New York Typographical Union No. 6, ITU

NEW YORK TYPOGRAPHICAL UNION NO. 6, ITU 1209 date may not be treated as a valid basis for according it bargaining rights, and that the Respondent therefore owed the Union no obligation to comply with the require- ments of Section 8(a)(5) or Section 8(d) of the Act . It will therefore be recom- mended that the complaint be dismissed.12 RECOMMENDED ORDER It is hereby recommended that the complaint herein be, and it hereby is , dismissed. 121 ven if it were found that Respondent violated Section 8 ( a) (5) by modifying or ter- minating Its oral contract without giving appropriate advance notice , one may well ques- tion whether the policies of the Act would be effectuated by a remedial order. Here is an employer who , far from seeking to avoid its obligations under Section 8(a) (5), sought out the Union and took the initiative in offering to sign a contract , even though the Union at that time represented none of its employees . And, even after it became disenchanted with the caliber of employees referred to it by the Union, to the point where it became neces- sary to dispense with theirservices, the Respondent acted only after consulting the Union and testing the solution proposed by it (the hiring of apprentices ). Moreover , notwith- standing the foregoing events, the Respondent did not hesitate , a few weeks later, to sign a written contract with the Union , although it again represented none of its employees at the time of execution , and the Respondent promptly rehired the more efficient of the dis- charged employees , agreeing to rehire the rest as needed General Counsel, apparently recognizing the Respondent's almost pathetic eagerness to enter into collective -bargaining contracts, does not seek any remedy in the form of an order to bargain , but seeks only an award of backpay to those employees discharged on April 9 , to the date of their rehire or, for those not rehired, to the date of completion of the Frosty Morn job ( in September). While the Board has granted such a backpay remedy for violations of Section 8(a)(5), such an award has been merely incidental to an order of reinstatement , issued in support of an order to bargain about the job tenure of terminated employees . Town & Country Manufacturing Company, Inc, 136 NLRB 1022; Fibreboard Paper Products Corpoiat,on, 138 NLRB 550. However, as the Frosty Morn has been completed , no such bargaining order would be appropriate here, and none is sought by the General Counsel. Accord- ingly, any award of backpay here, unrelated to an order to bargain about the job tenure of the beneficiaries of such award , would not fall within the rule of the cases cited above, and would appear to be without any other precedent. If the Respondent has been guilty of any offense, clearly it was not so heinous as to warrant the invocation of a novel and un- precedented remedy. If there Is any disposition to make the punishment fit the crime, the Board, even if it were to find a technical infringement of the statute , should withhold any remedy here. New York Typographical Union No. 6, International Typo- graphical Union, AFL-CIO and Gavrin Press Corporation, d/b/a Gavrin Business Forms Company , Inc. Case No. 2-CC- 759. April 10, 1963 DECISION AND ORDER Upon an unfair labor practice charge and an amended charge filed by Gavrin Press Corporation, d/b/a Gavrin Business Forms Com- pany, Inc., herein called Gavrin, against the Respondent, New York Typographical Union No. 6, International Typographical Union, AFL-CIO, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region, issued an amended complaint dated November 15, 1962, alleging that the Re- spondent had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (ii) (B) and Section 2(6) and (7) of the Act. Copies of the charges, 141 NLRB No. 108. 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent and the Charging Party. With respect to the unfair labor practices, the complaint alleged that on August 29, 1962, the Respondent threatened, coerced, and re- strained certain persons engaged in commerce and in industries affect- ing commerce by threatening to picket such persons if they continued "to deal in or purchase products processed or supplied by Gavrin" with an object of forcing such persons to cease doing business with Gavrin. On November 15, 1962, all parties to this proceeding entered into a stipulation of facts, and requested that the proceeding be transferred directly to the Board for findings of fact, conclusions of law, and the issuance of a Decision and Order based thereon. The request states that the parties have waived their rights to a hearing before a Trial Examiner and to the issuance of an Intermediate Report and Recom- mended Order. The parties also agree that their stipulation and cer- tain specified documents shall constitute the entire record in the case. On December 20, 1962, the Board granted the motion of the parties and transferred the case to itself. Thereafter, the General Counsel filed a brief. Upon the basis of the stipulation, the brief, and the entire record in the case, the Board 1 makes the following : FIN DINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS Gavrin, an Illinois corporation, with