N.Y. Newspaper Printing Pressmen's Union No. 2

1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Extension 2131. New York Newspaper Printing Pressmen's Union No. 2, AFL- CIO and New York Times Company and New York Stereo- typers' Union No. 1, and Publishers Association of New York City, Parties in Interest. Case No. 2-CD-288. September 10, 1965 DECISION AND ORDER On July 2, 1965, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding , finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Deci- sion. Thereafter, the General Counsel filed limited exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed no exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins] The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision , the exceptions and brief, and the entire record in this case,' and hereby adopts the findings , conclusions, and recom- mendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, New York Newspaper Print- ing Pressmen's Union No. 2, AFL-CIO, New York, New York, its offi- cers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1 The parties agreed to incorporate the record in the 10(k) proceeding in the present case. 2 We find merit in the General Counsel's limited exceptions and accordingly modify the Recommended Order of the Trial Examiner to conform with our determination of dispute in the 10(k) proceeding. 154 NLRB No. 97. N.Y. NEWSPAPER PRINTING PRESSMEN'S UNION NO. 2 1123 A. Delete paragraph 1 of the Trial Examiner's Recommended Order and insert in lieu thereof the following : "1. Cease and desist from engaging in, or inducing or encouraging any individual employed by New York Times Company, or by any other person engaged in commerce or in an industry affecting com- merce, to engage in, a strike or a refusal in the course of his employ- ment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, or threatening, coercing, or restraining New York Times Company, or any person engaged in commerce or in an industry affect- ing commerce, where in either case an object thereof is to force or require New York Times Company to assign the work of inspecting and marking plates, the operation of mechanical conveyors, and all other work between the cooling arch of Wood Tension Supermatic Machines and Jampol Plate Pushers to employees who are members of or represented by New York Newspaper Printing Pressmen's Union No. 2, AFL-CIO, rather than to employees who are members of or represented by New York Stereotypers' Union No. 1." B. Delete the indented text of the Appendix attached to the Trial Examiner's Decision and insert in lieu thereof the following : WE WILL NOT engage in, or induce or encourage any individual employed by New York Times Company, or by any person engaged in commerce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of his employment to use, manu- facture, process, transport, or otherwise handle, or work on any goods, articles, materials, or commodities, or perform any serv- ices, or threaten, coerce, or restrain New York Times Company, or any person engaged in commerce or an industry affecting com- merce, where in either case an object thereof is to force or require New York Times Company to assign the work of inspecting and marking plates, the operation of mechanical conveyors, and all other work between the cooling arch of Wood Tension Supermatic Machines and Jampol Plate Pushers to employees who are mem- bers of or represented by New York Newspaper Printing Press- men's Union No. 2, AFL-CIO, rather than to employees who are members of or represented by New York Stereotypers' Union No. 1. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The complaint 1 under Section 10 (b) of the National Labor Relations Act (herein called the Act) involves allegations that New York Newspaper Printing Pressmen's Union No. 2, AFL-CIO (herein called Pressmen or Respondent ), violated Section 8(b) (4) (i) and (ii) (D) of the Act, by engaging in, and inducing and encouraging I Issued February 9, 1965 (upon a charge filed December 16, 1963 ), after the usual 10(k) proceeding resulting in the Board 's Decision and Determination of Dispute, 150 NLRB 657, dated December 31, 1964. 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees of New York Times Company (herein called Times), to engage in, a strike or concerted refusal to perform services, and by threatening, coercing, and restrain- ing Times, and object thereof being to force or require Times to assign certain work to employees who are members of or represented by Pressmen, rather than to employ- ees who are members of or represented by New York Stereotypers' Union No. 1 (herein called Stereotypers). By answer Respondent admitted (1) the issuance of the Board's Decision and Determination of Dispute, on December 31, 1964; and (2) its failure and refusal to comply with said Decision, but denied that it had in any way violated Section 8(b)(4)(D) of the Act. In addition, and by way of affirmative defense, the answer asserts that the Board's Decision and Determination of Dispute is based on "erroneous findings of fact and conclusions of law," constitutes an "abuse of discretion," and "deprives [Pressmen] of property without due process of law" A hearing in this matter was held before Trial Examiner Joseph I. Nachman at New York, New York, on April 5, 1965. Full opportunity was afforded those parties to present pertinent evidence, but they elected to and did stipulate that they would rely on the record made in the 10(k) hearing, and the same was received as an exhibit in this proceeding. The General Counsel presented oral argument which is included in the transcript of the hearing. The other parties present waived oral argument and submitted briefs which have been duly considered.2 At the hearing Respondent con- ceded that its only defense to the complaint herein was the alleged incorrectness of