, 1950, the Regional Director issued an order consol- idating the above cases. Copies of the charges, the complaint, the order of consolidation, and notice of hearing were duly served upon Respondent and the charging parties. The consolidated complaint alleged, in substance, that since on or about July 18, 1948, Respondent caused and/or attempted to cause the Employers herein concerned, namely, the New York Times Company, Inc., and the Hearst Corporation, New York Mirror Department, hereinafter respectively called the Times and the Mirror, to discriminate against their employees and pros- pective employees in regard to hire and tenure of employment and other terms or conditions of employment by forcing and requiring them to give preference to members of Respondent Union over nonmembers thereof in the delivery departments of the two papers. On August 29, 1950, Respondent filed its answer to the complaint denying that it had committed any unfair labor practices. I The charges as filed originally, and the complaint, included as Respondents the New York Times Company and the Hearst Corporation„ New York Mirror Department. Subse- quently, on November 15, 1950, a settlement stipulation was entered into between the Gen- eral Counsel and these two Employers pursuant to which on the same day the Regional Director for the Second Region issued an order severing cases. The result of this settle- ment and severance was that the issues herein were tried against the Union only. 242305-53-39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon due notice a hearing was held at New York, New York, on various dates between June 14 and 27, 1951, before the undersigned Trial Examiner. The General Counsel, Respondent, and some of the individual complainants were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. Respondent's motions to dismiss the complaint, made during the course of the hearing, are disposed of in accordance with the findings which follow. At the conclusion of the hearing the parties were afforded opportunity to argue orally before the under- signed and to file briefs with him. Oral argument was presented by all counsel. Briefs were waived. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESSES OF THE COMPANIES The New York Times Company, Inc., is a New York corporation maintaining its principal office and place of business at 229 West 43rd Street in the City, County, and State of New York where it is now and has been continuously engaged in the printing, publishing, and distribution of The New York Times, a daily and Sunday newspaper of general circulation, and a periodical known as The New York Times Index. During the year ending December 31, 1949, the Company in the course and conduct of its business operations caused to be purchased, transferred, and delivered to its New York plant newsprint and other supplies and materials, including ink, type and stereotype, metals, machin- ery, and office equipment valued in excess of several million dollars which were shipped, transported, and delivered to said New York plant in interstate and foreign commerce from States of the United States other than the State of New York and from foreign countries. During the year ending December 31, 1949, the Company in the course and conduct of its business operations sold and distributed The New York Times and The New York Times Index in a large number of States of the United States and in some foreign countries. During that period the net paid circu- lation of the daily edition of The New York Times amounted to approximately 600,000, of which approximately 32 percent consisted of sales outside the State of New York ; in the same year the net paid circulation of its Sunday edition amounted to approximately 800,000, of which approximately 48 percent consisted of sales from States of the United States outside the State of New York. During the year ending December 31, 1949, the New York Times Company, in the course and conduct of its business operations, published in its publications advertising valued at an amount in excess of several million dollars, a substan- tial portion of which consisted of national advertising, including automobile advertising. During the same period the Company utilized national and inter- national news services, including the Associated Press, United Press, Interna- tional News Service, and other agencies which supply feature materials and photographic services of various kinds. These services make use of the various channels of interstate commerce and communications in furnishing their serv- ices. Respondent admits that the Company is and has been engaged in com- merce within the meaning of the Act. The Hearst Corporation, New York Mirror Department, is a Delaware Cor- poration having its principal office and place of business at 235 East 45th Street in the City, County, and State of New York, herein called the New York plant, NEWSPAPER AND MAIL DELIVERERS ' UNION 597 and is now and has been continuously engaged at said plant in the printing, publication, sale, and distribution of the newspapers, Daily Mirror and Sunday Mirror. During the year ending December 31, 1949, the Company in the course and conduct of its business operations caused to be purchased, transferred, and de- livered to its New York plant, newspaper, ink, zinc, and other materials valued in excess of one million dollars, of which approximately 90 percent was trans- ported to said New York plant in interstate and foreign commerce from States of the United States other than the State of New York and from foreign coun- tries. The Company utilized and continues to utilize national and international news services, features, and photographic services which make use of interstate commerce and communications. The Company published and continues to publish in its publications advertising at a rate in excess of one million dollars per an- num, a substantial portion of which consists of national advertising. The Com- pany published, sold, and distributed daily and continues to publish, sell, and distribute daily in excess of one million copies of The Daily Mirror, approxi- mately 20 percent of which was and continues to be sold and distributed out- side the State of New York. It published, sold, and distributed and continues to publish, sell, and distribute on Sundays in excess of two million copies of The Sunday Mirror, 50 percent of which was and continues to be sold and dis- tributed outside the State of New York. The sales of its publications were and continue to be at a rate in excess of $1,000,000 per annum. Respondent admits that the Company is engaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Newspaper and Mail Deliverers' Union of New York and Vicinity is a labor organization admitting employees of the Times and the Mirror to membership. III. THE UNFAIR LABOR PRACTICES A. Background 1. Prior cases involving the Union This proceeding arises out of the hiring practices participated in by the Union in hiring employees in the delivery departments of the Times and Mirror. During all times relevant herein and for many years prior thereto the leading news- papers of metropolitan New York were associated as and represented by the Publishers' Association of New York for the purposes of collective bargaining with the employees of said publishers. In addition to the Times and Mirror, the Association included, among others, the Daily News, the Herald Tribune, the Journal American, the World Telegram, the Post, and, until its merger with the World Telegram in January 1950, the Sun. The Board has heretofore rendered its decision in Newspaper and Mail Deliv- erers' Union of New York and Vicinity (Hearst Consolidated Publication, Inc., ct al.),' Newspaper and Mail Deliverers' Union of New York and Vicinity (Joseph Rizzo, et al.),' and Newspaper and Mail Deliverers' Union of New York and Vi- cinity and Ncirs Syndicate Company, Die.) .4 The Union in the instant proceeding was a respondent in those cases All involve the illegality of hiring practices imposed or sought to be imposed by the Union upon employers, which practices 2 93 NLRB 237 193 NLRB 419 4 95 NLRB 1098. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were similar to those involved herein, the first at the Journal American, the second at the Herald Tribune, and the third at the News. In the instant hearing the parties stipulated into this record a substantial number of pages of testi- mony in the Journal American and Herald Tribune cases. This evidence deals in substantial part with the negotiations carried on by the Publishers' Associa- tion and the Union for the negotiation of a new contract to follow the expira- tion on July 16, 1948, of a closed-shop agreement between the parties, the fur- ther negotiations between the same parties, having for their purpose the inter- pretation of the subsequently executed contract covering the period from October 25, 1948, to October 24, 1950, and the conduct of the Union following the execu- tion of the last contract. Trial Examiner Charles Schneider heard both the Journal American and Herald Tribune cases and Trial Examiner David London, the Daily News case. Both made extensive findings of fact relating to the above subject matter. These findings of fact have now been adopted by the Board . I have given independent consideration to this incorporated testimony insofar as it is competent and rele- vant to the instant proceeding, as well as to the Intermediate Reports of the two Trial Examiners since they were incorporated into the Board 's decision and are now dispositive of the background facts insofar as they apply to the instant proceeding. I have accordingly made extensive use of the language contained in these Intermediate Reports, particularly that of Mr. Schneider, and have set forth the same in some of the following paragraphs. The events in the instant proceeding are largely those which have occurred after the Board's decision in the above three cases. It thus brings up to date what is in effect a continuing narrative. The recitation of these latter events, however, I have confined for the most part to the Times and Mirror, since the charging parties in the instant case are or were the employees of one of these two papers and I have not, though urged by counsel for the General Counsel to do so, made any specific finding of unfair labor practices except as the record reveals their occurrence at one of these two papers. 