its principal office and place of business in New Rochelle, New York, is engaged in the manufacture, sale, and distribution of carbon interleaved business forms and related products. During the year preceding the issuance of the complaint Gavrin shipped from its New Rochelle, New York, plant to points out- side the State of New York, products valued in excess of $50,000 and during this same period it purchased and received from outside the State materials valued in excess of $50,000. General Motors Corporation, a Delaware corporation, with its prin- cipal office and place of business in Detroit, Michigan, and various other places of business in other States of the United States, includ- ing one in the city and State of New York, is engaged in the manufac- ture, sale, and distribution of automobiles, trucks, and related prod- ucts. During the year preceding the issuance of the complaint General Motors shipped from Detroit, Michigan, to points outside the State products valued in excess of $1,000,000. 'Pursuant to the provisions of Section 3(h) of the Act , the Board has delegated Its powers in connection with this case to a three -member panel [ Chairman McCulloch and Members Rodgers and Leedom] NEW YORK TYPOGRAPHICAL UNION NO. 6, ITU 1211 General Electric Company, a New York corporation with its prin- cipal office and place of business in the city and State of New York, is engaged in the manufacture, sale, and distribution of electric ap- pliances, motors, tubes, generators, and related products. During the year preceding the issuance of the complaint General Electric shipped from the State of New York to points outside the State products valued in excess of $1,000,000. Lever Brothers Company, Inc., a Maine corporation, with its prin- cipal office and place of business in the city and State of New York, is engaged in the manufacture, sale, and distribution of soaps, detergents, cleaning fluids, and related products. During the year preceding the issuance of the complaint Lever Brothers shipped from its plants and places of business in interstate commerce directly to States other than the State in which it is located products valued in excess of $1,000,000. Metropolitan Life Insurance Company, a New York corporation with its principal office and place of business in the city and State of New York and various other offices and places of business in other States, is engaged in the sale of many types of insurance policies to persons residing in various States. During the year preceding the issuance of the complaint Metropolitan paid to policyholders and beneficiaries residing in States outside New York claims in excess of $1,000,000. Manhattan Life Insurance Company, a New York corporation, with its principal office and place of business in the city and State of New York is engaged in the sale of insurance policies to persons residing in various States. During the year preceding the issuance of the com- plaint Manhattan received from the sale of insurance policies from persons residing in States outside New York premiums in excess of $50,000. Broadcast Music, Inc., a New York corporation, with its principal office and place of business in the city and State of New York, is engaged in the sale of licenses to radio and television stations and other persons, granting all of them the right to publicly perform copy- righted music. During the year preceding the issuance of the com- plaint, Broadcast Music received from radio and television stations located outside the State of New York, in payment for such licenses, in excess of $1,000,000. Improved Risk Mutuals, a New York unincorporated association with its principal office and place of business in White Plains, New York, is engaged in the underwriting of fire insurance policies for various mutual fire insurance companies located in the State of New York and other States. During the year preceding the issuance of the complaint Improved Risk received from underwriting fire insurance policies, issued by various mutual fire insurance companies located out- side the State, premiums in excess of $50,000. 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Title Guarantee Company, a New York corporation, with its principal office and place of business in the city and State of New York, is engaged in performing title searching services and related services and selling title insurance policies to various persons and in- surance companies in various States. During the year preceding the issuance of the complaint Title Guarantee received from insurance companies located outside the State, for services performed, payment in excess of $50,000. The City of New York, Department of Purchase, in the city and State of New York, is a department of the government of the city of New York. Dulany-Vernay, Inc., a Maryland corporation with its principal office and place of business in Baltimore, Maryland, is engaged in per- forming commercial printing services and related services. During the year preceding the issuance of the complaint Dulany-Vernay pur- chased and received from outside the State materials valued in excess of $50,000. The Respondent admits and we find, that Gavrin, General Motors, General Electric, Lever Brothers, Metropolitan