the Board's Decision and Determination of Dispute. Upon the entire record in the case, I make the following: FINDINGS OF FACT 3 1. THE SCOPE OF THE ISSUE TO BE DETERMINED In a proceeding under Section 10(k) of the Act, the Board must first determine whether there exists reasonable cause to believe that a violation of Section 8(b)(4) (D) of the Act has occurred. If it finds such reasonable cause to believe, and also finds that the parties have not settled or agreed upon a method for the settlement of their dispute, Section 10(k) requires that the Board hear and determine the dispute. If there is compliance with the Board's decision in the 10(k) proceeding, the charge is dismissed; otherwise a complaint issues upon the original unfair labor practice charge. See Sections 102.91 and 101.36 of the Board's Rules and Regulations and Statements of Procedure, Series 8, as amended. Respondent contends that when an unfair labor practice complaint issues, alleging a failure to comply with the Board's Decision and Determination of Dispute, follow- ing the 10(k) proceeding the correctness of the Board's award of the disputed work is to be determined de novo by the Trial Examiner, subject to review by the Board. Respondent cites no authority to support this contention, and I am aware of none .4 On the contrary, the Board has consistently held that at least in the absence of mate- rial newly discovered or previously unavailable evidence,5 an award of disputed work by the Board in a decision and determination of dispute, is not open to review by a Trial Examiner in a proceeding on a 8(b)(4)(D) complaint.6 Accordingly, the 2 Although not appearing at the hearing, a brief has been received from Skadden, Ayes, Slate, Meagher & Florn on behalf of Stereotypers, which has likewise been considered S No issue of commerce or labor organization is presented On the facts alleged in the complaint-all of which are admitted by Respondent's answer-and the Board 's findings in the Section 10(k) proceeding, it is clear that Times is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that Pressmen and Stereotypers are labor organizations within the meaning of Section 2 ( 5) of the Act. I so find. 4 At the hearing, Respondent stated that authorities to support Its contention would be supplied in the brief. Its brief, however, does not cite such authority. B Respondent made no offer of alleged newly discovered or previously unavailable evidence ; relying solely upon the testimony adduced and the record made in the Section 10(k) proceeding. Painting and Decorating Contractors of America , Houston Chapter, on behalf of its member Sline Industrial Painters and its Other Members (Local 450, International Union of Operating Engineers, AFL-CIO), 123 NLRB 1 , 6; Local 1 291, International Longshore- men's Association and International Longshoremen's Association (Pennsylvania Sugar Division, National Sugar Refining Company), 142 NLRB 257; Chicago Typographical Union No. 16, AFL-CIO (Central Typesetting and Electrotyping Company), 138 NLRB 231 ; Local 1291, International Longshoremen's Association, AFL-CIO (Northern Metal Company), 142 NLRB 1228 ; Local 46, Wood, Wire and Metal Lathers International N.Y. NEWSPAPER PRINTING PRESSMEN'S UNION NO. 2 1125 Board's findings as to who is entitled to perform the work involved in this proceeding are, by this reference, adopted as a part of the findings herein. In this posture, only two issues are before me; namely (1) has Respondent com- plied with the Board's Decision and Determination of Dispute, and (2) did Respond- ent engage in conduct described in Section 8(b)(4), for an objective proscribed by subsection (D) thereof. On neither of these issues is there any real dispute. As to (1), Respondent by its answer filed herein, and at the hearing, admitted that it gave no notice to the Regional Director of compliance with the Board's Decision and Deter- mination of Dispute, as required therein, and that there has in fact been no such com- pliance. As to (2), the testimony taken at the 10(k) hearing leaves no room for doubt, indeed Byrne, Respondent's president, admitted that on December 3, 1963, when he observed the disputed work being done by Stereotypers, he directed a member of Respondent employed by Times to cease performing such work, and that pursuant to Byrne's directions the employee did so. Byrne also admitted that his purpose in issuing the aforementioned directive was to compel Times to assign the disputed work to members of Pressmen, rather than to members of Stereotypers, to whom Times had assigned the disputed work. II. CONCLUDING FINDINGS On the basis of the foregoing findings of fact, I must and do find and conclude that Respondent engaged in, and induced and encouraged individuals employed by Times to engage in, a strike or a refusal in the course of his employment to perform services, and threatened, coerced, and restrained Times, and that an object of the aforesaid conduct was to force or require Times to assign the work referred to in the Board's Decision and Determination of Dispute to employees who are members of Respond- ent, rather than to employees who are members of Stereotypers, and to whom Times had assigned said disputed work. III. THE REMEDY Having found that Respondent engaged in unfair labor practices proscribed by Section 8(b)(4)(i) and (h) (D) of the Act, the Recommended Order will require it to cease and desist therefrom and to take the usual affirmative action designed to remedy unfair labor practices of this nature, and to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Times is an employer within the meaning of Section 2(2) of the Act, and a person within the meaning of Sections 2(1) and 8(b)(4) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Pressmen and Stereotypers are labor organizations within the meanings of Sec- tions 2(5) and 