2. History prior to the 1948 contract In 1948 and for many years prior thereto, the employees in the delivery departments of the various metropolitan papers were organized into the Union. The function of the delivery department in these publications is to handle newspapers coming from the presses and to convey them afoot or by truck to various delivery points, from which they are either directly or ultimately distributed to readers. Partially because the size of and demand for newspapers is not constant and stable the manpower needs in the delivery department of the publishers vary from time to time. Sunday editions, for example, require a considerably expanded work force, partly on Friday, mainly on Saturday. A reservoir of labor to fill these peak and temporary demands is therefore necessary. At the same time there is a minimal expectancy of employment every day. What- ever the size and circulation, a work force of ascertainable size is required. This results in a number of regular jobs, known as regular situations, assigned permanently to certain individuals on a 5-day week basis. In addition to i egular situation holders, there are two other categories of delivery depart- ment employees : regular substitutes and extras. Regular substitutes are employees who have completed a "5 x 5"; that is, have worked in a particular shop 5 days a week for 5 consecutive weeks, thereby acquiring certain promo- tional, hiring, and other prerogatives. Those who are not regular situation holders or regular substitutes are known as extras. NEWSPAPER AND MAIL DELIVERERS' UNION 599 Regular substitutes and extras constitute the extra labor force from which, on a day-to-day basis, they are assigned to whatever open jobs may be available. They are hired from a shapeup. At appropriate hiring periods during the day they present themselves at the plant where supervisors make selections from among them. Regular substitutes have priority in hiring over extras. Vacancies are first filled from the regular substitutes' list according to seniority. When this list is exhausted, resort is had to the extra list in the same order. In general, extras are not 5-day a week shapers, though they may be. Some are regular situation holders who shape other plants on their days off, or persons regularly employed outside the industry. When union members, these extras are called "outside card men." For a number of years the Union has had collective-bargaining contracts with the metropolitan newspapers, on a multiple-employer basis, the Publishers' Association acting as the bargaining agent of the contracting papers. The latest of these contracts was executed on October 25, 1948, effective to October 24t 1950. It was preceded by a contract effective July 17, 1945, which expired on July 16, 1948. Under the 1945 contract, and for some years prior thereto, the Union agreed to furnish competent workmen at regular rates in such number as the publishers required. In the event the Union failed to furnish such men promptly the publishers were authorized to employ such men as they were able to obtain, provided that if the men so employed are not members of the Union they shall be em- ployed 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 any publisher to fill a regular situation with anyone not a member of the Union. Seniority with the particular employer was, contractually and in practice, the basis for promotional and hiring priority. Due to the Union's inability to supply adequate manpower, a number of nonunion men found it possible over a period of years to secure fairly regular employment from the shapeup. The provisions of the contracts, however, precluded them from acquiring any seniority, subjected them to displacement at any time by union men, however recent the latter's appearance on the scene, and denied them any right to hold a regular situation. Substantial distinctions in employee tenure and status were therefore based purely on the fact of union membership or nonmembership. No contention is made, however, that this arrangement was in any respect illegal prior to July 17, 1948. At the same time union membership was difficult to acquire, generally passing only by descent and being largely entailed. For some years the membership list has been frozen and substantially only sons of members and employees in newly organized shops have been eligible to fill any vacancies. The provisions of the 1945 contract were presumptively legal under the Wagner Act of 1935; at least no contention is made here that they were illegal. The Labor-Management Relations Act of 1947, however, effectively curtailed continuance of the requirement for hiring preference based on union member- ship. Nevertheless, Section 102 of the latter statute preserved, for the duration of the contract, the legality of existing contractual arrangements valid under Section 8 (3) of the Wagner Act. Presumably the 1945 contract due to expire July 17, 1948, was saved by this provision. In any event it is not contended here that preference accorded to union members was in any way illegal prior to July 17, 1948. But it is plain that any such preference ac- 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corded after the latter date, other than that inherent in the legitimate application of a "union shop" clause, would be in violation of the statute ; and here the facts do not disclose that such a clause was the basis for, or is a defense to, any action taken by Respondent. Briefly, the issue here is whether the Union caused, and the Company continued to accord, illegal preference to union men after the expiration of the contract in July 1948. 3. The 1948 contract The 1945 contract expired on July 16, 1948. Negotiations between the Union and the Association for renewal began several months prior to that date but, except for an agreement reached between the negotiators sometime in July which was rejected by the union membership, the negotiations were unsuc- cessful until October. On October 25, 1948, a new 2-year contract was signed. During the interim period between July 17 and October 25, 1948, the publishers, including the Company, continued to maintain the old hiring practices, namely absolute preferment of union men, without change. Section 4 of the new contract provided, in part, as follows : SENIORITY 4-A As of the effective date hereof, all employees, including foremen and assistant foremen, holding regular situations with each newspaper signatory hereto shall be arranged in a seniority and priority list in accordance with their length of service with such newspaper. In like manner, all regular substitutes connected with each particular newspaper shall be listed in the order of their length of employment. All other persons seeking employment with the paper shall be classified as extras and shall be listed as such in order of original employment. No man's name shall remain on the list of extras, however, if five weeks have elapsed since the date of his last employment. When the manpower needs of the office cannot be filled from regular employees, from available substitutes, or from extras entitled by former employment to perform the work the foreman shall select necessary men from the following categories in order, providing such men are familiar with the work of the available opening : First : Former regular situation holders. Second : Other persons who have worked in the delivery department. Third : Persons with experience in other delivery departments in the Metropolitan area. Fourth : Persons concerning whose competency the foreman has no rea- son to doubt, but this discretion by the foreman shall not be exercised as a means of discriminating against any person because of his membership or non-membership in the Union. Following paragraphs of section 4 provided for the filling of regular situa- tions on the basis of seniority from among, first, regular situation holders, and second, substitutes ; and for layoffs among regular situation holders in reverse order of seniority standing. Though this section does not explicitly state that substitutes and extras were to be hired from the shape in the order of their standing on the seniority lists, this was the contemplation of the section and the parties, and it was so construed. NEWSPAPER AND MAIL DELIVERERS' UNION 4. The negotiations for the 1948 contract 601 During the early part of the negotiations the union representatives took the position that hiring priority among substitutes and extras should be on the basis of seniority in the industry, rather than