News Syndicate Co., Inc.

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD feurs of executives, siuperintendents, majordomos, timekeepers, head mechanics, professional sugar boiler operators and their helpers, technical employees, office messengers, watchmen, guards, foremen, and supervisors. as defined in the Act. [Text of Direction, of Election4 omitted from publication.] _ * As the Employer's operation is seasonal, we direct that the election be held at or near the, peak of the 1959. season on a specific date to be determined by the Regional Director among the employees in- the appropriate unit who will be employed ' during the payroll period immediately. preceding the' date of issuance of notice of election. Tropicana Products, Inc., 122 NLRB 121. News Syndicate Company, Inc. and Burton Randall and Pub- ..lishers' Association of New York City, Party to the Contract New York Mailers' Union No. 6, International Typographical Union, AFL-CIO and Burton Randall and Publishers' Asso- ciation of New York City, Party, to the Contract New York Mailers' Union No. 6, International Typographical Union, AFL-CIO and Julius Arrigale and The Wall Street Journal, Dow Jones & Company, Inc., Publisher, Party to the Contract and Publishers' Association of New York City, Party in Interest. Cases No. 2-CA-4967, 2-CB-1769, and 2-C13-1807. January 2, 1959 DECISION AND ORDER On April 15, 1958, Trial Examiner Louis Libbin issued his Intermediate Report in the above-entitled, consolidated proceeding finding that News Syndicate Company, Inc., the Respondent Com- pany, and New York Mailers' Union No. 6, International Typo- graphical Union, AFL-CIO, the Respondent Union, had engaged in and were engaging in certain unfair labor practices and recom- mending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent Union and its parent organization, International Typographical Union, AFL- CIO,' an Intervenor herein, jointly filed exceptions to the Inter- mediate Report and a supporting brief. The General Counsel filed exceptions to some portions of the Intermediate Report and a brief in support of those exceptions; the General Counsel's brief other- wise supported portions of the Intermediate Report to which he did not except. On October 21, 1958, the Board heard oral argu- ment; the General Counsel and Unions participated. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. i Hereafter, jointly called the Unions. 122 NLRB No. 92. NEWS SYNDICATE COMPANY, INC. 819 The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, the oral argument; and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as here- after. modified .2 1. The Trial Examiner found that the Respondent Union, the Respondent News, and The Wall Street Journal (Dow Jones) "have maintained and enforced an arrangement, understanding and prac- tice whereby the News and Dow Jones are required to, and do, maintain and enforce unlawful closed shop and preferential em- ployment conditions, and delegate to the ... [Respondent Union], . . . the maintenance and control of employment seniority and priority for mail room employees." The Trial Examiner thereupon concluded that the Respondent News and the Respondent Union, respectively, violated Section 8(a) (1) and (3) Section 8(b) (1) (A) and .(2) of the Act. In reaching this conclusion, however, the Trial Examiner found it unnecessary to determine "whether the operation of the apprentice system and of the contract provisions relating to competency are each per se unlawful." The General Counsel has excepted to the Trial Examiner's failure to make that determination .-3 The Board adopts the Trial Examiner's conclusion that Respond- ent News and Respondent Union have violated the Act by their practice of maintaining "unlawful closed shop and preferential em- ployment conditions" and delegating to the Respondent Union "con- trol of employment seniority and priority for mail room employees." The Board does not, however, agree with the Trial Examiner's find- ing that it is unnecessary to decide whether the operation of the apprenticeship and competency systems are also unlawful. The Respondents' illegal practice, as found by the Trial Exam- iner, consisted fundamentally of permitting only the Respondent Union's members to hold certain relatively regular jobs in the mail- rooms and of favoring other members for less regular jobs which were filled by "shape-up" hiring. In order to continue and pre- serve that practice, the Respondents also developed procedures for maintaining a flow of the Respondent Union's members to fill job openings in the mailrooms. Those procedures were inextricably a part of the illegal practice and critical to its perpetuation; those procedures were the apprenticeship and competency systems. Thus, a The Board hereby corrects 3 inadvertent typographical errors appearing in the Inter- mediate Report : ( 1) The cases herein were consolidated for purposes of heating on July 29, 1957; ( 2) during the 1956 vacation period, the chapel chairman at the wall Street Journal mailroom called other shops for outside card men, who were then hired (not fired ,, as stated in the Intermediate Report ) ahead of nonunion men ; and (3) Arrigale was hired by the wall Street Journal for a total of 22 shifts . in 1956. 1 3 The General :Counsel has not,, however ; questioned- the legality ; of the provisions of the collective-bargaining ,, contract involved in this case which are the source of the apprenticeship and competency systems. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the collective-bargaining agreement involved in this proceeding pro- vides that only journeymen and apprentices shall be employed in the News and Wall Street Journal mailrooms. During the critical period covered by the unfair labor practice charges filed herein, a mailroom worker could reach journeyman status by but two access routes-either by completing an apprentice training program or by passing a qualifying (competency) examination. Review of the apprentice training program at the News and Wall Street Journal mailrooms shows that, in practice, the Respondent Union gave initial approval to all persons seeking to enter the mailers' trade as apprentices. The approval was exercised through the mailroom foremen who had exclusive control of hiring appren- tices. The foremen, in turn, were under the control of the Re- :spondent Union because of their contractual obligation to remain members in good standing of that Union.4 Review of the operation of the competency system shows that the examination for prospective journeyman was given by "impartial examiners qualified to judge journeyman competency." The "im- partial examiners" were, in fact, officials of the Respondent Union and the mailroom foremen. As stated above, those foremen had to be members in good standing of the Respondent Union. Thus, the "impartial examiners"' who gave the competency tests were all under the control of the Respondent Union.5 It is also enlighten- ing that, when the Respondent Union decided that more journey- men were required for work in the mailrooms, the prescribed 6-year apprenticeship training program was substantially curtailed to per- mit apprentices to take the competency test. Thus, apprentice trainees, all of whom had the Respondent Union's prior stamp of approval, were permitted to achieve journeyman status in less than their prescribed training period. Upon the above-described facts and the entire record herein, the Board is convinced that the operation of the apprenticeship and competency systems were the initial devices whereby the Respond- ents assured to the Respondent Union control over the flow of new employees into the Employers' mailrooms. The Board finds that by the operation of the apprenticeship and competency programs in the News and Wall Street Journal mailrooms, the Respondent News and the Respondent Union gave unlawful preference for jobs to members of the Respondent Union, thereby also, respectively, violat- ing Section 8(a) (1) and (3) and Section 8(b) (1) (A) and. (2) of the Act. 4 The two foremen of the News and Wall Street Journal mailrooms have, in essence, admitted that their exclusive control over hiring in their mailrooms conformed to the hiring practice herein found to be unlawful. 6 In this regard, the record fails to reveal a single worker given the competency test who was not a candidate for membership in the Respondent Union. NEWS SYNDICATE COMPANY, INC. 821 2. The Trial Examiner found that the provision in the Re- spondent Union's bargaining agreement with Respondent News and the Wall Street Journal which required mailroom foremen to be members of the Respondent Union was for the unlawful purpose of maintaining "closed shop and union controlled hiring practices" -in view of the prevailing unlawful hiring practices in the mail- rooms. The General Counsel has expected. He asserts that the contract provision requiring mailroom foremen to be ITU members, considered together with the obligations of ITU members contained in the ITU's general laws and constitution and in the Respondent Union's constitution and bylaws, constitute unlawful control of employee hiring, without reference to the unlawful hiring practice. Under the terms of the contract, including various incorporated portions of the ITU's general laws, (1) the Employers were limited by their bargaining agreement to hire only active members of the Respondent Union as mailroom foremen; (2) the Respondent Union had the power to control the foremen's actions because the foremen had to be members of the Union in good standing obligated to comply with the Union's constitution and bylaws; and (3) the fore- men had exclusive authority to hire employees in the Employers' mailrooms. Such provisions establish that the News and the Wall Street Journal had "virtually divested themselves of their hiring and placement functions . . . and abdicated such functions to the Respondent Union ... ;" and they constitute an agreement delegat- ing to the Union exclusive control over mailroom hiring.6 As that agreement does not satisfy the Mountain Pacific7 standards for a lawful exclusive hiring agreement in favor of a union, the Board finds that the contract provisions establishing the hiring agreement are unlawful as written-that is, without reference to the hiring practice in effect in the News and Wall Street Journal mailrooms.8 THE REMEDY The Trial Examiner found that the Respondents discriminatorily reduced Randall's Friday and Saturday night job seniority and recommended that Randall's seniority be restored "to that which he held . . . prior to the discrimination practiced against him on 8 Houston Maritime Association, Inc., et at., 121 NLRB 389. 7 Mountain Pacific Chapter of the Associated General Contractors, Inc., et at., 119 NLRB 883. 8 The Unions assert that the Trial Examiner erred in finding unlawful the Employers' contractual delegation of control over employee seniority and job priority to the Respond- ent Union, because, the Unions claim, the contract clauses pertaining to employee seniority and priority are subject to arbitration and, therefore, are not under the Re- spondent Union's exclusive control. We reject this contention because the disputed clauses appear in the ITV's incorporated general laws, and the contract, on its face, states that the "General Laws of the International Typographical Union shall not be subject to arbitration." The arbitration provision referred to by the Unions pertains generally to clauses appearing on the face of the contract and covering wages and conditions of employment. 822 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD June 10 ... 1956." However, as he believed that the General Coun- sel did not prove that the subsequent diminution in Randall's Fri- day and Saturday overtime work was directly due to the discrimi- natory reduction of Randall's seniority, the Trial Examiner did not recommend back pay for Randall for his overtime loss. The General Counsel has excepted. The Board finds merit in the Gen- eral Counsel's exception in view of the Respondents' discrimination against Randall9 and his subsequent loss of overtime work, and in the absence of any other reasonable explanation for Dandall's loss of overtime. It may be difficult to compute Randall's back pay for the Friday and Saturday overtime he lost; however, that is no basis for failing to remedy the Respondents' unlawful discrimination against Randall. We shall, accordingly, order that the Respondent News and the Respondent Union, jointly and severally, make Ran- dall whole for any loss of Friday and Saturday night overtime work which he has suffered since June 10, 1956, because of the Respond- ents' discrimination against him. As the Trial Examiner did not find that Randall's loss of over- time work after June 10, 1956, was attributable to the Respondents' discrimination against him, we shall not hold the Respondents accountable for any back pay for overtime which Randall lost be- tween the issuance of the Intermediate Report and this Decision and Order. The back pay shall be computed in accordance with the formula promulgated in F. W. Woolworth Company, 90 NLRB 289. During the oral argument held in this proceeding, the General Counsel requested the Board to apply its Brown-Olds remedy10 and require the Respondents to reimburse employees for the initiation fees and dues which they have paid to the Respondent Union. With regard to the General Counsel's request, the record shows that, by the unlawful provisions of the contract involved herein, the Re- spondents have unlawfully encouraged employees to join the Respondent Union in order to obtain and maintain work in the Respondent News and the Wall Street Journal mailrooms, thereby inevitably coercing those employees to pay initiation fees and dues to the Respondent Union. It would defeat the purposes and policies of the Act to permit the Respondent Union to retain the payments a In adopting the Trial Examiner's finding that the Respondents discriminatorily re- duced Randall 's seniority, the Board , unlike the Trial Examiner , does not rely upon material set forth in a prehearing affidavit signed by Rotenberg , the mailroom super- intendent for the Respondent News. The record independently establishes the Respond- ents' discrimination against Randall , without reference to Rotenberg's affidavit. Indeed, in its consideration and resolution of the facts herein, the Board has not relied upon any material set forth in various affidavits obtained by field examiners from other witnesses who appeared and testified at the hearing in this case. m The remedy derives its name from United Association of Journeymen & Apprentices of Plumbing d Pipefitting Industry of the United States and Canada, Local 2 31, AFL-CIO, at al. (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594. NEWS SYNDICATE COMPANY,, INC. - ^ - ' - . - 823 of those initiation fees and dues, which have been unlawfully ex- acted from employees. As part of the remedy, therefore, the 'Board will order the Respondents, jointly and severally, to refund to the employees in the Respondent News mailroom, and the Respondent Union, alone, to refund to the employees in the Wall Street Journal mailroom, the initiation fees, dues, or any other moneys illegally extracted from them. The Board believes that this remedy of re- imbursement is appropriate and necessary to expunge the coercive effect of the Respondents' unfair labor practices. The Respondents' liability for reimbursement shall include the period beginning 6 months prior to the filing and service of the charges herein and shall extend to all moneys thereafter collected.11 As recommended by the Trial Examiner, the Board will order the Respondents to cease maintaining or enforcing those provisions of the contract involved herein which have been found to be violative of the Act. However, the parties hereto are hereby notified that the Board, in this proceeding and in this Decision and Order, has considered only the provisions of the disputed contract which have been placed in issue by the parties. No provisions of the disputed contract other than those alleged to be unlawful by the General Counsel have been ruled upon in this Decision and Order.12 ORDER Upon the entire record in the case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent Company, News Syndicate Company, Inc., its officers, agents, successors , and assigns, shall: 1. Cease and desist from : (a) Executing, giving effect to, maintaining, or enforcing, the provisions of a written agreement with New York Mailers' Union No. 6, International Typographical Union, AFL-CIO, or main- taining or enforcing any arrangement , understanding or practice ' u Los Angeles-Seattle Motor Express, Incorporated, 121 NLRB 1629 ; N.L.R.B. v. Broderick Wood Products Company, et al., 261 F. 2d 548 (C.A. 10). "In the course of the hearing , the General Counsel conceded that the Respondent News and the Respondent Union acted in good faith in executing the bargaining agree- ment involved in this proceeding . The Unions assert that the General Counsel's con- cession removes actual unlawful motivation as an element in the parties ' execution of the contract. Upon that assertion , the Unions contend that the absence of such actual unlawful motivation precludes a finding that the Respondents , respectively, violated Section 8(a) (3) and ( b) (2) of the Act . The Board rejects the Unions' contention because violations of those sections depend upon reference to the consequences which flow from the conduct of parties charged with violating them, not upon the parties' intent or motivation. Indeed, the Supreme Court has expressly stated, in the context of alleged violations of Section 8(a) (3) and ( b) (2), ". . . it did not matter that . . . [ the re- spondents ] . . . did not intend to discourage [union] membership since such was a foreseeable result." The Radio Officers' Union of the Commercial Telegraphers Union, A.F.L. (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17, 45. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the above-named Union, under which employment in its mail- room is conditioned on union membership, preference in employ- ment is accorded to union members, or the control and maintenance of the employment seniority and priority, apprenticeship training, or competency testing systems is delegated to said Union, except where, and to the extent that, such condition of employment may be lawfully established by an agreement in conformity with Section 8(a) (3) of the Act. (b) Enforcing or giving effect to any contract provision requir- ing mailroom foremen or superintendents, who do the hiring, to be union members, unless and until said foremen and superintendents have been directly informed by the above-named Union that they are not obligated to comply with specified provisions of the Inter- national Typographical Union, AFL-CIO, general laws or the said Mailers' Union's constitution and bylaws calling for closed shop or union preferential hiring. (c) Encouraging membership in or support of the above-named Union, or any other labor organization of its employees, by dis- riminating against employees , or applicants for employment, in any manner in regard to hire, tenure, or terms and conditions of em- ployment, except to the extent permitted under Section 8(a) (3) of the Act. (d) In any other manner interfering with, restraining, or coerc- ing its employees, or applicants for employment, in the exercise of rights guaranteed by Section 7 of the Act, except for the extent that such rights may be affected by an agreement permitted under Sec- tion 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Specify, in the current contract with the above-named Union, that the provisions of the International Typographical Union, AFL- CIO, general laws which are found illegal herein are not incorporated therein, and specify which of the provisions of the general laws are incorporated therein, and currently operative. (b) Notify all mailroom employees that they are not bound to follow the specific provisions of the International Typographical Union, AFT.-CIO, general laws which call for closed shop or union preferential hiring. Such notice shall be in addition to that con- veyed by the posting of the notices specified in paragraph A. 2(f) of this Order. (c) Restore the seniority status of Burton Randall to that which he held on all nights prior to the discrimination against him on June 10 and July 22, 1956. (d) Make whole Burton Randall for loss of earnings he has suf- fered on June 10, 1956, and thereafter , as a result of the discrimi- NEWS SYNDICATE COMPANY, INC. 825 nation against him, as provided for in "The Remedy" section of the Intermediate Report as amended by "The Remedy" in this Decision and Order. '(e) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due under the terms of this Order. (f) Post, at its place of business in New York, New York, copies of the notices hereto attached marked "Appendix A" and "Appendix B.1113 Copies of said notices, to be furnished by the Regional Direc- tor for the Second Region, shall, after being duly signed by author- ized representatives of the respective Respondents, be posted by the Respondent Company immediately upon receipt thereof, in conspicu- ous places, including all places where notices to its mailroom em- ployees are customarily posted, and maintained by it for a period of sixty (60) consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for the Second Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. The Respondent Union, New York Mailers' Union No. 6, In- ternational Typographical Union, AFL-CIO, its officers, representa- tives, agents, successors, and assigns, shall: (1) Cease and desist from : (a) Executing, giving effect to, maintaining or enforcing, or caus- ing or attempting to cause the News Syndicate Company, Inc., or The Wall Street Journal, Dow Jones & Company, Inc., or any other publisher in New York City, to execute, give effect to, maintain or enforce, the provisions of a written agreement, or maintaining or enforcing any arrangement, understanding or practice with the said Companies, or any other publisher in New York City, under which employment in the mailrooms of said publishers is conditioned on union membership, preference in employment is accorded to union members, or the control and maintenance of the employment senior- ity and priority, apprenticeship training, or competency testing sys- tems is delegated to the Respondent Union, except where, and to the extent that, such condition of employment may be lawfully estab- lished by an agreement in conformity with Section 8(a) (3) of the Act. (b) Enforcing or giving effect to any contract provision requir- ing mailroom foremen and superintendents, who do the hiring, to '3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be union members, unless and until said foremen and superintend- ents have been directly informed by Respondent Union that they are not obligated to comply with specified provisions of 'the Inter- national Typographical Union, AFL-CIO, general laws and Re- spondent Union's constitution and bylaws calling for closed shop or union preferential hiring. . (c) Causing, or attempting to cause, the above-named Companies, or any other publisher in New York City, unlawfully to discrimi- nate against mailroom employees, or applicants for employment, in any manner in regard to hire, tenure, or terms and conditions of employment, except to the extent permitted by Section 8(a) (3) of the Act. (d) In any other manner restraining or coercing employees of, or applicants for employment by, the above-named Companies, or any other publisher in New York City, 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 under Section 8(a) (3)• of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Specify, in the current contract with the above-named Com- panies, that the provisions of the International Typographical Union, AFL-CIO, general laws which are found illegal herein are not incorporated therein, and specify which of the provisions of the general laws are incorporated therein, and currently operative. (b) Notify all its members that, in connection with their employ- ment in the News mailroom, in The Wall Street Journal mailroom of Dow Jones, or in the mailroom of any other publisher in New York City, they will not be bound to follow the specific provisions of the International Typographical Union, AFL-CIO, general laws which call for closed shop or union preferential hiring. Such notice shall be in addition to that covered by the posting of the notices specified in paragraphs B. (2) (e) and (f) of this Order. (c) Make whole Burton Randall for loss of earnings he suffered on June 10, 1956, and thereafter, as a result of the discrimination against him, as provided for in "The Remedy" section of the Inter- mediate Report as amended by "The Remedy" in this Decision and Order. (d) Make whole Julius Arrigale for loss of earnings he suffered on September 18 and 19, 1956, and may have suffered on any other night since March 18, 1956, as a result of the discrimination against him. (e) Post in conspicuous places in its business offices in New York, New York, copies of the notice hereto attached marked "Appendix NEWS SYNDICATE COMPANY, INC. 827 B.714 Copies of said notice, to be furnished by the Regional Direc- tor for the Second 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. (f) Additional copies of the notices, hereto attached as Appendix B, shall be signed by a representative of the Respondent Union and forthwith returned to the Regional Director for the Second Region. These notices shall be posted by the News Syndicate Company, Inc., in places where notices to its mailroom employees are customarily posted. These notices shall also be posted, The Wall Street Journal, Dow Jones & Company, Inc., willing, in places where notices to its mailroom employees are customarily posted. (g) Notify the Regional Director for the Second Region in writ- ing, within ten (10) days from. the date of this Order, what steps the Respondent Union has taken to comply herewith. C. The Respondent Company, News Syndicate Company, Inc., its officers, agents, successors, and assigns and the Respondent Un- ion, New York Mailers' Union No. 6, International Typographical Union, AFL-CIO, its officers, representatives, agents, successors, and assigns, shall, jointly and severally, reimburse the employees and former employees employed in the mailroom of the Respondent Company for moneys illegally exacted from them in the manner and to the extent set forth in "The Remedy" section of this Decision and Order. The Respondent Union, its officers, representatives, agents, successors, and assigns shall reimburse the employees and former employees employed in the mailroom of The Wall Street Journal, Dow Jones & Company, Inc., for moneys illegally exacted from them in the manner and to the extent set forth in "The Remedy" section of this Decision and Order. 14 See footnote 13. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT execute, give effect to, maintain or enforce, the provisions of a written agreement with New York Mailers' Union No. 6, International Typographical Union, AFL-CIO, nor will we maintain or enforce any arrangement, understand- 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, or practice with the said Union, under which employment in our mailroom is conditioned on union membership, preference in employment is accorded to union members, or the control and maintenance of the employment seniority and priority, ap- prenticeship training, or competency testing systems is delegated to said Union, except to the extent permitted by Section 8(a) (3) of the Act. WE WILL NOT enforce or give effect to the provisions in our agreement with the above-named Union, requiring mailroom foremen or superintendents, who do the hiring, to be union members, unless and until said foremen and superintendents have been directly informed by said Union that they are not obligated to comply with specified provisions of the Interna- tional Typographical Union, AFL-CIO, general laws or the above-named Union's constitution and bylaws calling for closed shop or union preferential hiring. WE WILL NOT encourage membership in or support of the above-named Union, or any other labor organization of our em- ployees, by discriminating against employees, or applicants for employment, in any manner in regard to hire, tenure, or terms and conditions of employment, except to the extent permitted by Section 8(a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees, or applicants for employment, in the ex- ercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement permitted under Section 8 (a) (3) of the Act. WE WILL specify, in our current agreement with the above- named Union, that the provisions of the International Typo- graphical Union, AFL-CIO, general laws which have been found by the National Labor Relations Board to be illegal, are not incorporated therein, and specify which of the provisions of the general laws are incorporated therein and currently operative. WE WILL notify all our mailroom employees that they are not bound to follow the specific provisions of the International Typographical Union, AFL-CIO, general laws which call for closed shop or union preferential hiring. WE WILL restore the seniority status of Burton Randall to that which he held on all nights prior to the discrimination prac- ticed against him on June 10 and July 22, 1956. _"TE WILL make whole Burton Randall for loss of earnings which he has suffered on June 10, 1956, and thereafter, as a re- sult of the discrimination against him, and in accordance with the Board's direction. NEWS SYNDICATE COMPANY, INC. 829 WE WILL refund to all our employees and former employees who have remitted initiation fees, or periodic dues or other mon- eys illegally extracted from them to New York Mailers' Union No. 6, International Typographical Union, AFL-CIO, the amount of such payments, and in accordance with the Board's direction. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the National Labor Relations. Act, as amended. NEWS SYNDICATE COMPANY, INC., 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 NEW YORK MAILERS' UNION No. 6, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, AND TO EM- PLOYEES OF NEWS SYNDICATE COMPANY, INC., AND THE WALL STREET JOURNAL, Dow JONES & COMPANY, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT execute, give effect to, maintain or enforce, or cause or attempt to cause News Syndicate Company, Inc., or The Wall Street Journal, Dow Jones & Company, Inc., or any other publisher in New York City, to execute, give effect to, maintain or enforce, the provisions of a written agreement, nor will we maintain or enforce any arrangement, understanding or practice with the above-named Companies, or with any other publisher in New York City, under which employment in the mailrooms of said publishers is conditioned on union member- ship, preference in employment is accorded to union members, or the control and maintenance of the employment seniority and priority, apprenticeship training, or competency testing systems is delegated to our Union, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT enforce or give effect to the provisions in our agreement with the News Syndicate Company, Inc., or The Wall Street Journal, Dow Jones & Company, Inc., or with any 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other publisher in New York City, requiring mailroom fore- men or superintendents, who do the hiring, to be members of our Union, unless and until said foremen and superintendents have been directly informed by our Union that they are not obligated to comply with specified provisions of the International Typo- graphical Union, AFL-CIO, general laws and our constitution and bylaws, which call for closed shop or preferential hiring. WE WILL NOT cause or attempt to cause News Syndicate Com- pany, Inc., or The Wall Street Journal, Dow Jones & Company, Inc., or any other publisher in New York City, unlawfully to discriminate against mailroom employees, or applicants for em- ployment, in any manner in regard to hire, tenure, or terms and conditions of employment, except to the extent permitted by Section 8(a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employ- ees of, or applicants for employment by, the above-named Com- panies, or any other publisher in New York City, in the exer- cise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement permitted under Section 8 (a) (3) of the Act. WE WILL specify, in our current agreement with the above- named Companies, that the provisions of the International Typographical Union, AFL-CIO, general laws which have been found by the National Labor Relations Board to be illegal, are not incorporated therein, and specify which of the provisions of the general laws are incorporated therein and currently operative. WE WILL notify all our members that, in connection with their employment in the mailrooms of the above-named Companies, or in the mailroom of any other publisher in New York City, they will not be bound to follow the specific provisions of the International Typographical Union, AFL-CIO, general laws which call for closed shop or union preferential hiring. WE WILL make whole Burton Randall for loss of earnings he has suffered on June 10, 1956, and thereafter, as a result of the discrimination against him in connection with his employment in the mailroom of the News Syndicate Company, Inc., and in accordance with the Board's direction. WE WILL make whole Julius Arrigale for loss of earnings he suffered on September 18 and 19, 1956, and may have suffered on any other night since March 18, 1956, as a result of the dis- crimination against him in connection with his employment in the mailroom of The Wall Street Journal, Dow Jones & Com- pany, Inc. WE WILL refund to all the employees or former employees employed in the mailrooms of the News Syndicate Company, NEWS SYNDICATE COMPANY, INC. _ . 831 Inc., and the Wall Street Journal, Dow Jones & Company, Inc., the initiation fees, or periodic dues, or any other moneys illegally extracted from them, which they have paid to our union, and in accordance with the Board's direction. NEw YORK MAILERS' UNION No. 6, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed in Cases Nos. 2-CA-4967 and 2-CB-1769 by Burton Randall, an individual herein called Randall, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York, New York), issued a consolidated complaint, dated September 10, 1956, against Respondent News Syndicate Company, Inc., herein called News, and against Respondent New York Mailers' Union No. 6, International Typographical Union, AFL-CIO, herein called Mailers. Thereafter, on July 29, 1957, a consoli- dated amended complaint was issued against the News and the Mailers. The Publishers' Association of New York City, herein called the Publishers, was named as a Party to the Contract in the amended complaint. The complaint, as amended, alleged that News had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) and that Mailers had engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the National Labor Rela- tions Act, 61 Stat. 136, herein called the Act. Upon charges filed in Case No. 2-CB-1807 by Julius Arrigale, an individual herein called Arrigale, the General Counsel, by the Regional Director for the Second Region, issued a complaint, dated July 22, 1957, against Respondent Mailers. Dow Jones & Company, Inc., herein called Dow Jones, publisher of The Wall Street Journal, herein called Journal, was named as a Party to the Con- tract, and Publishers was named as a Party in Interest. This complaint alleged that Mailers had engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. In their duly filed answers, Respondents News and Mailers denied the unfair labor practice allegations. On July 31, 1957, the above cases were consolidated for purposes of hearing. A motion to intervene in all these cases, filed by International Typographical Union, AFL-CIO, herein called ITU, was granted on August 15, 1957. Pursuant to due notice, a hearing was held in New York City, on various dates between November 12 and 21, 1957. Respondents News and Mailers, Intervenor ITU, and Publishers, the Party to the Contract, were each represented, and af- forded full opportunity to be heard, to examine and crossexamine witnesses, to introduce relevant evidence, to present oral argument, and to file briefs as well as proposed findings of fact and conclusions of law. Respondent News' motion .to dismiss the complaint, upon which I reserved ruling, is disposed of in accord- ance with the findings of fact and conclusions of law made below. Subsequent to the hearing, each Respondent, the ITU, and the General Counsel filed briefs 'which I have fully considered. Upon the entire record 1 in the case, and from my observation of the witnesses, I make the following: 3I hereby note and correct the following inconsequential but obvious typographical errors in the typewritten transcript of the testimony : On page 62, 1. 7, "ahead" is cor- rected to read "after"; on page 74, 1. 20,. "1956" is corrected to read "194611; on page 832 DECISIONS. OF NATIONAL. LABOR '.RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES INVOLVED Respondent News, with its principal office and plant in New York City, is en- gaged in the publishing, of a daily newspaper call6d.-the. New York: Daily.News. Dow Jones & Company, Inc., herein called Dow Jones, with its principal office and place of business in New York City, is engaged in New York City and in various plants located in other States in the publishing of a daily newspaper called The Wall-Street Journal, herein referred to as the Journal. The record shows, and I find, that the News and Dow Jones are engaged in commerce within. the meaning of the Act for the purposes of the Board's asser- tion-of jurisdiction in this proceeding. _.. _. _..., _ .... II.- THE LABOR ORGANIZATIONS. INVOLVED The `record shows, and I' find, that' Mailers and ITU are each labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A brief resume of the previous cases involving the ITU may be helpful to an understanding of the issues involved in this proceeding. On October 28, 1949, the Board issued a Decision,2 adopting the Trial Examiner's findings that the intended and actual effect of the ITU's collective-bargaining policy, following the passage of the Taft-Hartley Act, was to compel employers to exclude nonmembers from employment. The Board found that the ITU's bargaining programs, specifically the conditions of employment strategy and the 60-day contract strategy, violated the Act because they represented coercive pressures by the ITU upon employers, designed to compel bargaining to effect the maintenance of the closed-shop condi- tions which existed before the effective date of the 1947 amendments to the Act. About the same time, similar findings were made by the Board in the Chicago Typographical Union, Local No. 16, et al. (American Newspaper Publishers Asso- ciation) case (86 NLRB 1041). Board orders in these two cases were enforced by the Court of Appeals for the Seventh Circuit (193 F. 2d 782). On February 25, 1948, Judge Swygert of the District Court of Indiana issued a decree, enjoin- ing the ITU generally from giving effect to, and instructing local unions to give effect to, any collective-bargaining policy which in any manner discriminated against employees in regard to hire or tenure of employment because of non- membership in the ITU.3 Upon the Board's petition, in October 1948, to adjudge the ITU in contempt of this decree, Judge Swygert found the ITU in contempt on some but not all of the Board's contentions (81 F. Supp. 675). The 1TU cases hereinabove mentioned involved contract demands covering com- posing room operations. The cases in the instant proceeding involve the mail- room operations. Generally, the work of the mailroom begins when the news- papers come off the presses, and comprises the addressing, bundling, tieing, and other handling of the papers, preparatory to placing them aboard trucks for deliv- ery to newsdealers, trains, or the post office. The instant cases raise issues con- cerning the validity of provisions embodied in executed contracts covering mail- room employees and operations, of employment practices in the mailrooms of the News and Journal, and of the treatment of two specific employees in these mail- rooms. A. The written agreements The News and Dow Jones are, and have been, parties to a collective-bargaining agreement with the Mailers, the terms of which, so far as material to the allega- tions in the complaints, have been in effect since December 26, 1955. The com- plaints allege, and the General Counsel contends, that by maintaining and exe- cuting agreements which contain provisions requiring the News and Dow Jones to hire only members of the Mailers, to give preference in employment to members of the Mailers, and to delegate to the Mailers the maintenance of the seniority and priority systems of the mailroom employees of the News and the Journal, 177, 1. 7, "wasn't" is corrected to read "was"; on page 277, 1. 18, "II" is corrected to read "III" ; on page 454, 1. 5, is corrected to insert "not" between the words "may" and "be" ; on page 922, 1. 20, "2-CB-74" is corrected to read "9-CB-74." 21nternational Typographical Union et al. (American Newspaper Publishers Associa- tion), 86 NLRB 951. 2 Evans v: International Typographical"Union, 76 F: Supp. '881. ' NEWS SYNDICATE COMPANY, INC. 833 Respondent News has violated Section 8 (a) (1) and (3) of the Act and Respondent Mailers has violated Section 8(b)(1)(A) and (2) of the Act.4 The provisions which the General Counsel attacks fall into two categories; (1) those which appear on the face of the contract itself; and (2) certain general laws of the ITU which are asserted to be incorporated in the contract by reference. 1. ITU General Laws incorporated by reference Section 24 of the contract in effect when the present charges were filed provides, in pertinent part, as follows: It is understood and agreed that the General Laws of the International Typo- graphical Union in effect January 1, 1955, not in conflict with this contract or with federal or state law shall govern relations between the parties on con- ditions not specifically enumerated herein. Section 24 of the current contract, in identical language, provides that the general laws in effect January 1, 1957, shall govern and that, from December 8, 1956, to January 1, 1957, the 1956 ITU laws shall govern. The General Counsel contends that under this section, the following laws of the ITU are incorporated into the contract and create unlawful conditions of employ- ment: 5 ART. III, SEC. 12: It is the unalterable policy of the ITU that all . . . mail- ing room work or any machinery or process appertaining . . . to mailing .. . belongs to and is under the jurisdiction of the ITU. Subordinate unions are hereby directed to reclaim jurisdiction over and control of all . . . mailing room work . . . now being performed by non-members. ART. V, SEC. 11: All persons performing the work of foremen or journey- men, at any branch of the printing trade, in offices under the jurisdiction of the ITU, must be active members of the local union of their craft and entitled to all the privileges and benefits of membership. ART. V, SEC. 12: The ITU recognizes only two classes of labor in union shops, journeymen and apprentices. ART. VII, SEC. 1: . None but members [of the ITU] shall be permitted to operate, maintain and service any mailing machinery or equipment when used on work under the jurisdiction of the ITU .. . ART. VII, SEC. 2: In machine offices under the jurisdiction of the ITU, no person shall be eligible as a "learner" on machines who is not a member of the ITU ... . ART. VIII, SEC. 1: All machine tenders and machinists, members engaged in the adjustment, repair, and maintenance of all mechanical devices used in the performance of . . . mailing room work shall be members of the ITU . . All work pertaining to maintenance and care of machines is to be performed exclusively by machine tenders who are journeymen or apprentice members of the ITU. ART. X, SEC. 1: Persons considered capable as substitutes by foremen shall be deemed competent to fill regular situations, and the substitute oldest in continuous service shall have prior right in the filling of the first vacancy .... ART. X, SEC. 2: Subordinate unions shall establish a system for registering and recording priority standing of members in all chapels, which shall be conspicuously posted or kept in a place within the chapel accessible to mem- bers at all times. The priority standing of a member shall stand as recorded. ART. X, SEC. 5: Any member engaged to serve the International Typo- graphical Union, a subordinate union or to perform work in the interest of the organized labor movement, or any member incapacitated by illness, shall not be deprived of priority standing while so employed or so incapacitated. Such member shall employ while absent the priority substitute competent to perform the work if one is available. The situation holder shall not suffer loss of situation or priority in the event such a substitute is not available. After thirty calendar days the situation shall be filled by priority sub, and 4 AS no charge was filed against Dow Jones , it is not included in the complaint as a Respondent. 5 The record contains the general laws appearing in the ITU Book of Laws for 1955, 1956, and 1957. The general laws set forth in the text are the same for each of these years but may appear in an article or section bearing a different number. For clarity and convenience, all references will be to the general laws found in the 1957 Book of Laws. 505395-59-vol. 122-54 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered in the category of a new situation . Upon reporting for duty full priority rights shall be restored. ART. X, SEC. 6: Available priority substitute competent to perform 'the work must be employed on any new situation created because of the absence of a situation holder from his or her situation for more than thirty calendar days, and whose priority is protected under the provisions of other sections of I. T. U. laws or contracts: Provided, should a substitute with greater priority become available such substitute shall be placed on said situation: Provided further, local unions may establish by contract, for the purpose of avoiding multiple changes in preferred shifts and starting times, for the em- ployment of the available priority substitute after thirty calendar days and continuing to but not more than ninety calendar days from absence of situa- tion holder. ART. I, SEC. 3: . . . upon application for apprenticeship all such [mailer and machinist] apprentices must subscribe for, and complete the Course of Lessons in Unionism within 90 days from date of registration ... . Woodruff Randolph, president of the ITU, explained that the general laws of the ITU contain those union laws governing wages, hours, and working conditions "to which we ask employers to subscribe as being the essence of the union shop." The "union shop" referred to by Mr. Randolph is not the union shop contemplated by the amended Act but is "one employing only members of the union on work processes covered by our jurisdiction." That this pre-Taft-Hartley concept was still in current use is demonstrated by Randolph's speech to the annual convention of the ITU on August 17, 1957, in which he stated, among other things, that "since 1944 we have had a nationwide struggle with employers to maintain our general laws as a basis of union shop operations," and by similar usage of the term "union shop" in its closed-shop sense in the July 1957 edition of the ITU's official magazine. The general laws, hereinabove set forth, relate to three subject matters: (1) union security; (2) the establishment and control by the local union of a system of employment priority and seniority among union members; and (3) a course in unionism for apprentices. An examination of the contract discloses that these matters are not specifically enumerated therein. Thus, while section 1 of the contract defines "employees" as "journeymen and apprentices" and section 5 pro- vides that only journeymen and apprentices shall be employed, the contract's defi- nition of journeymen in section 20-b contains no language relating to membership or nonmembership in the Mailers. Similarly, the contract's definition of the Mailer's jurisdiction in section 2 contains no reference as to whether the work is to be done by members or whether nonmembers may also be permitted to do the work. While it is clear that union membership is not made a condition of achieving the status of a journeyman, the contract contains no provision with respect to the membership or nonmembership requirements once journeyman status has been achieved. Nor does the contract contain any specific provisions concern- ing the operation of a priority or seniority system, the hiring order of employees, or as to whether hiring or employment is to be governed by union membership or nonmembership. Finally, the requirement that apprentices must complete a course in unionism is not among the requirements prescribed in the contract by the Joint Apprenticeship Committee for the training of apprentices. It is thus apparent that the general laws, hereinabove set forth, embody condi- tions not specifically enumerated in the contract. It is also apparent that these conditions do not conflict with, but rather supplement, the terms already in the contract. In agreement with the General Counsel, I find that the general laws, hereinabove set forth, have been incorporated by reference into the contract. It is clear that the contract, when read in conjunction with the incorporated general laws, creates unlawful closed shop and preferential hiring conditions. As the incorporated general laws require all journeymen to be active union members, the term "journeymen" in the contract must be held to refer only to journeymen who are union members. Hence, section 5, whereunder the employers agree to employ only journeymen in their mailrooms , constitutes nothing less than a closed- shop provision. The contract thus restricts to members the work tasks enumer- ated in the definition of the Mailers' jurisdiction. The incorporation of the general laws concerning the priority system establishes that system which governs employment priority and seniority of mailroom em- ployees under the sole charge of the Mailers. Under section 33-c of the contract, the general laws are not subject to arbitration . The Board has held that a con- NEWS SYNDICATE COMPANY, INC. 835 tract clause which delegates to a union complete control over matters affecting seniority is unlawful.6 In line with these decisions, I find that the delegation contained in the incorporated general laws is equally unlawful. There remains for consideration the incorporated general law requiring appren- tices to subscribe for and complete a course of lessons in unionism. Randolph testified that this course consists of the history of the ITU, its policies, and prin- ciples. He further testified that this provision applies only to apprentices who apply for apprentice membership at the beginning of their second year, when they first become eligible for such membership. In the absence of any contrary evi- dence, I regard this as a reasonable construction, not at variance with any other provisions. So construed, this provision merely contains a requirement for be- coming, an apprentice member. As apprentices are not required to be members as a condition of employment,? I find nothing unlawful in this provision. The General Counsel, presumably disagreeing with this construction, contends that the imposition of such a requirement, despite the fact that most, if not all, apprentices may desire membership in the ITU, is a violation of Section 8(b) (1) (A) because it restrains and coerces said apprentices in the exercise of their right to refrain from engaging in that kind of activity .8 I have no doubt that taking a course in unionism is a concerted activity pro- tected by Section 7 of the Act. There is no contention nor claim that the lectures contain coercive remarks. The issue then, on the General Counsel's theory, is whether the compulsory aspect of the requirement constitutes restraint or coercion within the meaning of Section 8(b)(1)(A). I believe not. The Board has held that Section 8(c) and its legislative history makes it clear that the "compulsory audience" doctrine enunciated in the Clark Bros. Co., Inc., case (70 NLRB 802) no longer exists as a basis for finding unfair labor practices and that the employer did not violate the Act by compelling his employees to attend and listen to an antiunion speech.9 Under this decision, it would not be unlawful restraint or coercion, in my opinion, for an employer to require as a condition of employment that his employees listen to lectures on the evils of unionism or of a specific union. As Section 8(c) applies with equal force to Section 8(b)(1)(A), I find that the requirement in this clause does not, in any event, constitute unlawful restraint or coercion and hence is not violative of the Act. 2. Provisions appearing on the face of the contract Section 4 of the contract provides that: Superintendents and Foremen and Assistant Foremen of mailing and Delivery Departments shall be appointed and may be removed by the Publishers, and shall be members of New York Mailers' Union No. 6. Section 20-a provides that: The operation, authority, and control of each Mail Room shall be vested exclusively in the office through its representatives, the Foreman. Foremen of Mail Rooms have the right to employ help and may discharge (1) for in- competency, (2) for neglect of duty, (3) for violation of office rules, . which shall in no way abridge . . . their rights under accepted 1TU laws, and (4) to decrease the force. . Employees considered competent as substi- tutes by Foremen shall be deemed competent to fill regular situations. . . . Section 20-b provides that: The Foreman shall do all the hiring and discharging of all employees engaged in working in the various Mail Rooms. The Foreman shall have sole au- thority to issue orders. . Only journeymen and apprentices shall be em- ployed on work covered by this agreement. 'International Brotherhood of Teamsters, etc., Local No. 41 (Pacific Intermountain Express Company), 107 NLRB 837, 838; North East Texas Motor Lines, Inc., 109 NLRB 1147, 1148; Chief Freight Lines Company, 111 NLRB 22, 32; Kenosha Auto Transport Corporation, 113 NLRB 643. 7 Cf. The Kansas City Star Company, 119 NLRB 972. .B Although not specifically alleged in the complaint, the General Counsel stated his position with respect to this provision early in the hearing and the issue has been litigated and briefed. 9 The Babcock & Wilcox Co., 77 NLRB 577, 578. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 20-c provides: The Union shall not discipline the Foreman for carrying out the instructions of the Publisher or his representative in accordance with this agreement. The General Counsel does not contend that the mere requirement that superin- tendents and foremen be members of the Mailers is, without more, violative of the Act. It is, however, the General Counsel's position that this requirement, when taken in conjunction with the obligations of members set forth in the ITU's consti- tution and general laws and in the Mailers' constitution and bylaws, constitutes a prima. facie violation of the Act. In support of his position, the General Counsel relies on the following testimony and provisions: President Randolph testified that foremen are expected to be members in good standing of their particular local and to abide by article 12 of the ITU's consti- tution. This article provides, in pertinent part, that it is a member's duty "to com- ply with all the laws, rules, regulations and decisions of the ITU and of any subordinate union thereof to which the member may belong and to support both in furthering the interest of the Union in legal manner and by legal means, . . . to accord courtesy, fair treatment and cooperation to other members in the carry- ing out of the duties of membership.. . The men responsible for the mailroom hiring in the instant cases, Rottenberg, mailroom superintendent of the News, and Emery, mailroom foreman of the Journal, are members of the Mailers in good standing; both admitted that they try to abide by the Mailers' constitution and bylaws and the ITU's constitution, bylaws and general laws. The General Counsel also points to the following provisions of the Mailers' constitution: Art. I, sec. 7 provides, after an enumeration of the various work tasks "apper- taining to mailing," that "no person except members and apprentices of this Union shall be allowed to perform such work." Art. III, sec. 1 states that "Each member of this Union is obligated to support, abide by, enforce and maintain the Constitution, By-Laws, Rules and Regulations of this Union." Other provisions restricting mailroom work to members are section 1 of article XVI providing that "none but journeymen members of this Union shall be allowed to operate any mailing machine" and various other machines described "or any other machine that may hereafter be introduced." Section 2 of the same article provides: "Members of this union shall handle and deliver all papers and books wrapped, stamped, inserted or tied by such machines." Because of his duty to cooperate with other members in carrying out the duties of membership, the General Counsel further contends that the following sections also govern the foreman as a member: Article XV, duties of [Chapel] chairman,1° section 4, provides that the chairman "shall see that none but members of New York Mailers' Union No. 6 are em- ployed in his Chapel.. . Section 7 of the same article provides that "under no circumstances shall the Chairman allow the office to work short handed if pos- sible to obtain a Union substitute." This last provision is implemented by article Xl, section 7 of the Mailers' bylaws providing that "Foremen shall give the Chair- man of the Chapel ample time to procure a substitute for an absent regular." The Board has held that where an employer entrusts his hiring to foremen who are members of a union and bound by the union's laws, which provide for closed- shop conditions, the employer thereby in effect agrees with the union to operate under closed-shop conditions." In any event, I am convinced that, in view of the unlawful employment practices followed in the mailrooms of the News and the Journal, as hereinafter set forth in detail, the purpose and effect of the clause requiring superintendents and foremen to be union members is to maintain the closed-shop and union controlled hiring practices. Accordingly, under the circum- stances disclosed by this record, I find this clause to be violative of the Act. 3. Respondents' contentions (a) Effect of the savings clauses As previously shown, section 24 of the contract provides for the incorporation by reference of those general laws "not in conflict with this contract or with 10A chapel chairman is comparable to a union steward. The mailrooms of the News and Journal are each a chapel. "Enterprise Industrial Piping Company, 117 NLRB 995, 996. NEWS SYNDICATE COMPANY, INC. 837 federal or state law." Section 38 of the contract states that should "any provision of this agreement at any time during its life be in conflict with Federal or State law or regulation, then such provision shall continue in effect only to the extent permitted." The contract on its last page, in extremely fine print difficult to de- cipher, is approved by President Randolph, "as being in compliance with the laws of the International Typographical Union, as limited by the Taft-Hartley Law." Article XIV of the general laws provides that "in circumstances in which the enforcement or observance of provisions of the general laws would be contrary to public law, they are suspended so long as such public law remains in effect. The flyleaf of the Mailers' constitution and bylaws contains the following lan- guage which, the Mailers asserts, constitutes notice to members that they need not observe those provisions of the constitution and bylaws which conflict with the Act: This Constitution and these By-Laws apply under normal conditions and any provision herein which is found to be contrary to ITU Laws, or by authori- tative determination to be contrary to Civil Laws, shall not be enforced until such laws are changed to permit the intended application of the laws herein. The Mailers and the ITU contend that the foregoing clauses neutralize any unlawful provisions and prevent any general laws violative of the Act from being incorporated in the contract by reference. I do not agree. None of the clauses refers to, or suspends, the operation of any specific provi- sions of the contract, general laws, or Mailers' constitution and bylaws. The testi- mony is undisputed that neither the ITU, the Mailers, nor the publishers of the News and the Journal issued any instructions to the effect that any particular pro- vision in the above documents was not to be followed as being violative of the Act. As stated in the General Counsel's brief, these clauses "represent nothing more than pious hopes, recitals that the parties do not intend to violate the law, and instruction to employees and members not to do anything unlawful." Under these circumstances, the Board a$d the courts have held that general savings clause of this type, may reasonably be construed as contemplating the enforcement of all provisions until such time as they are declared illegal by an appropriate tribunal and hence do not have the effect urged by Respondents.12 The ITU contends in its brief that it is absurd to assume that any employee or applicant "will first read the agreement with the close attention of a lawyer in the General Counsel's office and conclude, like him, that the agreement is valid on its face; that his attention will then be attracted to Section 24 of the agreement; that, undissuaded by the ,not in conflict with law' proviso, he will then search out a copy of the ITU Gen- eral Law, and, ignoring the provisions of Article XIV, will feel himself `restrained or coerced' by the possible future illegal application of one or another law." But this is precisely the vice inherent in these savings clauses. The theory underlying the decisions cited in the footnote is that an employee cannot be expected to under- stand the scope of these clauses and therefore, if only as a hedging device against a possible future upholding of the provisions, will feel compelled to comply with all of them. Moreover, even if the savings clauses may be regarded as creating an ambiguity as to the incorporation of the general laws, which I do not believe they do, this ambiguity must be resolved in favor of the construction herein found, in view of the unlawful employment practices employed at the News and the Journal, as hereinafter detailed.13 12 See, e.g., Unique Art Manufacturing Co., 83 NLRB 1250, 1252 ("any provision of the contract which is contrary to any Federal or State Law is null and void") ; Reading Hardware Corporation, 85 NLRB 610, 611 ("This article shall be binding on the com- pany only in so far as the law of the United States of America and the Commonwealth of Pennsylvania allows it to perform") ; N.L.R.B. v. Gaynor News Company, Inc., 197 F. 2d 719, 723-724 (C.A. 2), affd. 347 U.S. 17 ("To the best knowledge and belief of the parties this contract now contains no provision which is contrary to federal or state law or regulation. Should, however, any provision of this agreement, at any time during its life, be in conflict with.federal or state law or regulation, then such provision shall con- tinue in effect only to the extent permitted.") ; N.L.R.B. v. Red Star Express Lines of Auburn, Inc., 196 F. 2d 78, 80 (C.A. 2) ("all clauses that are affected by the [T-I3] law shall be considered null and void. . . ... ) ; Gottfried Baking Co., Inc., et at. v. N.L.R.B., 210 F. 2d 772, 777, 780 (C.A. 2) ("If, . . . the closed shop is in conflict with the law, then the union shop shall prevail in such case together with such additional provisions for union security as shall be legally permissible, it being the intention of the parties to grant the maximum union security permitted by law."). 13 Utah Construction Co., 95 NLRB 196; N.L.R.B. v. Scientific Nutrition Corporation, 180 F. 2d 449 (C.A. 9). 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) The contention that the word "members" as used in the general laws should be read "journeymen" President Randolph testified that the word "members" in the general laws has been changed to read "journeyman" wherever it relates to terms and conditions appearing in a contract. Nowhere in the general laws is there any specific provi- sion to support this interpretation. Nor has the ITU informed its locals or mem- bers of such an important change. Mailers' President Smollen testified that he does not remember ever having been notified by the ITU that "members" should be taken to mean "journeymen." Nor does the constitution and bylaws of the Mailers reflect any such change. Randolph's contention that the general savings language of article XIV of the general laws accomplishes this transformation, is obviously without merit. Randolph's further testimony that under article X, section 2 of the general laws, directing subordinate unions to establish a system for registering and recording priority standing of members in all chapels, the word "members" means "journey- men" and that the priority system operates on that interpretation, is rejected be- cause it is contrary to all testimony given by representatives of the Mailers, the News, and the Journal. I find that this alleged change or interpretation is neither supported nor war- ranted by the record. (c) Mailers' contention that only the General Laws dealing with matters other than wages, hours and working conditions are incorporated by reference This contention, termed by Mailers' counsel at the hearing as "very narrow and technical," is wholly unrealistic and contrary to the ITU's own interpretation. Thus, President Randolph defined the general laws as being concerned only with "wages, hours and working conditions, to which we ask employers to subscribe as being the essence of the union shop." And in the ITU's instructions to locals on how to engage in collective bargaining, the identical language of section 24 of the Mailers' contract is utilized as "a standard commitment for enforcement of I. T. U. laws" relating to employment matters (p. 9 of Intervenor's Exhibit No. 9). (d) Contention that the clauses in issue were found lawful in District Court contempt proceedings against the ITU The ITU contends that the Mailers' contract is "in all respects identical" to the New York publishers agreement which, in the District Court proceeding in October 1948, was found by Judge Swygert not to be in contempt of the 10(j) injunction.14 The Board of course is not bound by any statements of Judge Swygert that certain conduct did or did not violate the Act. Judge Swygert's jurisdiction was confined first, to determining whether there was reasonable cause to believe that the ITU violated the Act, and later, to determine whether actions of the ITU were in contempt of the 10(j) injunction. Judge Swygert could not decide that any conduct was or was not an unfair labor practice affecting commerce because the Board is the sole agency empowered to make such determinations initially. Furthermore, a higher standard of proof is required to find conduct contemptuous than to find the commission of an unfair labor practice. Finally, the identical issues present in the instant cases were not litigated in the contempt proceedings. And such issues as were litigated were posed in a different posture. Nowhere in Judge Swygert's opinion is there a discussion of the effect of the incorporation clause or of the legality of the incorporated general laws. It is true that Judge Swygert found no contempt in the ITU's request that em- ployers agree to the incorporation in a contract of a clause requiring the employer to employ only union members as foremen. His finding however was based on the conclusion that "Normally, it is not to be inferred in the absence of other proof that the employment of union foremen operates, without more, to establish closed shop or preferential hiring conditions. . . (Emphasis supplied.) Al- though Judge Swygert also indicated that language similar to section 20-c of the Mailers' contract may be construed as suspending the oath which binds union members as foremen, he stated that it "is highly speculative" whether this lan- guage will result in a foreman feeling free to disregard his oath in his personal relations on behalf of his employer.15 In any event, the issue in the instant cases is not, as the General Counsel emphasizes, whether the mere contractual require- ment that foremen be union members constitutes, without more, a violation of ie Evans v. International Typographical Union, 81 F. Supp. 675, 686. 15 Ibid. at p. 684. NEWS SYNDICATE COMPANY, INC. 839 the Act. As previously found, this requirement is violative of the Act because, in view of the obligations of membership contained in the Mailers' constitution and bylaws and the ITU general laws and of the unlawful employment practices followed in the mailrooms of the News and the Journal, its purpose and effect is to maintain closed-shop and union-controlled hiring practices. Thus, even the issue with respect to the union foremen clause, which is posed and decided in the instant cases, is not the same issue which was presented to, and decided by, Judge Swygert in the District Court contempt proceedings. (e) The contention that no violations may be found because of the ITV's instructions to local unions The ITU introduced into the record documents which were sent to local unions and which contain the following instructions: (1) A document, effective January 1, 1949, which states that the ITU Executive Council "has made it clear generally that only those union laws not in violation of the Taft-Hartley Act . . . are recognized as valid by not asking that any mat- ters be governed by union laws which are in violation of any Federal or State Law." The document also notes that the "Executive Council ... has also stated that the oath of obligation of foremen is suspended insofar as it may be construed to require discrimination against nonmembers.. . It is recognized that these instructions are necessary, at least until final clarification of the legal issues in- volved in the cases now pending." (2) Documents, dated December 18, 1950, and April 1, 1951, which announce a general intention not to violate the Act and the suspension of part of the mem- ber's oath requiring discrimination against nonmembers. They also declare that provisions of the general laws contrary to public law are suspended as long as the public law remains in effect and, as an example, specify that provision which requires all composing room employees to be members of the ITU.16 (3) Notices sent out with, or attached to, sample instructions distributed by the ITU, which contain general instructions to the locals not to violate the Taft- Hartley Act. The ITU contends that no violations of the Act may be found in view of the instructions embodied in the foregoing documents. These documents appear to have been framed to meet the requirements of the 10(j) decree or the Board decisions in the previous ITU cases involving the ITU bargaining demands, and not, as does the instant proceeding, the operation of the general laws as incorpo- rated in the Mailers' contract and the practices thereunder. In general, they suffer from the same infirmity as do the savings clauses previously discussed. Thus, with the one exception, not applicable to the instant cases, the instruction not to violate the Act contain no guide to locals as to which specific provisions of the general laws should not be followed. Nor did the ITU and the Mailers notify their members as to which general laws and which sections of the Local's constitution and bylaws were in conflict with the Act. On the other hand, recent pronounce- ments of President Randolph to the effect that the action of the ITU was to pre- serve its traditional "union shop," are not qualified with any savings language. And neither the publishers of the News and the Journal, nor the Mailers took any specific action to amend their contracts to reflect the alleged change in the appli- cability of the general laws; the contracts remain in force as originally executed. In view of the foregoing factors, I find no merit in this contention. (f) The contention that the doctrine of the Pacific Intermountain Express case is erroneous and, in any event, distinguishable The ITU contends that the contract provisions which delegate to the Mailers control over seniority of mailroom employees as the basis for employment priority are not unlawful for the following reasons: The ITU argues in its brief that "priority" as used in the printing industry is the same as "seniority" as used elsewhere; that a union is entitled to bargain about this issue and reach agreement with respect to it, except one clearly discriminatory on its face; that the parties may agree that the union shall handle the entire matter or any portion of it; and that no discrimination may be presumed from such a delegation but must be specifically proven before a violation of the Act may be established. All that this adds up to is a contention, as counsel for the ITU M This is the only instance where a specific provision is pointed out. However, this provision' does not include mailroom employees, who are the ones involved in the instant cases. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD frankly admits, that the Pacific Intermountain Express Company, case, supra, is unsound and erroneous. The short answer to this is that, right or wrong, I con- tinue to be bound by this and like decisions until the Board itself changes its position or the Supreme Court rules to the contrary.17 The ITU further contends that the instant cases are in any event distinguishable because the record shows that priority allegedly depends on the length of employ- ment with a particular employer rather than on the date when union membership was acquired, as was the situation in the Pacific Intermountain case. However, the theory underlying this line of Board decisions (see cases cited in footnote 6, supra) is that the potential to discriminate to encourage union membership is inherent in a complete delegation of this subject matter to a union, which vice is not cured even by the addition of a clause that the union will settle controversies without regard to union membership. And this is so even though the priority system covers only members of the 1TU employed in the mailrooms.18 Thus, as the General Counsel points out, the provisions in the ITU bylaws (article IV, section 19) and in the constitution of the Mailers (article XV, section 15), and the testimony of President Randolph and Journal mailroom foreman, Every, concerning the union's practices of barring a man from working because of dues delinquency or because of an infraction of a union law, demonstrates that the potential exists for such unlawful discrimination by the Mailers among its members as would encourage union membership. 3. Concluding findings Upon the basis of the entire record, I find, in accordance with long and well- established precedents, that by executing, maintaining, and enforcing agreements containing provisions which create unlawful closed-shop and preferential hiring arrangements, which delegate to the Mailers complete control over matters affect- ing employment seniority and priority for mailroom employees, and which, under the circumstances disclosed by this record, require mailroom superintendents and foremen to be union members, Respondent News has violated section 8 (a)( 1 ) and (3) of the Act19 and Respondent Mailers has violated Section 8(b)(1)(A) and (2) of the Act. Under the proviso to Section 8(a)(3) of the Act, the execution of an agreement containing union-security provisions is unlawful unless, among other things, the union "has at the time the agreement was made or within the preceding 12 months received from the Board a notice of compliance with Section 9(f), (g), and (h)" of the Act. Admittedly,. neither the Mailers nor the ITU have ever complied with this section. Accordingly, I find, as further alleged in the complaint, that by executing the above-described agreements with Respondent News on December 26, 1956, and with the publisher of the Journal on May 23, 1957, additional violations of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act were committed by Respondents News and Mailers, respectively.20 B. Unlawful employment practices The complaints allege that Respondent Mailers and Respondent News and Dow Jones have maintained and enforced an arrangement, understanding, and practice, relating to hire and terms and conditions of employment of the mailroom em- ployees, whereunder the News and Dow Jones are (a) compelled and required to hire only members of the Mailers; (b) to accord preference in hiring and retention of employment to members of the Mailers; and (c) delegate to Mailers the main- tenance of the employment seniority and priority system of the mailroom em- ployees. 1. The employment practices The employment practices in effect in the New York City mailrooms, of which those at the News and Journal are typical, follow closely the provisions of the ITU general laws and the Mailers' constitution and bylaws. The priority system and the union foreman are the key factors involved in these practices, whereby the Mailers controls employment for its members and the maintenance and enforce- ment of closed-shop and union preferential hiring conditions are assured. 17 Novak Logging Company, 119 NLRB 1573; Scherrer and Davisson Logging Com- pany, 119 NLRB 1587. ' Radio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17. 19 The complaint does not allege a violation of Section 8(a) (2) of the Act. 2OKnickerbocker Plastic Co., Inc., 104 NLRB 514, 537, 515 (footnote 4) ; Tacoma Harbor Lumber and Timber Co., 108 NLRB 912, 916; N.L.R.B. v. Edwin D. Wemyss, 212 F. 2d 465 (C.A. 9). NEWS SYNDICATE COMPANY, INC. 841 The operation of the priority system is regarded as the sole function and respon- sibility of the Mailers, which is obligated to establish a priority system at all chapels. It is the duty of the chapel chairman to maintain an up-to-date priority list. Only the names of union members are permitted to appear on this list. These names are divided into two groups, regular situation holders and regular substitutes. Regular situation holders comprise the minimum crew or work force which will always be employed in the mailroom. They go to work each night without going through any formal hiring procedure. The regular substitutes take the place of absent regular situation holders and are also hired as "extras" when the size of the paper requires the employment of additional mailers. They are hired in their priority order, which is determined by the date on which the union member deposited his union card with the chapel chairman. When a member physically deposits his card with the chapel chairman, the latter automatically places his name at the bottom of the substitute priority list, and makes a note of the date on which the card was deposited. The priority list, which the chapel chairman maintains, thus contains the names of all ITU members employed or available for employment on a permanent basis in the mailroom, with their senior- ity dates. The chapel chairman gives a copy of the priority list, without seniority dates, to the mailroom foreman, who uses it as his order of hiring. He also advises the foreman of any changes in the priority list. The foreman then automatically employs the regular substitutes in the order in which they appear on the priority list. If additional help is required for the evening's work after all substitutes have been employed, the foreman then hires men from a group of individuals comprised of members and nonmembers who "shape the shop," that is, apply for work at the mailroom on either a regular or irregular basis. As among these shapers, the foreman always gives preference to individuals who are ITU members, even if they had never before worked at that particular shop, as against all nonunion shapers, including those who may have worked at that shop for years. These union shapers are known as "outside card" men, so called because their member- ship cards are deposited in different shops in which they have priority. If the foreman does not know whether a shaper is an outside card man, he will ask the chapel chairman or the shaper before hiring the full complement for the evening. At the News and the Journal, a priority of hiring exists even as among the out- side card men. Thus, for example, regular substitutes from other shops who have received less than 5 days of work at the other papers are hired ahead of regular situation holders and substitutes who have worked their full time at the other papers but are seeking an additional night's work. Here again, either the chapel chairman or the outside card shaper will inform the foreman of his specific status, or the foreman himself will ask the shaper and hire in the order based on the information received. If additional help is still required for the evening's work after all the outside card shapers have been hired, then, and only then, does the foreman hire nonunion shapers, also sometimes called "non-union extras." At the News and the Journal, the foreman also maintains and follows a seniority list in hiring as among these nonunion shapers, known as the nonunion extra list, seniority being based on the date of first employment in the respective mailroom. However, this seniority list for nonunion shapers is not part of the priority system maintained by the Mailers. Most of the nonunion shapers at the News have regularly received work in the News mailroom over a period of years, some as many as 10 years, and are familiar with and have regularly performed all the work done by the men on the union priority list, with the exception of work on mailing machines which is restricted to men on the priority list. Yet, when the foreman must hire beyond the regular substitutes, as he very frequently does, he is required to and does hire any outside card man shaping in preference to any nonunion shaper. During the vacation period in the summer of 1956, the foreman of the mailroom at the Journal gave the chapel chairman a blanket authorization to call in substitutes to shape in order to insure against shortages due to absences among the men on the priority list. During that period, the chapel chairman called other shops to get union members, who then appeared for the shape and were hired by the foreman in preference to nonunion men shaping at the same time. Only when insufficient union men were available, did the chapel chairman try to contact nonunion men. That the foregoing hiring practices could not be maintained without at least the cooperation of the foreman in charge of the hiring and operations of the mailroom, is self-evident. The contract requirement that the foreman or superintendent in charge of the hiring and operations of the mailroom be a union member, is the means used to insure this cooperation. Control over the hiring and mailroom 842 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations at the News and the Journal is vested in Superintendent Rottenberg and Foreman Every , respectively . Neither has received any instructions from higher management as to how to conduct the hiring of employees or as to his limitations and duties. The publishers of the News and the Journal have acquiesced in the mailroom hiring practices hereinabove described. As required by the contract, Rottenberg and Every are union members in good standing . Both admitted that they are familiar with, and attempt to follow, the ITU general laws and the Mailers' constitution and bylaws . Both admitted fol- lowing the hiring practices hereinabove described . Rottenberg also specifically ad- mitted following the priority requirements prescribed in article 4 of the Mailers' bylaws. Every specifically admitted that among the obligations in the constitution and general laws to which he attempts to adhere , is the one requiring a foreman to "give a break" to union members before "giving a break" to nonunion members. Rottenberg frankly admitted that "if they come in from outside shops and they have cards, they go to work ahead of the men without cards ." On several occa- sions when an unusually large number of outside card men were shaping on the eve of a holiday because of the double pay involved , Randall, a nonunion regular shaper of 10 years standing, protested against this practice to Rottenberg. On those occasions, Rottenberg stated that there was nothing he could do about it because they were union men and had to go to work ahead of the nonunion men.21 The extent to which the foreman feels obligated to, and does, adhere to union policies is graphically demonstrated by the incident in July 1956, hereinafter set forth in detail, when Randall, a nonunion shaper at the News, was deprived of work because of Mailers President Smollen's instructions to Rottenberg, who told Randall that he was sorry but he had to follow the instructions of the union's president (sec. III C. 1., infra). In still one other important respect is the foreman 's cooperation essential to enable the Mailers to cover the work in the mailroom with union members. Thus, when the Mailers selects nonunion men for induction into union membership, which will automatically put them at the bottom of the priority list of regular substitutes and assure them of any available employment , the competency test by the "impar- tial" examiners , called for in the contract, is given by the Mailers ' membership committee and the mailroom foreman. The manner in which 31 nonunion shapers at the News became union members in the spring of 1956 is a good example of the entire system in operation. In order to have its members cover the increased amount of work in the newspaper mailrooms, the Mailers decided to accept into membership 125 nonunion extras who were regularly working in the mailrooms an average of 3 days per week. After analyzing the data requested and received from the various publishers on the number of days worked by nonunion extras, the Mailers found that only 75 met this criteria. The Mailers' membership then voted to authorize the Mailers' offi- cials to determine the criteria which would permit taking in the full quota of 125. The publishers , including Respondent News, had nothing to do with the idea of enlarging the membership or the method by which eligibility for membership was to be determined . They merely cooperated in furnishing the requested data. With respect to the News, the Mailers' officials decided that those nonunion extras who had earned credits for a total of 15 vacation days 22 in the years 1954 and 1955 would be given applications for union membership . This criteria was met by 31 of some 60 employees on the nonunion seniority list maintained by Superintendent Rottenberg. Only the 31 thus selected for membership , none of whom were apprentices , were then given the competency test by the "impartial" examiners consisting of the Mailers' membership committee and Rottenberg . There- after, a membership meeting was held on June 10, when all 31 were voted into membership in the Mailers . The chapel chairman then gave the 31 names to Rottenberg who automatically placed them on the union priority list at the bottom of the regular substitute section . Rottenberg testified that he "had to" place these 31 names on the regular substitute list because they were new members and had deposited their cards with the chapel chairman. Mailers' President Smollen testified that "they don't hit the priority list until we take them into membership ." Prior to their admission into membership and placement on the substitute priority list, 30 of this group appeared on the nonunion seniority list after Randall, a nonunion regular shaper, and were hired after him. However, upon their placement on the substitute priority list, these 30 were hired not only ahead of any outside card man, but also ahead of Randall and all other nonunion men. 21 This finding is based on the credible and undisputed testimony of Randall. " Under the contract, vacation credits are based upon the number of days worked. NEWS SYNDICATE COMPANY, INC. 843 2. Respondents' contentions Some of the Respondents ' contentions , previously discussed in connection with the unlawful provisions of the contract , may also be applicable to the employment practices ; they have already been rejected as being without merit. The Respond- ents further contend that journeyman status or competency, and not union mem- bership, is the basis for the hiring preference accorded in the mailrooms; that journeyman status is one of the conditions required to qualify as a union member; and that therefore all union members are presumed to be more competent than nonunion employees who have not attained journeymen status. The record shows that the words "journeyman" and "competency" are never used in the mailrooms; employees and foremen speak only in terms of regular situation holders, regular substitutes , outside card men or union men, and non- union extras . That competency is not regarded as a definite standard of profi- ciency, is demonstrated by the varying yardstick of vacation credits which were used to obtain the desired total of union members for each newspaper in 1956, as previously pointed out. On that occasion, the publishers themselves had made no request for additional journeymen nor indicated any need for upgrading those on the nonunion list, who were already regularly employed in the mailroom, to the status of a regular substitute ; presumably they were perfectly satisfied with the work force as it then existed. Moreover, the joint competency determination of the Mailers' membership committee and the mailroom foreman is made only with respect to those employees who have previously been selected by the Mailers for membership induction . Such a competency test is never given to a nonunion em- ployee who is not a candidate for membership . Indeed, Foreman Every of the Journal could not conceive of a nonunion employee ever being as competent as a union employee. Thus, the 31 employees in the News ' mailroom who were inducted into membership in 1956, as previously discussed , thereby achieved no greater degree of competency than others who appeared with them on the non- union list of extras. Yet, 30 of this group, who had previously been hired after Randall , were thereafter hired ahead of Randall , who outranked them in seniority but had not been given the competency test because he had not been tapped for union membership . The flexibility of the "competency " concept and the fact that "competency" means whatever the Union wants it to mean at a particular time, is further demonstrated by the testimony of Mailers ' President Smollen that on various occasions the apprentice training program was shortened to permit appren- tices to take the above -described test, given by the Mailers' membership com- mittee and the mailroom foreman, whenever necessary to meet the needs of the Mailers for members to cover an increased amount of work. On the other hand, the record contains affirmative evidence, some of which has been previously mentioned , pointing directly to the fact that union membership, and not competency, is the true test. Thus, when Randall complained to Rotten- berg about the large influx of outside card men shaping on the eve of holidays, Rottenberg replied that there was nothing he could do about it, not because they were journeymen or more competent , but because they were union men and had to go to work ahead of the nonunion men. Moreover, the 31 employees at the News admittedly "hit the priority list," not as soon as they passed the competency test and thereby achieved an alleged journeyman status , but only after they had been voted into membership at a union meeting.23 Furthermore , according to the undisputed testimony of Foreman Every of the Journal, if a regular situation holder were expelled from the Union , he would lose his situation and place on the priority list. Finally, Every also admitted that as between a union and nonunion shaper, both of whom were equally competent , he would hire the union man first. Upon the basis of the entire record, I am convinced and find that the terms "journeymen" and "competency" are indiscriminately thrown over all union mem- bers as a shield behind which the unlawful closed shop and preferential hiring practices may be maintained and enforced. 3. Concluding findings I find, as alleged in the complaint , that the Mailers and the News and Dow Jones have maintained and enforced an arrangement , understanding and practice whereby the News and Dow Jones are required to, and do, maintain and enforce 11 Respondents' contention that the management of the News agreed to upgrade the 31 employees to regular substitute status and that the Mailers simultaneously stated it would admit all into membership, is contrary to the preponderance of the evidence and found to be without merit. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unlawful closed shop and preferential employment conditions, and delegate to the Mailers the maintenance and control of employment seniority and priority for mailroom employees. By such conduct, Respondents News and Mailers have vio- lated Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act, re- spectively.24 C. Discrimination in hire and tenure of employment of Burton Randall and Julius Arrigale The complaints allege that the News and Dow Jones have discriminated in the hire and tenure of employment of Burton Randall and Julius Arrigale, respectively, by providing them with less employment than they normally would have received and by according preference in employment to members of the Mailers, all because Randall and Arrigals were not members of the Mailers. The complaints further allege that the Mailers caused and attempted to cause the News and Dow Jones to discriminate against Randall and Arrigale in this respect. 1. Burton Randall Randall has been a regular nonunion shaper at the News mailroom for over 10 years. Although he shaped 5 nights a week when he first started, the meager amount of work he received caused him to seek employment elsewhere and to confine his shaping at the News primarily to Friday and Saturday nights, the 2 busiest nights of the week. Randall performed the same kind of work as regular situation holders (except for machine operations), regular substitutes, and outside card men. From about 1950 until June 10, 1956, Randall held the number three position on the seniority list, which Superintendent Rottenberg used to hire the nonunion extras. That meant that Randall was the third nonunion man hired after all the regular situation holders, substitutes, and outside card men had been hired. On June 10, 1956, 30 individuals, who ranked below Randall on this nonunion seniority list, were inducted into membership in the Mailers and placed at the bottom of the substitute section on the Union's priority list, as previously described (see section III B. 1., supra). This meant that after June 10, these 30 new regu- lar substitutes had to be, and in fact were, hired prior to any outside card men and any nonunion men. Although Randall soon attained the number one position on the nonunion list,25 the 30 new regular substitutes, who previous to June 10, had been hired after Randall, continued to be hired before him. Randall continued to receive employment in his new seniority order whenever he shaped on Friday and Saturday evenings. However, Randall's reduction in seniority in the above described manner, resulted in (1) his being hired for a later starting time, and thus finishing work at a later hour; (2) his receiving more diffi- cult and tedious work; and (3) the real possibility of not being hired at all should the number of outside card men satisfy Rottenberg's needs.26 On June 25, 1956, Randall filed the instant charges with the Board against Respondent News and Mailers. During 1955 and up to July 22, 1956, Randall had also shaped about 10 to 12 times on nights other than Friday and Saturday. On those occasions, he was accorded the same priority standing as on Friday and Saturday, that is, he was the third nonunion man to be hired prior to June 10 and the first nonunion man, after that date. Thus, on Sunday, July 15, Randall was the first nonunion man to be hired. On Friday July 20, Mailers' President Smollen visited the mailroom of the News and spoke to Rottenberg about Randall's hiring the previous Sunday, July 15. Smollen instructed Rottenberg to put Randall to work last, after all nonunion shapers had been put to work, on nights other than Friday and Saturday.27 When 24I find it unnecessary to determine, as contended in the General Counsel's brief, whether the operation of the apprentice system and of the contract provisions relating to competency are each per se unlawful. 