The Item Co.

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