on a plant basis, and that the publishers should notify the Union of any manpower needs. These provisions were not, however, adopted. The Union likewise wished the contract worded in such fashion as to insure preference to Union members wherever possible. As to this, the Publishers' Association took the position that hiring practices had to conform to the Taft-Hartley Act but that the Association was willing to accord the Union every permissible benefit under the Act. The prior contract had consistently referred to "union members" in defining its application. The substitution of the word "employees" for "union members" in the 1948 contract, at the instance of the Association, caused concern for a time to the union repre- sentatives. As the negotiations progressed and the limitations imposed by the law became clearer, the position of the Union's negotiators with respect to pre- ferment of union men, at first strongly stated, moderated. The result was that by mid-July 1948 the negotiating representatives came to agreement on the terms of the contract. When the agreement was submitted to the union executive board and the membership, however, it was rejected. The evident and substantial reason for the rejection was the shift in emphasis and rights inherent in the substitution of the word "employees" for the words "union members" in the beneficial sections of the contract. In sum, the objection was to any substantial reduction of the exclusive preference previously accorded union members. In addition, the Union insisted on the right to discipline foremen, a demand which the Association resisted. Further negotiating sessions were begun late in July 1948, this time with the Union's executive council in attend- ance, who brought in Professor Milton Handler for advice. Handler assured the apparently suspicious executive council that there was no "shenanigan" and that the agreement was "a good contract and the best one they could hope to get under the Taft-Hartley Act." Nevertheless, negotiations continued and it was not until October that the contract was finally ratified by the Union. 5. October 1948 to November 1949; the publishers' attempts to establish seniority lists As has been noted, section 4-A of the 1948 contract contemplated the estab- lishment of hiring lists of extra men "in order of original employment" by the particular publisher, with provision for dropping the name of anyone who had not received employment during the past 5 weeks. It is thus seen that the 1948 contract, as had the prior ones, despite the industry-wide bargaining pattern, incorporated a system of seniority by shop, and not industry, employment. Moreover, seniority and precedence on the lists was to be determined, according to the contract, by the date of "employment." The materiality of these factors will be apparent from later discussion. On October 26, 1948, therefore, the Association and the Union met to discuss the compilation of the hiring lists. The categories of regular situation holders and regular substitutes appeared to present no substantial problem. Difficulties arose, however, regarding the composition of the extra list. Since the contract provided that nonemployment over a 5-week period resulted in elimination from the list, the Association suggested, and there was apparent agreement at the October 26 meeting, that the initial list should contain the names of all persons 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who had worked in the 5-week period preceding October 25, 1948, the effective date of the contract. On the following day, however, basic disagreement arose which ultimately led to the issuance of the present complaint and the unsettlement to the present day of hiring conditions in the delivery departments of all the major New York newspapers. On that day, October 27, 1948, the Union notified the Association that it disapproved the method of extra listing determined upon at the October 26 meeting. The reason for this disapproval was that the listing in prospect would result in the inclusion on the extra list of a significant number of nonunion men. 6. October 29, 1948-The refusal to work at the Herald-Tribune Within a day or two after the execution of the October 1948 contract, the Herald-Tribune posted hiring lists in accordance with section 4-A of the con- tract. On Wednesday, October 27, 1948, Leon Braunstein, a union business agent, objected to the presence of a number of nonunion men on these lists. Braunstein further said that nonunion men could have no seniority rights antedating July 17, 1948. In addition, Braunstein asked that several recently hired union members be given positions on the extra list higher than their seniority entitled them. Braunstein further said that the Tribune was the only paper which had proceeded to post lists, that the Tribune's work force was "disturbed over the introduction of the lists," and that he "could not be around the Tribune all night every night to calm the men down." Braunstein con- cluded with the statement that "somebody was going to sue" the Tribune and that the Tribune "to keep everything in the family . . . might as well avoid being sued by union men." Nothing more untoward occurred at the Herald-Tribune on that or the follow- ing night. Friday and Saturday are the heavy nights at the Tribune in prep- aration for the Sunday edition. On Friday night, October 29, 1948, eight regular week end shapers, all union men, refused to go to work when called from the shape line, thus delaying operations. The reason for the refusal was that nonunion men were higher on the hiring lists than they. Spokesman for the men was Frank Cancillero, chapel chairman. The Herald-Tribune finally resolved the dilemma by withdrawing the hiring lists for "further study," and hiring was then resumed on the old basis of union preference. During the discussion, it was indicated that unless the lists were withdrawn, the eight men would also refuse to work on Saturday night. No other newspaper attempted to follow the Tribune's example and post hiring lists. On the following Monday, protracted negotiations began between the Publishers' Association and the Union to solve the problem. 7. The November 1, 1948, meeting A meeting was held on November 1, at which the union attorney, Samuel Duker, suggested that a proper interpretation of the contract required the list- ing on the original extra list, in the order of original employment, of all persons who had ever worked in the delivery departments of the publishers ; and that all who did not work in the 5-day period from October 25, 1948, should then be eliminated. This suggestion became known as the "Duker formula" and the "Back to Methuselah" theory. The Union's position on this suggestion was thus stated by Vice-Chairman Mapel of the Publishers' Association in his testimony : [The] point being, and not being concealed, that it would be a very simple thing to have a list of employees made up or created to include a great many NEWSPAPER AND MAIL DELIVERERS' UNION 603 men, a great many union men who perhaps had worked only once, or maybe only a dozen times, or maybe a number of years, but many, many years ago, it being the position of the Union that by taking advantage of the language of the contract in that respect, and by listing men according to the date of their original employment, obviously you would get a great mass of union men at the top of the list and any non-union men, who might have worked and who might have crept into the so-called industry in the last few years would be well down on the list, since the hiring would be done from the top of the list to the bottom, then and I quote [the Union] : "The problem of the non-union man would be solved." The compilation of such a list going back many years presented a formidable problem. The position of the Union at this November 1 meeting, as related by Mapel, was that "we are going to take every step we can to have union men go in ahead of non-union men." 8. November 2, 1948 At another meeting on the following day it was ascertained that the effect on union men of the proposed new hiring order was greater than had at first been supposed. Thus it was now realized that outside card men who regularly shaped for employment on certain nights were subject to "bumping" by nonunion men of senior shop standing. This situation caused some concern to the Tribune, for example, which was apprehensive that it might lose some regular Saturday night extra shapers. In addition it was also realized that some nonunion men were sufficiently senior to compete for regular situations. It was the extra list, however, which provided the major problem. The publishers suggested a system of daily hiring lists based substantially on regularity of employment on each particular day, but this got nowhere when it became apparent that such a sys- tem would also include a significant number of nonunion men. At this point, Pellegrino, union business agent, stated the Union's position to be that no non- union men could go to work before union men under the contract, for the reason that nonunion men had no seniority antedating the expiration date of the prior contract. To this the publishers demurred, concurrently suggesting that Pro- fessor Paul P. Hays, impartial chairman under the contract, be called in in- formally. A meeting with Chairman Hays present was arranged for November 14, 1948. 