Life, Manhattan Life, Broadcast Music, Dulany-Vernay, Improved Risk, Title Guarantee, and the City of New York, herein called the Employer,' are persons engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED New York Typographical Union No. 6, International Typo- graphical Union, AFL-CIO, is a labor organization within the mean- ing of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Since about 1940, Respondent and/or its predecessor, International Typographical Union, Local 468, has been the exclusive bargaining representative of Gavrin's composingroom employees in the New Rochelle plant. The last contract between the parties expired July 31, 1962. Following negotiations and failure to reach agreement, Re- spondent called a strike of the employees at Gavrin on August 20, 1962. However, it is stipulated that Respondent does not have, and at no time herein material has had, any dispute with any of the Em- ployers listed supra. These Employers are, and have been for some time in the past, customers of Gavrin. All of them purchase business 3 Although the 'City of New York is not an "employer " within the definition contained in Section 2(2) of the Act, it is nevertheless a "person" engaged in commerce within the meaning of Section 8 ( b) (4) and is entitled to the protection of the Act . Plumbers, Steam- fitters, Refrigeration, Petroleum, Fitters and Apprentices of Local 298 , API, et al v. County of Door, 359 U. S. 357. NEW YORK TYPOGRAPHICAL UNION NO. 6, ITU 1213 forms from Gavrin for use in their office operations, except Dulany- Vernay, which purchases such forms from Gavrin for resale. On August 29, 1962, Respondent, by its President Bertram A. Powers, sent a form letter, a copy of which is attached hereto marked "Appendix A," to each of the Employers. It is only the threat to picket the premises of the Employers contained in this letter which is here alleged to constitute a threat, coercion, and restraint of the Em- ployers in violation of Section 8(b) (4) (ii) (B).3 Respondent has not gat any time herein material engaged in picketing at the premises of any of the Employers. The letter in question states in pertinent part: "if you continue to deal in products processed or supplied by Gavrin . . . we will picket your premises . . . ." It further states : "It will not be necessary for us to engage in such . . . picketing if we receive assurances from you that you no longer deal in products supplied by Gavrin." In the Stephens Company 4 case, the Board found that a similar letter, threat- ening to picket the premises of secondary employers in order to force them to cease doing business with the primary employer, was unlawful under Section 8(b) (4) (ii) (B) of the Act. There is no valid reason to find otherwise in the instant case. Assuming arguendo that Re- spondent was making a bona fide effort in its letter, to limit its threat to consumer picketing, the Board has consistently held that consumer picketing of a secondary establishment constitutes restraint and coer- cion within the meaning of Section 8(b) (4) (ii) ; 5 and when it has the explicit object of forcing any person to cease handling the products of any other producer, the picketing violates Section 8(b) (4) (ii) (B). Accordingly, we so find here. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth above occurring in con- nection with the operations of Gavrin have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 'As Respondent 's threat to handbill was not alleged in the complaint as violating Sec- tion 8 ( b) (4) (ii ) ( B), we do not here pass upon whether such threat is violative of the Act. 4 General Drivers, Chauffeurs, and Helpers, Local Union No. 886 ( The Stephens Com- pany ), 133 NLRB 1393. 5 Local 445 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America ( Colony Liquor Distributors, Inc ), 140 NLRB 1097, Upholsterers, Frame & Bedding Workers Twin City Local No , 61 (Minneapolis House Furnishing Com- pany ), 132 NLRB 40 , 43-44 ( Members Rodgers and Leedom dissenting with respect to other matters ) ; Fruit & Vegetable Packers & Warehousemen, etc, Local 760 (Tree Fruits Labor Relations Committee, Inc ), 132 NLRB 1172, 1177, reversed 308 F. 2d 311 (C A D ,C ), petition for certiorari pending. With all due respect to the court's opinion in Tiee Fruits, the Board has determined to adhere to its interpretation of the Act as set forth in the Board opinions in the above-cited cases Moreover, in that case the court remanded to have the Board determine if the secondary employer "was in fact threatened, coerced or restrained " Here, Respondent's letter "in fact threatened" the secondary employers. 