8(b) (4) (D) of the Act 3. By engaging in, and inducing and encouraging individuals employed by Times to engage in, a strike or a refusal in the course of their employment to perform serv- ices, and by threatening, coercing, and restraining Times, an object thereof being to force or require Times to assign certain work to its employees who are members of Pressmen, rather than to its employees who are members of Stereotypers, Respond- ent engaged in, and continues to engage in, unfair labor practices proscribed by Sec- tion 8(b) (4) (i) and (ii) (D) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, Union, AFL-CIO, and Brian Dillon, its Business Representative (Precrete, Inc.), 140 NLRB 1; International Typographical Union, AFL-CIO and Members of its Executive Council; International Typographical Union, AFL-CIO, Local 165, and its Scale Commit- tee (Worcester Telegram Publishing Company, Inc ), 125 NLRB 759; Local 3, Interna- tional Brotherhood of Electrical Workers, AFL-CIO (Western Electric Company, In- corporated), 144 NLRB 1318; The Denver Photo-Engravers' Union No. 18, International Photo-Engravers Union of North America, AFL-CIO (The Denver Publishing Company), 147 NLRB 533; International Printing Pressmen and Assistants' Union of North Amer- ica, AFL-CIO; Memphis Newspaper Printing Pressmen's Union, Local No. 24; and Their Agent, Frazier Moore (Kelley & Jamison, Inc.), 150 NLRB 842. 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is recommended that New York Newspaper Printing Pressman's Union No. 2, AFL- CIO, Respondent herein, its officers, agents, and representatives, shall: 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by New York Times Company, or by any other person engaged in com- merce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, or threatening, coercing, or restraining New York Times Company, or any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require New York Times Company to assign the work of marking and inspecting plates, operating the mechanical conveyor, and all other work between the cooling arch of the Wood Tension Supermatic Machine and the Jampol Plate Pusher, to employees who are members of or represented by New York News- paper Printing Pressman's Union No. 2, AFL-CIO, rather than to employees who are members of or represented by New York Stereotypers' Union No. 1. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its business office and meeting hall in New York, New York, copies of the attached notice marked "Appendix." 7 Copies of said notice to be furnished by the Regional Director for Region 2, shall, after being duly signed by its authorized representative, be posted by Respondent immediately on receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous place, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for posting by New York Times Company, it being willing, at all locations where notices to its employees aie customarily posted. (c) Notify said Regional Director for Region 2, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith.8 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order". In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read* "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF NEW YORK PRINTING PRESSMAN'S UNION No. 2 AFL-CIO, AND TO ALL EMPLOYEES OF NEW YORK TIMES COMPANY Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT engage in , or induce or encourage any individual employed by New York Times Company, or by any person engaged in commerce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or perform any services, or threaten, coerce, or restrain New York Times Company, or any person engaged in commerce or an industry affecting commerce, where in either case an object thereof is to force or require New York Times Company to assign the work of marking and inspecting plates, operating the mechanical conveyor, and all other work between the cooling arch of the Wood Tension Supermatic Machine and the Jampol Plate Pusher to employees who are members of or represented by New York Newspaper Printing Piessman's Union No 2, rather than to employ- ees who are members of or represented by New York Stereotypers' Union No. 1. NEW YORK NEWSPAPER PRINTING PRESSMAN'S UNION No. 2, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) MOOR -HANDLLY, INC . 1127 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. If members have any question concerning this notice or compliance with its provi- sions they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500. Moore-Handley, Inc. and Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 26-CA-1840. September 10, 1965 DECISION AND ORDER On May 20, 1965, Trial Examiner W. Gerard Ryan issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and finds merit in certain of the exceptions of the Respond- ent. We therefore adopt the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent that they are consistent with this Decision and Order.' 1. The Trial Examiner found, and we agree, that the Respondent interrogated employee Neil Porter on June 2, 1964, in violation of Sec- tion 8(a) (1) of the Act. We also agree, for the reasons stated by the Trial Examiner, that the Respondent's discharge of employees John Wells and Francis Greenhill on June 3, 1964, was in violation of Sec- tion 8(a) (1) and (3) of the Act. 'We hereby correct the following inadvertent errors in the Trial Examiner's Decision: Phillip Chamblee was discharged on June 3, 1964 , not June 4 , 1904; of the 14 employees discharged by the Respondent , all signed union authorization cards with the exception of Draper and Mahan, rather than Draper and Ogilvie ; and, of the 9 employees remain- ing in the warehouse after the reduction in force, all had signed union cards except Goodrich , Phelps, and Akin. Contrary to the Trial Examiner, Edwards had signed a union card. 154 NLRB No. 96.