9. November 15, 1948 At the meeting on this day the suggestion was made, either by Chairman Hays or by Samuel Duker, union counsel, that industry-wide, rather than plant, seniority might be a proper criterion for hiring priority, but apparently the pro- posal was not seriously discussed . Further suggestions, designed to meet union objections, were made with respect to the compilation of daily hiring lists, but the Union declined to take a definite position without further exploration. As Mapel quoted the Union, its representatives said, "we are not interested in this thing as an academic matter. We want to know what will happen to our men. We want to see these lists." As a result the Herald-Tribune was designated to compile a trial list based on its records in order that the conferees might have something concrete to visualize. 10. November 17, 1948 At a meeting on November 17, the Tribune presented the test list, on which the nonunion men were identified. The Union objected to the list because of the 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presence of high ranking nonunion men and reiterated its position that they could have no seniority antedating July 17, 1948. After study, the Union further an- nounced that it could not commit itself until a similar test list was made up at the Daily News, the largest employer of union men. The publishers objected to any further delay, pointing out that unfair labor practice charges had been filed by nonunion men against the Tribune. After some further discussion, Publishers' Association Vice-Chairman Mapel said that he was going to lay the entire matter before Charles Douds, the Board's Regional Director, invited the union representatives to join him in so doing, and on November 19, 1948, union and publisher representatives met with Regional Office officials. 11. January 1949; the Union changes its leadership ; the entrance of the adjust- ment board In late November of early December 1948, union officers were elected. The incumbents were largely swept out of office. The new officers, however, could not act until January 1, 1949. As a result no meetings were held in December. In the interim the publishers, as Mapel put it, merely "rocked along." With the induction of the new officers on January 1, 1949, the Union's position became more militant. Among the new union officers were Joseph Simons, president, and William Walsh and Harry Walzer, business agents. On January 14, 1949, the publishers and the new officers met for the first time, with Chairman Hays present. The Union announced that all the plans pre- viously proposed were unworkable, but when asked for suggestions stated that it had none to offer. At this meeting it became evident that the Union had determined to make a firm stand for the preferment of union men. Union President Simons made the following statements, not necessarily consecutively, to the publishers : "The Taft-Hartley Act, in my humble opinion, does not apply whatsoever . . . Until the law is interpreted, nobody knows ; if you need extras the Union will supply them . . . I serve notice in the meantime union men are going to work before non-union men ... you have got to pay somebody, so you might as well pay union men . . . I am not interested in seniority. This contract was made for members of this union . . . If non-union men have a quarrel, let them go to the government . . . you do the hiring. You do the violating if there is any violating." The contract provided machinery, known as the adjustment board, for the determination of disputes not resolvable by negotiation. The board consisted of two representatives of each party. If the dispute was not resolved there the impartial chairman was added. Decisions of the five-man board were final and binding. At the January 14, 1949, meeting publishers' Vice-Chairman Mapel invited the Union to join in submitting the dispute to the adjustment board. Not receiving an affirmative answer the publishers invoked the adjustment machinery unilaterally. Several adjustment board meetings were held in the latter part of January 1949 along with a conference with officials of the Regional Office. During these ses- sions union representatives told the publishers several times, in substance, that unless union men were hired, the papers were "not going to be delivered." At the insistance of the Union publishers supplied the Union with lists of regular situation holders, regular substitutes, and of all extras who had worked in the 5-week period from mid-December 1948 to late January 1949, with the nonunion men designated. Nevertheless when the parties met again in late February, the union representatives indicated that they had not studied the lists much, if at all. At this meeting the Union made a number of proposals, including one NEWSPAPER AND MAIL DELIVERERS' UNION 605 to the effect that the publishers secure all manpower through the Union. Meet- ings continued through the month of March in an effort to arrive at a mutually satisfactory hiring procedure, without success. Finally, in mid-March, apparently convinced that there was no prospect of bilateral solution, the publishers decided to set up hiring lists unilaterally, list- ing employees on the basis of seniority without regard to union affiliation, and to put them into operation. 12. The May 1949 strikes The compilation of these lists was completed by May 11, 1949, and on May 16 they were posted in the various newspapers. At the Journal-American, the Tribune, the Times, and the Mirror, they were removed. At the Times, Walsh told Egan, the assistant night circulator, that if any foreman or assistant fore- man attempted to hire pursuant to the list he would be given a summons by the Union and that union cards would be taken away, and if the list was followed the Times would be struck. On May 17, 1949, the publishers began to hire according to the lists. This action evoked strikes and threats of strikes by union officials at various papers. Business Agent Walsh made repeated threats of strikes at the Herald-Tribune if that paper attempted to hire from the lists, saying that he would "close down the plant," and on May 19 the Union there engaged in a slowdown. On the same day the Union struck the Journal-American to compel the hiring of union men before nonunion, without regard to their standing on the hiring lists. This stoppage lasted some 12 minutes and was terminated when the Journal-American capitulated and put to work six union members of junior seniority whom Union President Simons demanded be hired. At the request of the publishers, Impartial Chairman Hays had been standing by since the night of May 18 to meet anticipated trouble. On May 19, the pub- lishers invoked the five-man adjustment board . After discussion of the situa- tion, a majority of that board (Chairman Hays, Union President Simons, and Business Agent Walzer) decided, in substance, to reinterpret section 4-A of the contract. Chairman Hays announced the decision to the parties, saying that the board would issue a new and temporary hiring formula on May 23, but added that until it was prepared the existing hiring lists would continue to be effective. The announcement that the lists would remain in effect in the interim period evoked a storm of protest from the union representatives, who declared that the publishers' unilateral action in posting the lists had created "chaos" in the industry. When Business Agent Walzer attempted to calm Business Agent Walsh, the latter told Walzer that when the men "walked out" Walzer would "have to be responsible for it." Union President Simons announced that he was now dissociating himself from the award. He admitted having ordered the stoppage at the Journal-American that day and threatened another strike if nonunion men were put to work there. Business Agent Walsh said, referring to the strike at the Journal, that "If I violate [the no-strike clause in the con- tract] it won't be for any 8 [sic] minutes. It will be for all night." With refer- ence to the Daily News, Walsh said : "I don't know how long I can hold out. It is coming. The first night I get three drinks inside of me it is coming." Union Vice-President Walters declared that the decision nullified the contract, a position which Union Attorney Duker observed was erroneous. Simons said that he would not be responsible for what happened that night and the conference terminated, as Mapel put it, in a "chaotic state." 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 13. The May 23 award ; the abandonment of the hiring lists On May 23, 1949, the adjustment board, with the publisher members dissenting, handed down what became known as the interim award. This award revoked the outstanding hiring lists, and in effect changed the contract criteria for hiring preference from length of plant service substantially to length of employment in the industry. As described by the parties, it substituted industry seniority for plant seniority as the basis for hiring order. In addition it gave the foreman in each plant final authority to determine qualifications for employment. Foremen were members of the Union and covered by the bargaining contract. The text of the majority award is as follows : 1. The lists now posted by the various publishers shall not be used as the basis for hiring and are to be withdrawn immediately. 2. Effective immediately the foreman of each delivery room in hiring extra men shall give preference to those applicants for employment who have the most complete claim to, and are best qualified for the work, on the basis of length of service, and regularity and continuity of employment in the industry. In administering this clause the foremen shall use their best efforts to observe the spirit and letter of this provision. Where a dispute arises the foreman's determination shall prevail, but any case in which the foreman willingly and knowingly discriminates may be pressed as a grievance and any applicant against whom such discrimination in hiring was exercised shall be entitled to payment for work done. Perseverance in discriminatory hiring after notice may also be made the basis for imposition of a penalty. It was recognized by all that this formula would result in priority for many union members, but as Chairman Hays observed in an opinion accompanying the award , that consequence was a "fortuitous result of the existence of a perfectly legal closed shop," and not illegal. Despite the preferred position accorded many union members under the interim award the Union continued to oppose any hiring of nonunion men before union members. On June 1, 1949, when the foreman at the Herald-Tribune, pursuant to the authority granted him in the interim award, adjudged that cer- tain recently employed union members were subordinate in seniority to some nonunion shapers, Walsh called a strike and the union members walked out. The Tribune then put the union members to work under protest. 14. The point system ; its abandonment In the meantime the adjustment board proceeded to draft a final award to replace the interim award ; a task finally completed and announced on June 30, 1949. This award spelled out a detailed and complicated procedure for the maintenance of hiring lists. In essence it continued the industry-wide seniority concept of the interim award but provided for ranking on the extra list by a system of numerical ratings ; which became known as the point system. Under this system employees were awarded points of differing values for service in the shop, in the industry, or substantially equivalent employment. In addition the award lumped regular substitutes and extras on the extra employment list. The union members of the adjustment board dissented from this award. Following the issuance of the June 30 award Chairman Hays resigned and was succeeded by Chairman Feinberg. The latter proceeded to set up lists in accord- ance with the award. These were finally completed and went into effect on September 14, 1949, over protests by the Union that they contained errors. The Union then filed an action in the New York courts to set aside the award ; in which NEWSPAPER AND MAIL DELIVERERS' UNION 607 it ultimately succeeded. The ground asserted for the court action was that the adjustment board has exceeded its authority in lumping regular substitutes and extras on the same hiring list. The lists remained in use only about 5 days. They were set aside because of union objections under the following circum- stances. On September 19, 1949, the publishers and the Union met to discuss the prob- lems raised by the Union's court action and its protests against the use of the point lists. The Union raised three objections: (1) That the lists improperly placed regular substitutes and extras oh the same hiring lists; (2) that there were errors in computation ; and (3) that provision must be made for giving employment to employees of The Interborough News Company, which had ceased business. Impartial Chairman Feinberg pointed out that there was provision for ironing out individual inequity or error. Union President Simons then threatened to strike the papers that night if the lists were used. As Mapel testified, Simons and Business Agent Walsh made the following statements, among others : SIMONS : If the publishers do not get into line, we will take the law into our own hands. I am going to put union men on tonight. s w s s s r s Everything aint going to be all right. We want our pound of flesh before the non-union men. If it has got to come to a fight, we will fight, we got a good army ! There aint going to be any union men turned away tonight, and I am giving the orders. s s r s s s s WALSH : That is all I want to hear Joe. You give the order tonight, I will walk the men tonight. SIMONS, You have my order. If a paper wants a man, the paper should call the union: I am telling Walsh in front of all of you that union men go to work tonight . . . you better be prepared tonight. i • • # i * # If the union is in wrong with the Taft-Hartley Act let Washington get us on the ball ! • r s s * • • I am putting you on notice that those bundles won't have feet on them tonight, and that is that. Chairman Feinberg said that any individual who claimed prejudice because of his standing on the list would be interviewed and any injustice rectified. He further warned the union officials that he would enforce the contract's no-strike clause to the hilt. Nevertheless Business Agent Walsh said, Mapel testified, that he was "going to the shops tonight to see that no nonunion men went to work, if a union man did not have work." "No union man will go away without a job." Faced with a threat of shutdown the publishers suggested that the Union file a formal grievance and that the adjustment board set aside the point system and return to the interim award pending further study by Chairman Feinberg. This was done, and on the same evening the adjustment board set aside the June 30 award and reinstated the interim award. Individual grievors were thereafter interviewed under Chairman Feinberg's supervision but there is no evidence of any further action with respect to the point system award. On November 10, 1949, the Union struck the Daily News for 1 hour and 28 minutes to compel the preferential hiring of certain union members. The Daily 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD News filed a grievance with the adjustment board and asked compensatory and punitive damages for violation of the no-strike clause of the contract . Damages were ultimately awarded by the board in the amount of $1,500. B. Events at the Times In January 1950 , the New York Sun suspended publication , throwing into un- employment a number of employees in its distribution department , all of whom were members of the Union . Walsh, ill a conversation on January 6, 1950, told Bogart of the Herald-Tribune that at a meeting of the Sun chapel on January 5, 1950, the Sun's displaced delivery men were divided into groups and assigned to the remaining papers. He further informed Bogart that no union members were assigned to the Herald-Tribune but that in any event that paper could not hire nonunion men because no other paper could. Bogart inquired what would happen if nonunion men were hired and Walsh replied that there would be a "revolution." He mentioned the News award against the Union in the sum of $1,500 and said that such a penalty meant nothing to the Union when compared to "300 starving men." He also stated that there would be "murder" at the Times if the latter insisted on hiring nonunion men and that neither the Taft- Hartley Act nor the "interim award" made any difference compared to the dilemma of the Sun men. A number of displaced Sun employees appeared at the Times distribution room and shaped. They were hired in preference to nonunion men and on the same basis as the other union employees in the room . Union men were hired first, including those from the Sun . Only after all union men were accommodated were nonunion men hired. Thereafter the Times consistently followed the system of hiring union men first, including the Sun men, up until February 14, 1951. The next event of im- portance took place about October 19, 1950. On that date there occurred the tenth meeting of the joint scale committee at which representatives of the pub- lishers, including those of the Times, and Simons, president of the Union, and Business Agents Walzer and Walsh, and others were present. The purpose of the meeting was to arrive at a tentative agreement between the Union and the publishers inasmuch as it was toward the end of the 1948 contract. Andrew Fisher, on behalf of the Times , stated that it was important that the 5 x 5's who were currently working for the Times and who had seniority at the various plants and some of whom had filed charges with the Board, should be taken care of, and that the purpose of the Times was to work out a nondiscriminatory hiring provision and "clean up" the situation presented by the expiring contract. He stated that the position of the Times was that it would not agree to make any new situation holders on the basis of industry -wide seniority but that they should be made from the list of employees who had achieved 5 x 5 in the Times shop. Simons, on behalf of the Union , said that if the Union could not get a hiring clause satisfactory to it the Union would "know what to do in the end" and that those nonunion persons who did not like the hiring clause could go to the Board, stating again the position of the Union that no nonunion man would go to work before a union man. Various suggested hiring proposals were made by representatives of the Times, the publishers , and the Union which were not agreed to, and the meeting broke up with Walsh 's statement "to hell with law and order, as long as union men go first." The subject of an acceptable hiring clause was further explored 2 or 3 days later at another meeting, and after much discussion a stipulation was arrived at continuing the hiring practices under the old contract until December 10, NEWSPAPER AND MAIL DELIVERERS' UNION 609 1950, and referring a new clause to arbitration. Professor Hays, who has been previously mentioned, was agreed upon as arbitrator along with Duker for the Union and Carter for the publishers. Duker and Carter were to work out an acceptable hiring clause if possible and if they failed the matter was to be referred to Hays. At the end of 1 week Hays was called in and on December 8, 1950, the three arbitrators came down with an unanimous finding which was to constitute section 4 of the new contract and which according to the stipula- tion would become a part thereof automatically. The award was lengthy but the gist of it was that hiring lists in each paper were to be created which combined seniority in the shop with certain factors outside of the shop but which would eventually result in a strict shop seniority basis of hiring under lists which were to be promulgated by the impartial chairman of the adjustment board and which were to be revised periodically by him. In spite of the agreement that this manner of hiring agreed upon by the three- man arbitration board should become a part of the new contract, the Union at a meeting voted not to accept it. Simons gave as reason for the rejection that it was felt that it should be modified so as to provide for industry-wide seniority in the long run rather than shop seniority. This suggestion was rejected by the publishers. After discussion, however, they agreed to certain modifications of language to he made by Hays and Duker and submitted to the publishers. Another meeting of the joint negotiating committee was held on the evening of January 4, at which representatives of all the parties were present and a simplified version of the award was agreed upon. The matter was referred to the union membership by mail and another meeting was held of the Union on January 7, and the simplified award was again rejected. Another meeting of the parties was held on January 9, at which representatives of the publishers reproached the union officials, charged them with sabotaging the agreement. Simons protested that the union membership simply would not "buy" the agree- ment chiefly because of the industry-wide seniority provision. 1. The agreement and a quota plan of hiring Another meeting of the parties was held on January 16, 1951, and after much discussion and a review of the past difficulties between the parties, a new approach was suggested. This was essentially that of Duker. Duker analyzed the problem in essence as that of there being too few regular situa- tion holders on the various papers and a consequent large number of extras hired at each shapeup His proposal was that a substantial number of new situation holders with regular employment be created at the papers. At a meeting on January 23, 1951, Duker submitted a draft of hiring clause which called for a type of industry-wide seniority and the creation of original hiring lists, but which broke down sharply into strict shop seniority as of revision date, which he suggested should be 6 months later. The problem was explored further at a further meeting on January 24 and 25. Duker's suggestion and the discussion of the parties resulted in a more con- crete proposition which was that a substantial number of new situations be created to be occupied in the ratio of 60 union men to 40 nonunion men. At a subsequent meeting the idea was developed further and the quota formula virtually agreed upon. The basis for the selection of the augmented number of regular situation holders was the original date of their employment ; the Union was to select the union men who were to get the regular jobs in each shop, and the publishers were to select the nonunion men. This arrangement would leave the publishers free to give regular situations to, among other people, 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those who had filed charges with the Board or others against whom there may have been discrimination because of their lack of union membership. The publishers approved this agreement during the last few days of January 1951, and on the 29th, it was ratified by the Union. It was agreed that the situations would be created between January 29 and February 15 and that lists of situation holders pursuant to the agreement would be compiled , the Union to determine by February 5 or 7 the number of union members to receive permanent situations . The publishers' lists were to be completed by the same date. Two lists were to be made, one of permanent situation holders and one of extras. In pursuance to the agreement the news- papers selected the number of nonunion 5 x 5's who were to become new permanent situation holders and submitted to the Union the names of the union employees so that the Union might select the union men who were to become new situation holders. In practice the nonunion situation holders selected by the newspapers amounted to something under 40 percent . Thus at the Times 45 new situations were to be created , 29 of whom were to be union and 16 nonunion , and at the Mirror 84 situations , of which 73 were to be union and 11 nonunion. Several days followed after the newspapers had submitted the lists of new situation holders and extras to the Union , during which time the Union was unable or unwilling to make the selection of union members for the new situations. During this period the Union took exceptions to some of the nonunion men selected by the newspapers in spite of the agreement that the newspapers were to select the nonunion situation holders and the Union the union situation holders. Although the Union managed to complete its work in making the selections on some of the newspapers , they failed to do so on the Journal American , the Times , the Mirror, and the Herald-Tribune within the time agreed. The Publishers Association insisted that the lists must he back in their hands on Monday, February 12, 1951 , inasmuch as the lists were to be posted and go into effect on February 15, and in the event of ties in the lists the ties were to be broken on February 13 by lot under the auspices of the honest ballot association . The upshot of it was that, although by February 13 the Union had returned to the Publishers Association the list of extras so that the ties thereon could be broken by the 13th , it had failed to make its selection of the union permanent position holders. In view of this failure the four newspapers themselves made the selections from the same lists which had been furnished the Union of union members, 5 x 5's. The ties were broken on February 13. Upon the completion of this lists of extras were drawn up and sent to the various publications so that they might hire from them on the evening of February 14, for the morning newspapers of the 15. The breaking of the ties was unilateral since no representative of the Union put in an appearance. 2. The posting of the lists ; the resulting strike; resumption of the status quo The lists were posted on the night of February 14, in the offices of the morning newspapers . They were (1) the list of regular situation holders, (2) the list of new situation holders, and (3) the list of extra employees. The regular situation holders scheduled to work that night at the Times were selected from their list and then the needed extra employees from the extra list. The presses started to roll about 10:45 p. in., the papers came up to the delivery department , and the men, standing at the conveyors supplied the conveyors. That was as far as it went . None of the union employees handled any newspapers nor did any other of their assigned tasks. Lospinuso, NEWSPAPER AND MAIL DELIVERERS ' UNION 611 the Union's representative, told Fisher, the Times' representative, that the men refused to work, and that it would be necesary to go back to the "status quo." Shortly after the presses started up they were shut down again be- cause the papers were accumulating in the delivery room. Fisher suggested that he and other officials from the Times and Carter , of the Publishers Association, together with representatives of the Union should go to the office of Adler, general manager of the Times, which they did. Lospinuso told those assembled in Adler's office what he had told Fisher, that the union men would not go to work unless the Times returned to the status quo hiring conditions. Fisher asked Lospinuso what union men he wanted to replace the nonunion men who had signed up, and Adler suggested that the two of them , Fisher and Lospinuso, get together and work it out. Lospinuso and Fisher went back to the delivery department where the former directed Assistant Foreman Lauletti to replace the nonunion men who had signed up with union men of Lospinuso's choosing, and gave instructions that if the paper could be got out with the nonunion men working, to do so, but that if not the nonunion men should be sent home. At 11 : 23 p. in., after the presses had been shut down for 38 minutes, they started up again . As it eventuated, the nonunion men who had signed up to work that night were permitted to work, but beginning with the following night, February 15, the old practice of hiring union men first and then only nonunion men was resumed and continued until April 13, 1951. During this period, as a rule, some nonunion men who had been appointed regular situation holders on February 14, were put to work, although this resulted in continuous overstaffing . To do this it was also necessary for a period to employ an equivalent number of union men over and above those needed. 3. The restraining order On April 10, 1951, Judge Vincent Leibell of the United States District Court of the Southern District of New York, issued a restraining order restraining the Union from interfering with the hiring practices at the Times, the Mirror, and the News, and affirmatively ordering them to refrain from interfering with those papers in filling situations under the arrangement made on Januray 25, 1951, and in hiring "extras" from the lists posted on February 14. The petition for the restraining order was filed by James A. Jaffee, the Acting Regional Director for the Second Region . Within 48 hours thereafter hiring procedures were re- sumed under the lists posted on February 14, and such continued to be the hiring practice to the date of the hearing. C. Events at the Mirror The events at the Mirror closely parallel those at the Times and the other news- papers. Thus, the occurrences at the Times on January 6, 1950, and February 14 and 15, 1951, found their counterpart at the Mirror . There is this difference, however. At the Mirror, at least 11 nonunion employees in the delivery room had for sometime not been required to shape. These employees had regular start- ing times, regular days off, and a schedule of 5 workdays each week. Upon the appearance in the Mirror's delivery room of displaced Sun employees on January 6, Walsh demanded that they be given preference over these 11 em- ployees, and called a work stoppage to enfore the demand. Their assurance of days off and their regular starting time were taken away and they were re- quired to shape. Thenceforth they were hired only after all nonunion men were taken care of. When the lists were posted at the Mirror on February 14, pursuant to the agreement between the Publisher's Association and the Mirror, previously de- 242305-53-40 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribed, the union members struck in the same fashion as they did the same night at the Times, and with the same result. After February 14, 1951, and to the date of Judge Leibell's decision on April 10 of that year , the lists were dis- regarded and union men were consistently given preference in hiring to the detri- ment of nonunion men with equal or greater seniority. Conclusions The foregoing findings of fact serve to show that the Respondent Union has continued up to the date of the hearing to pursue the course of conduct which the Board in the Hearst Publications , Herald-Tribune, and Daily News cases found to be violative of the Act. In brief, this course of conduct was designed to insure that at all times , so far as circumstances permitted, at the New York Times and the Daily Mirror, as well as at the other of the New York papers, union members should have preference in employment over nonmembers and that no nonunion employee should go to work until union members had been hired, irrespective of their seniority as employees . This policy has continued, as previously , to be enforced by strikes and threats of strikes . It would serve no useful purpose to elaborate on what is by now a thrice told tale. The extent to which the Union was prepared to, and did , go in enforcing its policy of union men first, is vividly illustrated in the events of February 14 and 15, 1951. Here, after a long controversy arising out of the Union's practices , the Union and Em- ployer's Association arrived at an agreement to create a number of new situations and a sharing of them on a quota basis between members and nonmembers of the Union. As it worked out the Union 's share in these new situations was even more favorable to it than the previously agreed upon quota, favorable though that was. That agreement was clearly illegal in that irrespective of its "fairness," it sought to condition employment upon membership or nonmembership in the Union outside of the proviso in Section 8 (a) (3) of the Act. It substituted a lesser method of discrimination for a greater one. I find it fruitless to seek to allocate the legal responsibility for this agreement. Regardless of who was its father and who its mother it is clear that the issue was illegitimate. In entering into this agreement the Union violated the Act. It may not be found that the Times and the Mirror did so solely because that precise issue is not in litigation , those two papers having effected a settlement with the Board and not being parties in this case. Whatever may be said of the legality of the agreement , and it was clearly illegal , nevertheless it was be- lieved by both parties to it that it offered a practical opportunity to compose the differences between them . Nevertheless the Union , whether because of internal union pressure or otherwise is irrelevant, denounced this agreement when it was sought to put it into operation, and when it became apparent that certain non- union members would be given regular positions and other nonunion members would be in a more favorable position than theretofore for work as extras. The Union struck , the Times and the Mirror capitulated to this pressure , and the agreement came to nothing . The old practice of hiring all union men before any nonunion men was hired, regardless of seniority was resumed until Judge Leibell's decision on April 10, 1951. There is only one other contention of the Union which I find necessary to dis- cuss. That is, in substance , that it would now be unfair to apply the usual remedy of back pay and make it operative solely against the Union inasmuch as in previous cases the liabilty was found to be joint and several and back pay as- sessed accordingly and equally. The Union contends that the settlement with the Board by the Times and the Mirror resulted in a wholly inadequate reim- bursement of the employees concerned and that is also the position of some of the NEWSPAPER AND MAIL DELIVERERS' UNION 613 individual complainants. The Respondent Union contends that because of the settlement with the Times and Mirror it may now be called upon to pay more than its "fair share" of any back pay awarded. So far as the Union is concerned it doubtless could have arrived at a similar settlement. Having elected instead to litigate the matter, it may not now be heard to say that the ultimate amount of pecuniary damage which it might sustain would be greater than that sustained by the Times and the Mirror. So far as the named individuals are concerned it need only be said that the Board does not litigate their private rights. The Board having effected a settlement of the matter it is not in my province to dissent from it. It is abundantly clear that the Respondent Union has continued its insist- ence upon a pattern of discrimination and that as a result all nonunion em- ployees in the Times' and Mirror's delivery departments who were nonmembers of the Union have been discriminated against as a class. The Board, however, in the Herald-Tribune and News cases, held that a general finding of discrimina- tion was not enough to sustain the allegations of the complaint with respect to the named individuals where only the general pattern of discrimination was shown, contrary to the position asserted by the General Counsel who contended that the remedy should be extended to encompass, in addition to those named in the complaint (as to whom the Trial Examiner found discrimination), all other nonunion men who "shaped" the publications during the pertinent period. The Board limited its finding of discrimination to those nonunion individuals shown by the record to have been actually denied employment when they shaped on spe- cific occasions in favor of men with less seniority who shaped and were hired be- cause they were union members. Although the matter has given me some concern, I do not find that the Board meant by its language that it was necessary to establish that, as against all other nonunion men, the particular nonunion complainants would have been certain to receive employment. In this view, it is not necessary for the General Counsel to show that the particular nonunion man who presented himself for employment on any particular night and was refused, had in fact greater seniority than all other nonunion men not named in the complaint. In other words, as I interpret the Board's order, if any single individual named in the complaint showed up for employment on any single night and was not hired when some union man with less seniority was hired, the former was discriminated against, even though, absent discrimination, some other nonunion man not named in the complaint would, on the basis of seniority, have obtained work instead of the individual nonunion man named in the complaint. Accordingly, I have examined the record 2 as well as the testimony of witnesses, and I find that with respect to all of the individual employees at the Times, included in the complaint, on one or more occasions each of such individuals showed up for employment and was refused when some union man with less seniority was hired I find the same with respect to the Mirror with the excep- tion of Sidney Rosenthal, as to whom it does not appear that he presented himself for employment and was refused employment when some union man with less seniority went to work. As I have previously found, discrimination at the Mirror with respect to 11 employees was compounded. That is, not only were they sub- jected to the same discrimination as at the Times, but in addition the privileges of regular employment, regular starting time, and regular days off, which had 2 Particularly General Counsel's Exhibits Nos 50, 51, and 79, pertaining to the Times and Nos 52 and 53 pertaining to the Mirror, as well as the testimony of numerous nonunion witnesses to the effect that they were present for hiring and various occasions when union men with less seniority were hired and they themselves "walked." 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously been accorded to them, was, upon the presentation at the Mirror of a number of Sun displaced employees, union men, on January 6, 1950, removed from them. I find that by threatening to strike and by striking the Times and the Mirror, as related above, for the purpose of compelling them to give preferential hiring privileges to union members solely on the basis of union membership, by entering into its agreement with the publishers on January 25, 1951, and thereafter, until April 10, 1951, failing to give effect to this lesser discriminatory program, the Union has attempted to cause and has caused them to discriminate against employees, including those named in the complaint, which in a proper case, would be found to be a violation of Section 8 (a) (3) of the Act; the Union therefore violating Section 8 (b) (2) of the Act. It is further found that the Union thereby, in violation of Section 8 (b) (1) (A) of the Act, also restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. There is, however, an additional and unusual situation presented by this record. The settlement stipulation reached with the Times was dated November 15, 1950. The Board's order, pursuant thereto, was issued on January 10, 1951. On January 18, 1951, a consent decree of the United States Court of Appeals for the Second District was entered. The settlement stipulation with the Mirror was entered into in December 1950, the Board's order followed, and the court decree was entered February 6, 1951. Both settlement stipulations, orders, and decrees provided that the Times and the Mirror should cease discrimination against nonunion employees except as such might be authorized by agreement requiring membership in the Union pursuant to the provisions of Section 8 (a) (3) of the Act (the union-shop proviso). Nevertheless the Times and the Mirror, in derogation of the stipulations, the Board's orders, and the court's decrees, shortly after the entry of the decrees negotiated the quota agreement with the Union, previously referred to. This agreement was, on its face, invalid since it predicated hiring on a percentage arrangement contrived by the parties them- selves outside the provisions of Section 8 (a) (3) of the Act. The Regional Director did not go into the circuit court to seek enforcement of its decree, by contempt proceedings or otherwise. On the contrary, he filed a petition for a restraining order with Judge Leibell, requesting that the Union be compelled to abide by this illegal agreement pending the final adjudication of the instant case by the Board. The restraining order issued on April 10, 1951.8 The Union has complied with the court's order and up to the date of hearing hiring at the Times and Mirror has been conducted pursuant to this quota agreement. In any words, hiring is now done in accordance with an agreement which is illegal and only less discriminatory than the "union men first" basis previously insisted upon by the Union. It is done under the compulsion of the restraining order. Under these circumstances I cannot recommend the usual back-pay remedy during the period following April 10, 1951, since to do so would be to recommend that the Union make whole the employees discriminated against during a period when, by court order, the Union is compelled to discriminate against them While 8 The order restrained the Union , among other things, as follows : (4) from doing any acts, such as those listed in paragraphs (1), (2) and (3) of this order, to prevent or interfere with the publishers of said newspapers , the Times, the News, and the Mirror, in filling the additional regular situations created by said publishers , with men heretofore listed by the publishers for said positions on February 14, 1951, under an arrangement with the union on January 25, 1951 ; and (5) from doing any acts, such as those listed in paragraphs (1) (2) and (3) of this order , to prevent or interfere with the publishers of the Times , the News, and the Mirror in hiring "extras" from and pursuant to or list promulgated and posted by the said publishers on or about February 14, 1951, under an arrangement made with the union on January 25, 1951. NEWSPAPER AND MAIL DELIVERERS' UNION 615 it is true that previous to the agreement of January 25, the Union had persisted in a course of discrimination greater in degree than the discrimination provided for in the agreement of January 25, and did not abandon its former course in spite of its agreement until compelled to do so by the restraining order, it might be concluded that, absent this order, it would have pursued the same course to date. I do not believe, however, that this can be presumed. It might be that, absent the restraining order, the Union would have abandoned any type of dis- crimination against nonunion employees. IV. THE REMEDY It having been found that Respondent Union has engaged in and is engaging in unfair labor practices, it will be recommended that it cease and desist there- from 4 and take certain affirmative action necessary to effectuate the policies of the Act. Having found that the Union has attempted to cause and has caused the Times and the Mirror to discriminate in regard to the hire and tenure of employment of the following named persons, it will be recommended that the Union notify the Times and Mirror in writing that it has no objection to the nondiscrimina- tory employment of these individuals ; and further, that, within 5 days after the vacation of Judge Leibell's order of April 10, 1951, it request the Times and the Mirror to offer them employment without discrimination because of their nonmembership in the Union and without prejudice to their seniority and other rights and privileges : The Times Arthur Finkelstein Alfred Frankel Carl Galdson Theodore Gershowitz Martin Igle Edward Johntry Nicholas Lauletti Patrick Leonard William McCloskey Francis Meade John Minogue Eugene Rose The Mirror Nick LaForgia Joseph LaForgia Melvin Lavietes Salvatore Baldanza Harry Koenig Meyer Traven Denny Izzi Edward Guerin Meyer Sacks Joseph Riley Carl Citrano John Nicolini, Jr. It will be further recommended that the Union make these individuals whole for any losses of pay incurred by reason of the attempt to cause and causing the Times and the Mirror to discriminate against them, by payment to each of them of a sum of money equal to the amount he would normally have earned as wages from July 18, 1948, to April 10, 1951, less his net earnings during this period. From this sum should also be deducted any sum which was paid or offered these individuals by the Times and the Mirror in settlement or attempted settlement of the case against them. Also should be deducted such sums as would normally have been deducted from their wages for deposit with State and Federal agencies on account of social security and other similar benefits and 4 The respondent is not precluded from complying with this Intermediate Report because of the restraining order. That order, true enough, remains in effect until the Board has decided the issues. But Section 10 (c) of the Act provides that if no exceptions are filed to the Trial Examiner's report within 20 days after service thereof the report shall become the order of the Board . Hence, dissolution of the restraining order would be only a matter of formalities. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to pay over these sums to the appropriate State and Federal agencies for the credit of the discriminatees. Under the recommended remedy, back pay shall not accrue from April 10, 1951, the date of Judge Leibell's order, to the date of its vacation. If this order is vacated, back pay shall again accrue beginning % days thereafter unless the Union has within that time notified the Times and the Mirror that it has no objection to and permitting their employment on a nondiscriminatory basis. On the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. The New York Times Company, Inc., and the Hearst Corporation, New York Mirror Department, are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Newspaper. and Mail Deliverers' Union of New York and Vicinity is a labor organization within the meaning of Section 2 (5) of the Act. 3. By attempting to cause and causing the New York Times Company, Inc., and the Hearst Corporation, New York Mirror Department, to discriminate against the employees named in section IV, above, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] LIEBMANN BREWERIES , INC. and THE BREWERY WORKERS JOINT LOCAL ExECUrivE BOARD OF NEW JERSEY, AFL, PETITIONER. Case No. 2-RC-4706. November 26, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Leonard J. Lurie, 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, Styles, and Peterson]. Upon the entire record in this case, the Board finds : 1. Prior to the end of 1950 Liebmann Breweries, Inc., a New York corporation engaged in the production of Rheingold beer, owned and operated two breweries and a number of depots and branches, includ- ing a depot at Newark, New Jersey. About the end of 1950 the com- 101 NLRB No. 117.