21 Of the 2 men who had been ahead of Randall, 1 had been taken into membership along with the group of 30, and the other dropped out because of illness. 26 Randall also claimed that he received less overtime because of his reduced seniority standing. 27 This finding Is based on the testimony of Rottenberg and his admissions contained, in his sworn affidavit, executed only a few days after the conversation occurred. Grove Shepherd Wilson & %ruge, et at., Inc., 109 NLRB 209, 212, and ff ; Baker & Coombs, Inc., 114 NLRB 503, footnote 3 of Intermediate Report. Smollen admitted talking to Rotten- NEWS SYNDICATE COMPANY, INC. 845 Randall shaped the following Sunday, July 22, Rottenberg called him into the office and told him that he had "orders from the president of the Union" to put Randall "to work last after all other nonunion men, every night except Friday and Satur- day." Rottenberg also added, "I am sorry about this, but I have to follow my instructions." 28 As the number of men shaping that night was more than enough to fill the available work, Randall left the premises. Rottenberg admitted that Randall would not have been hired that night if he had stayed until the end of the shape because, after putting some nonunion men to work, others were sent away. He further admitted that, on the other hand, Randall would have been hired that night if he had been accorded his usual seniority spot.29 Randall has continued to shape and receive work on Fridays and Saturdays since the-July 22.incident. However, although he had intended to shape on nights other than Friday and Saturday, he has not done so because there is virtually no-chance of receiving employment if he were to be hired only after all other nonunion men. As Randall put it, "to make the trip in from Long Island and not to go to work would have been rather foolish." Respondents' Contentions and Concluding Findings It is clear from the foregoing, and I find, that the reduction of Randall's Friday and Saturday night seniority was a direct result of the operation of the unlawful preferential hiring system. The Respondents Mailers and News are therefore both liable for the discrimination in the terms and conditions of employment suffered by Randall in this respect. It is equally clear, and I find, that the failure of the News to hire Randall on July 22, 1956, and Randall's loss of seniority on nights other than Friday and Saturday, were directly caused by the instructions of Mailers President Smollen to Rottenberg. In view of (1) the fact that Randall had been hired in his usual seniority spot when he shaped on nights other than Friday and Saturday in 1955 and 1956; (2) Rottenberg's statement to Randall that Rottenberg acted in this manner solely because of Smollen's instructions which he had to follow; and (3) the position of the News and the Mailers, frequently emphasized, that the Mailers had nothing to do with the maintenance and operation of the nonunion seniority list, I must reject the contention that Smollen's conduct was motivated by his belief that, according to the practice of the News, Randall was entitled to his seniority spot only on Friday and Saturday, his 2 regular nights. On the other hand, I cannot ignore the fact that the only significant event which occurred shortly before Randall's change in status was his filing of the charges in the instant case. Upon the basis of the entire record, I am convinced and find that Smollen's instructions to Rottenberg were in reprisal for Randall's conduct in having filed the instant charges against the Mailers and the News. Under these circumstances, Randall's loss of seniority and failure to be hired on July 22, constituted an em- ployment discrimination which encourages retention of union membership and sup- port of the Mailers.30 I find that, by the foregoing conduct with respect to Randall, Respondents News and Mailers violated Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act, respectively. 2. Julius Arrigale The Journal is a smaller paper than the News, both in production and man- power demands. It is a 5-day-a-week publication, Mondays through Friday only. However, the same method and system of hiring, with minor variations, is em- ployed in the mailroom. From the information on the Union's priority list, Fore- man Every prepares and has printed a form, called a "sign-up sheet," which contains only the names of the regular situation holders and regular substitutes. When the hiring begins, the regular situation holders sign the list in the box con- taining their printed names. The foreman, or the chapel chairman, then tells the regular substitutes, in their priority order, to sign the sheet in the place of absent berg about Randall's Sunday hiring but 'denied telling Rottenberg not to put Randall to work in his priority spot on nights other than Friday or Saturday. He testified that he had merely stated that in his experience the News had taken the position that a man acquires priority only for those nights on which he shapes with regularity. I do not credit Smollen's contrary testimony. 21These findings are based on Randall 's credible testimony , which is corroborated by the admissions contained in Rottenberg's sworn affidavit. 21 These admissions appear in Rottenberg's sworn affidavit, hereinabove mentioned. 90 See, e.g., Southern Bleachery and Print Works, Inc., 118 NLRB 299. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regular situation holders. If the size of the paper requires more than the minimum crew, which the regular situation holders constitute, additional men are hired first from among the regular substitutes , and then from among the outside card men shaping. If there are not enough outside card men to fill the evening 's require- ments, then, and only then , are nonunion shapers hired . All employees hired for the evening sign the signup sheet. During the summer of 1956, Arrigale was the oldest nonunion extra, regularly shaping at the Journal mailroom. He had begun applying for work in late .1954. Thereafter, he shaped the mailroom steadily for 5 nights per week, missing only 2 nights. However, he was hired only for a total of 17 shifts in • 1955 and 23 shifts in 4956. During 1956, while Arrigale was shaping, several outside card men, who had not previously worked at the Journal, deposited their _ cards with the chapel chairman and were automatically placed on the Union's priority list as regular substitutes. During the vacation period of 1956, as previously described (see section III B. 1., supra), the chapel chairman , with a prior blanket authorization from the foreman, called other shops for outside card men, who would then be hired ahead of non- union men , to fill any vacancies due to absences among the regular complement of priority men. Although Arrigale was shaping steadily during this period, he was hired for only 12 shifts from June to September . Foreman Every specifically admitted that on September 18 and 19, an outside card shaper was hired in pref- erence to Arrigale who was also shaping on those nights. The charges in the instant proceeding against the Mailers were filed with the Board by Arrigale on September 17, 1956. Shortly thereafter, he stopped shaping at the Journal. Respondents' Contentions and Concluding Findings I find no merit in the Mailers ' contention that outside card shapers were sought and hired in preference to Arrigale because the latter's work was unsatisfactory. While he may not have been the best worker. he performed tasks which were done by the outside card men who were hired ahead of him . Significantly, Foreman Every admittedly never told Arrigale that his work was unsatisfactory. Indeed, Every testified that Arrigale would have received work if he had continued to shape. Upon the basis of the entire record, I am convinced and find that the reduction in Arrigale's work opportunities was the direct result of the unlawful preferential hiring system. I therefore find that Respondent Mailers caused Dow Jones, the publisher of the Journal , to discriminate with respect to the hire and tenure of employment of Arrigale, thereby encouraging membership in the Mailers. By such conduct, Respondent Mailers violated Section 8(b)(1)(A ) and (2 ) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Companies 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I will recommend that each of them cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act . Only the unlaw- ful provisions of the contract are to be effected by his order. With respect to the contract and the unlawful employment practices , the Gen- eral Counsel urges that the Recommended Order should also provide as follows: (a) The contract provision requiring foremen or mailroom superintendents, who hire, to be members, should not be enforced as long as they are obligated to com- ply with the provisions of the ITU general laws and the Mailers constitution and bylaws, calling for closed shop or. union preferential hiring. (b,) ,The incorporation clause of the contract should be modified . to specify therein those provisions . of the general laws which do-not conflict . with the Act. (c) Members of the Mailers in mailrooms within the Board 's jurisdiction, and .employees in ;the mailroom of the News, should ,be advised in:a direct and specific manner that they are relieved :,of 'any, obligation toy comply with , and will not be bound .to ,follow, designated general , laws or. provisions . in the,Mailers constitution and bylaws which ,require ;closed shop.., or., union preferential . hiring, or otherwise conflict with the Act. NEWS SYNDICATE COMPANY, INC. 847 As the ITU and the Mailers contend that the contract does not incorporate any unlawful general laws, there is no basis for objecting to a requirement that they clarify that very fact . The contention that it would be virtually impossible to specify which laws are or are not incorporated in a specific contract , underesti- mates the ingenuity of counsel . A requirement similar to that proposed in para- graph (c), above, is necessary to disabuse employees and members of any understanding or belief, which could reasonably be acquired from the contract incorporation clause, that they were obligated to follow the incorporated general laws herein found to be unlawful. Under all the circumstances I believe that provisions similar to those proposed by the General Counsel are reasonably adapted to the situation calling for redress. Accordingly, I will make substantially similar recommendations. With respect to Randall, I will include the following remedies in my Recom- mended Order. His seniority should be restored to that which he held on all nights, prior to the discrimination practiced against him on June 10 and July 22, 1956. He should be made whole for any loss of earnings incurred on July 22, 1956, as a result of the discrimination against him , in accordance with established Board formulae . I believe that the General Counsel has not sustained the burden of proof to warrant a finding that any diminution in Randall's overtime work after June 10, was directly due to Respondent 's discriminatory employment practices. Although I agree with the General Counsel's contention that it would have been a futile act for Randall to have shaped on nights other than Friday and Saturday after July 22, 1 nevertheless feel that , in view of Randall's intermittent shaping in the past on such nights, it would be highly speculative to determine when and how long Randall would have shaped on such other nights even absent the dis- crimination practiced against him on July 22 . Accordingly, I do not believe that any further back-pay award is warranted in this respect. With respect to Arrigale, the General Counsel urges that the Order contain a provision requiring that Arrigale be ranked for hiring along with any other indi- vidual who regularly shapes the Journal mailroom, including outside card holders, without regard to membership or nonmembership in the Mailers . It should be borne in mind that no Remedial Order may be issued against Dow Jones because it is not a Respondent in these cases . However, I believe that other general pro- visions directed against the Mailers will accomplish this objective also. The record does show that the unlawful hiring practices deprived Arrigale of employment, and specifically was this the case on September 18 and 19, 1956. I will, accordingly, recommend that he be made whole by the Mailers for loss of wage incurred since March 18, 1956 , as a result of such unlawful hiring practices . Except for Septem- ber 18 and 19 , 1956, the extent of such losses will have to be determined in sub- sequent compliance proceedings . Such earnings shall be computed in accordance with Board established formulae. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By executing, maintaining, and enforcing a written agreement, and by main- taining and enforcing an arrangement , understanding and practice, under which employment in the mailroom is conditioned on union membership , preference in employment is accorded to union members , and the maintenance of the employ- ment seniority and priority system is delegated to the Mailers , Respondents News has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act , and Respondent Mailers has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A ) and (2 ) of the Act. 2. By discriminating with respect to the hire , tenure, and terms and conditions of employment of Burton Randall , Respondent News has engaged in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act. 3. By causing Respondents News unlawfully to discriminate against Burton Randall, and by causing Dow Jones to discriminate with respect to the hire and tenure of employment of Julius Arrigale within the meaning of Section 8(a)(3) of the Act, Respondent Mailers has engaged in unfair labor practices within the meaning of Section 8 (b)(1)(A) and (2) of the Act. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.]