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Gavrin Press Corporation, d/b/a Gavrin Business Forms Com- pany, Inc., General Motors Corporation , General Electric Company, Lever Brothers Company, Inc., Metropolitan Life Insurance Company, Manhattan Life Insurance Company, Broadcast Music, Inc., Improved Risk Mutuals, The Title Guarantee Company, The City of New York, Department of Purchase , and Dulany-Vernay, Inc., are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. New York Typographical Union No. 6, International Typograph- ical Union, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By threatening to picket at the premises of General Motors Cor- poration, General Electric Company, Lever Brothers Company, Inc., Metropolitan Life Insurance Company, Manhattan Life Insurance Company, Broadcast Music, Inc., Improved Risk Mutuals, The Title Guarantee Company, The City of New York, Department of Purchase, and Dulany-Vernay, Inc., in furtherance of a dispute with Gavrin Press Corporation, d/b/a Gavrin Business Forms Company, Inc., Re- spondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (ii ) (B) of the Act. ORDER Upon the entire record in the case and pursuant to Section 10(c) of the Act, as amended, the National Labor Relations Board hereby orders that the Respondent , New York Typographical Union No. 6, International Typographical Union, AFL-CIO, New York, New York, its officers, agents, representatives , successors, and assigns, shall : 1. Cease and desist from threatening , coercing, or restraining Gen- eral Motors Corporation, General Electric Company, Lever Brothers Company, Inc., Metropolitan Life Insurance Company, Manhattan Life Insurance Company, Broadcast Music, Inc., Improved Risk Mutuals, the Title Guarantee Company, the City of New York, De- partment of Purchase , and Dulany-Vernay, Inc., or any other person engaged in commerce or in any industry affecting commerce, by threat- ening to picket them where an object thereof is to force or require them to cease using, selling, handling, transporting , or otherwise dealing in NEW YORK TYPOGRAPHICAL UNION NO. 6, ITU 1215 the products of Gavrin Press Corporation, d/b/a Gavrin Business Forms Company, Inc., or to cease doing business with Gavrin Press Corporation, d/b/a Gavrin Business Forms Company, Inc. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act (a) Post at its business offices and meeting halls in New York, New York, copies of the attached notice marked "Appendix B." 6 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's representa- tive, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are cus- tomarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the said Regional Director copies of the aforemen- tioned notice for posting by General Motors Corporation, General Electric Company, Lever Brothers Company, Inc., Metropolitan Life Insurance Company, Manhattan Life Insurance Company, Broadcast Music, Inc., Improved Risk Mutuals, the Title Guarantee Company, the City of New York, Department of Purchase, and Du- lany-Vernay, Inc., if willing, at the premises where picketing was threatened. (c) Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken by the Respondent to comply herewith. I 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 " APPENDIX A AUGUST 29, 1962. GENTLEMEN : We wish to advise you that members of this Union are on strike against Gavrin Business Forms Company and a part of Allied Paper Company, 30 Pine Street, New Rochelle, New York. We are advised that you have placed orders for certain merchandise with Gavrin Business Forms Company. I wish to inform you that if you continue to deal in products proc- essed or supplied by Gavrin Business Forms Company, that this Union will distribute leaflets in front of your premises urging your customers not to purchase any such merchandise so processed or manufactured. In addition to distributing such leaflets, we will picket your premises to urge your customers to cease purchasing such materials. The object of such leaflet distribution and picketing will not be for the purpose of inducing your employees to cease work. 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It will not be necessary for us to engage in such leaflet distribution or picketing if we receive assurances from you that you no longer deal in products supplied by Gavrin. In order that there be no mis- understanding about our object, we would thank you to post a copy of this letter on your bulletin board in order that your employees may be informed of its contents. Very truly yours, esiu/153 str BERTRAM A. POWERS, President. APPENDIX B NOTICE TO ALL MEMBERS OF NEW YORK TYPOGRAPHICAL UNION No. 6, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO AND TO ALL EM- PLOYEES OF GENERAL MOTORS CORPORATION; GENERAL ELECTRIC COMPANY; LEVER BROTHERS COMPANY, INC.; METROPOLITAN LIFE INSURANCE COMPANY; MANHATTAN LIFE INSURANCE COMPANY; BROADCAST MUSIC, INC.; IMPROVED RISK MUTUALS; THE TITLE GUARANTEE COMPANY; THE CITY OF NEW YORK, DEPARTMENT OF PURCHASE; AND DULANY-VERNAY, 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 threaten, coerce, or restrain any of the above- named Employers or any persons engaged in commerce or in any industry affecting commerce by threatening to picket where an object thereof is to force or require them to cease using, sell- ing, handling, transporting, or otherwise dealing in the products of Gavrin Press Corporation, d/b/a Gavrin Business Forms Company, Inc., or to cease doing business with Gavrin Press Cor- poration, d/b/a Gavrin Business Forms Company, Inc. NEW YORK TYPOGRAPHICAL UNION No. 6, INTER- NATIONAL TYPOGRAPHICAL UNION, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor Squibb Building, 745 Fifth Avenue, New York 22, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions.