The Cuneo Eastern Press of Pennsylvania, Inc.

CUNEO EASTERN PRESS INC. 523 The Cuneo Eastern Press of Pennsylvania, Inc. and John Sebzda, Jr., an Individual Local 4, International Printing Pressmen and Assistants' Union of North America, AFL-CIO and Local 11, International Printing Pressmen and Assistants' Union of North America, AFL-CIO and John Sebzda, Jr., an Individual. Cases 4-CA-4055 and 4-CB-1 287 November 27, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On July 14, 1967, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent Locals 4 and 11 filed ex- ceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed cross-exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 en- tire record in this case, including the Trial Ex- aminer's Decision, the exceptions, cross-excep- tions, and briefs, and hereby adopts the Trial Ex- aminer's findings,' conclusions,2 and recommenda- tions,3 as modified below. 1. Under the heading "Recommended Order" in the Trial Examiner's Decision, insert "A." before the words "The Cuneo Eastern Press ...." 2. Add the following as paragraph B, 2, (b) of the Trial Examiner's Recommended Order and con- secutively reletter the present paragraph B, 2, (b) and those subsequent thereto: "(b) Notify John Sebzda, Jr., and the Respond- ent Employer that they have no objection to John Sebzda, Jr., being reinstated to his seniority posi- tion above Hart, Weber, Smythe, and Frye based upon his prior date of employment in the rotary press department of Respondent Employer." 3. Add the following as the third indented para- graph of Appendix B of the Trial Examiner's Deci- sion: WE WILL NOT object to John Sebzda, Jr., being reinstated to his seniority position above Hart, Weber, Smythe, and Frye based upon his prior date of employment in the rotary press department of the above-named Employer. ' The Respondent Union's exceptions to the Trial Examiner's Decision are in large part directed to the credibility resolutions of the Trial Ex- aminer. We will not overrule the Trial Examiner's resolutions as to credi- bility unless a clear preponderance of all relevant evidence convinces us that they are incorrect. Upon the entire record, such conclusion is not warranted here. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3) 2 Contrary to exceptions filed by Respondent Locals 4 and 11, we agree with the Trial Examiner's treatment of them as a single Respondentjointly liable with the Respondent Employer for the unfair labor practices alleged in the complaint and jointly subject to the provisions of his Recommended Order, as modified herein. In this regard, we note the Locals 4 and 11 have common officers who have signed , on behalf of both, the collective- bargaining agreement with Respondent Cuneo; that their meetings are conducted jointly; and that they treated themselves as a single entity prior to the filing of theirjoint exceptions to the Trial Examiner's Decision. a We hereby grant the General Counsel's request that the remedy sec- tion of the Trial Examiner's Decision be modified to provide that backpay, if any, shall be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heat- ing Co., 138 NLRB 716. TRIAL EXAMINER'S DECISION ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that the Respondents, The Cuneo Eastern Press of Pennsylvania, Inc., Philadelphia, Pennsylvania, its officers, agents, suc- cessors, and assigns, and Local 4, International Printing Pressmen and Assistants' Union of North America, AFL-CIO and Local 11, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: STATEMENT OF THE CASE EUGENE F. DIXON, Trial Examiner : This proceeding, brought under Section 10(b) of the National Labor Rela- tions Act, as amended (61 Stat. 136), herein called the Act, was heard at Philadelphia, Pennsylvania, on Febru- ary 27 and 28 and March 20,1967, pursuant to due notice. On the basis of charges filed by John Sebzda, Jr., an in- dividual , on August 4 and November 30, 1966, a con- solidated complaint was issued on December 1, 1966, by the Regional Director of Region 4 for the National Labor Relations Board on behalf of its General Counsel (herein called the Board and the General Counsel) alleging that the Cuneo Eastern Press of Pennsylvania , Inc. (herein called Cuneo or the Respondent Company), and Local 4, International Printing Pressmen and Assistants ' Union of North America, AFL-CIO and Local 11, International Printing Pressmen and Assistants' Union of North Amer- 168 NLRB No. 73 524 DECISIONS OF NATIONAL ica, AFL-CIO (herein called the Respondent Union), had engaged in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act. In substance the complaint alleges that the Respondent Union caused and attempted to cause Respondent Com- pany to discriminate against the Charging Party John Sebzda, Jr., by dating his seniority from the date of his "book membership" in Respondent Union thereby caus- ing him to be deprived of overtime employment and other benefits. By this conduct the complaint alleges violations of Section 8(b)(1)(A) and (2) of the Act by Respondent Union and of Section 8(a)(1) and (3) of the Act by Respondent Company. An answer was duly filed by Respondent Union deny- ing the commission of any unfair labor practices and setting forth certain affirmative defenses. The Respond- ent Company did not file an answer. At the hearing the General Counsel moved for judgment against the Com- pany on that basis. Although the Company was repre- sented at the hearing by counsel, no objection was raised by the Company to the General Counsel' s motion. Respondent Union, however, did object strenuously to the motion and on that basis I reserved ruling until the issuance of this Decision. For obvious reasons I hereby now grant the General Counsel's motion. FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY Respondent Cuneo is, and has been at all times materi- al herein, a corporation duly organized under and existing by virtue of the laws of the Commonwealth of Pennsyl- vania, with its principal office and plant located in Pennsylvania where it is engaged in the business of print- ing magazines and other materials. During the year preceding the issuance of the complaint Respondent Cuneo purchased and received materials at Philadelphia, Pennsylvania, in the course and conduct of its business operations valued in excess of $50,000 which were trans- ported to said location from States of the United States other than the Commonwealth of Pennsylvania. During the same period of time Respondent Cuneo in the course and conduct of its business operations had a gross volume of business in excess of $500,000 of which amount in ex- cess of $50,000 worth of sales and services were to customers outside the Commonwealth of Pennsylvania. At all times material Respondent Cuneo has been an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS Local 4, International Printing Pressmen and Assistants' Union of North America, AFL-CIO and Local 11, International Printing Pressmen and Assistants' Union of North America, AFL-CIO at all times material herein have been labor organizations within the meaning of Section 2(5) of the Act. I Although two locals are named as Respondents it appears that only Local 11 and the employees it represents are directly involved in this proceeding. In any event, I shall refer to the Respondent labor organiza- tion in the singular since no question has been raised about this and the Union is treated in the singular in the Union's brief. LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES Cuneo is a member of the Allied Printing Employers' Association and a party to that Association's contract with the Union which was effective from May 1, 1964, to April 30, 1967. Because Cuneo is a printer of periodicals and not just a commerical printer and because Cuneo has more complex and difficult equipment than other em- ployers in the Association, it also entered into a separate or supplemental agreement with the Union on October 29, 1964, presumably effective for the term of the master agreement. Paragraph 46 of the main or master agreement provides: 46. Seniority shall be by classification: for exam- ple, Regular Pressmen, Extra Pressmen, Regular Assistants and Extra Assistants. An employee shall hold seniority in one classification only. He shall be permitted to change his seniority status from a lower to a higher classification, subject to the approval of both parties, if he meets the recognized qualifica- tions. In such a case, his seniority shall begin as of the date he assumes the new classification. (a) All permanent promotions to higher payroll classifications in the department shall be made by seniority in the card classifications, provided the senior employee is capable of per- forming the work. It is recognized that if the chairman disagrees with the foreman's decision as to the ability of an employee to perform satisfactorily on a specific work assignment, the foreman's decision shall prevail pending settle- ment of the issue through the grievance procedure. The supplemental agreement provides as follows regard- ing seniority: SENIORITY A. Seniority shall be by card classification in only one department; namely, Rotory Pressroom, Cylinder Pressroom, and Offset Pressroom. Em- ployees laid off in one department will be given the opportunity to establish competency, in their card classification, in another department if such work is available. The so-called "card" referred to in the above agree- ments is nothing more than the union dues book and bears the title "Working Card" on the cover. Those achieving such a "card classification" are known as "card men" and are members of the Union. Cuneo employs "pressmen" and "assistant pressmen"2 in the rotary pressroom. Both categories are considered to be distinct and different types of employees - each group having its own seniority list. The assistant press- men (or senior assistants) are represented by Respondent Local 11. As indicated in the agreements, "seniority shall be by card classification in only one department ..." and "[a]n employee shall hold seniority in one classification 2 All assistant pressmen are considered to be senior assistants, there being no junior assistants in the rotary pressroom as provided for in the contract Nor is there an apprentice program at Cuneo as provided for in the master agreement. CUNEO EASTERN PRESS INC. 525 only." Or, as explained by Sebzda in his testimony, there was only one classification - that of senior assistants in his group. There are four categories of employees in the senior assistant grouping. In the order of their-importance to the employees' continuity of income and employment they are regulars , extras, subs, and sub-subs or temporaries. As I understand it, the first three of the foregoing catego- ries share in overtime work on an equal basis and layoffs are shared within each category . The sub-subs have no opportunity to share in the overtime and of course are the first to be laid off. At all times material , except on one oc- casion when he was promoted to the sub category (as will be shown more fully), Sebzda was in the sub-sub catego- ry -Prior to May 1963, seniority at Cuneo was based on the date an employee obtained his card classification. However, about that time , on the basis of an opinion by the Union's attorney the Union began using the date of hire (regardless of the date that classification was ob- tained) to establish seniority . Frederick W. Day, who had been recording secretary of the Union during 1963, testified about a union meeting that took place on May 19, 1963, as follows: ... the president of the union, Eddie Irwin, had stated on the floor that he can recall this particular decision that was handed down by our union attor- ney, whereby a man's membership in our union would have no bearing on his seniority ; that under the law they would have to go by the date of hiring. That would be the ruling that was handed down by our union attorney. As a result, one of the members at the meeting , Brother Joe Savage, had questioned whether this ruling would abide throughout the entire city and the question actually wasn't answered, but Mr. Irwin had stated that this law had been invoked at the Allen , Lane and Scott Plant whereby the attor- ney had rendered the decision in the case against a fellow by the name of Potter who had went into the Allen, Lane and Scott Company with a card and they wanted to put him ahead of a man without a card in that particular shop and our attorney ruled that we cannot4 under the laws of the land, use this man's membership as a basis for seniority , and therefore Brother Potter would have to go in back of the man and the man that was in there without the card, his hiring date would be the dominating factor. As to what happened thereafter , Day testified further as follows: Following this ruling, I, as the chairman, had to adopt the ruling handed down by our union attorney and therefore I would have to abide by the rule that any seniority would have to be from the date that the man was hired . This is a ruling that was handed down and this is what-the union meeting of that date-this is what we all was told and this was the decision of the Executive Board that we would have to abide by that decision and I , as chairman, in my own department had to abide by that ruling and up until that time following that decision , this is how we ran it, according to the date the man was hired into that particular department. As indicated , the master agreement containing the above-quoted seniority provisions became effective May 1, 1964, and the supplemental agreement became effec- tive October 29, 1964. On December 14, 1965, the Union's attorney rendered an opinion that under the terms of the contracts it was now legal to base seniority on the date of card classification rather than the date of hire. This opinion was not immediately given effect in the rotary press department, however. John Sebzda, Jr., has worked steadily for the Respond- ent Company since August 1963 as an oiler in its rotary pressroom mostly on the third shift. About the time he was hired as a trainee3 two others were also hired as trainees - Manz and Kilpatrick. Sebzda had some high school training and a year or so of experience in printing shops at the time he was hired. He also was the son of a member of Respondent Union whose current employ- ment with Respondent Company dated back some 15 years. The three newly hired trainees appeared before the Union's executive board about 2 weeks after they were hired. There they were issued trainee cards by the Union and were told that it would be 2 years before they would receive their senior assistant's cards. At this time Sebzda inquired as to how the trainees would stand in seniority with respect to "card men" hired after the trainees were hired. He was told that "the card men would come first." According to his testimony , Sebzda "questioned this, knowing that it's not the way it worked in Cuneo. Joe Savage [presumably a member of the executive board] agreed that wasn't the way it worked at Cuneo and they let it go at that." The following day John Sebzda, Sr. (who had been present at the executive board meeting with his son), ap- proached Harry Burton, the Union's chairman4 for the third shift of the rotary pressroom, about the question of his son's seniority. Burton's comment was: I don't care what the executive board is trying to do down there but we at Cuneo date our seniority from the date we start to work, and that's it. Don't worry about anything. About a year later Sebzda began a campaign to get his senior assistant's card. He first tried Burton who refused to consider his request telling Sebzda that he would have to wait the full 2 years. Sebzda next appeared before the union executive board with his request and was turned down. Then about a month later Burton informed him that the Union was going to give him and the other two trainees their "union cards." Accordingly, they appeared before the executive board at the next meeting where the appropriate action was taken granting the cards. The fol- lowing day they received them at a general membership meeting. Sebzda's book or card (which was not the one he had been issued originally , but an identical one issued for the years 1965 and 1966), indicated that he was admitted into the Union in October 1964 by initiation as a senior assistant. Four different seniority lists or partial seniority lists were received in evidence . One is contained in a letter dated May 23, 1966, from the Union to Salvatore Bartucci, Cuneo's director of industrial relations. This list did not contain Sebzda's name but it did contain the names of W. Bracken , F. Miller, and D. Fusco. On this list the first two were shown to have received their "Jour- 3 The trainee program, whereby people with little or no experience might be hired "off the street," was discontinued sometime after Sebzda was hired. 4 I.e., Steward. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD neymen Assistant" cards in November 1965 while Fusco was shown to have received his in February 1965. Another list appears in an affidavit given by Bartucci to the Board which was based upon information supplied to him by the Union on or about June 7, 1966. This list shows that Sebzda and the other two trainees (Manz and Kilpatrick) received their cards in October 1964. On the most recent list (which the Company had prepared only a few days before the hearing based on company records and on information it had currently received from the Union) Sebzda, Manz, and Kilpatrick are shown to have received their cards on September 21, 1964, Miller and Bracken on October 16, 1965, and no date was shown for Fusco. Upon receiving his card, Sebzda paid an initiation fee of about $76 and began paying $10.50 monthly dues. His rate of pay did not change after he got his card. After he had been hired, but prior to the time Sebzda received his card, four men (Hart, Weber, Smythe, and Frye) were hired, all of whom had their card classification as senior assistants at the time they were hired. Neverthe- less, regardless of this fact and the terms of the agree- ments between the Union and the Company pertaining to seniority, Sebzda was repeatedly given preferential as- signments over them - assignments which by practice and the terms of the agreements were to go to men "with the highest seniority." In March 1966, an opening occurred in the sub catego- ry which by practice would go to the employee in the sub- sub category with the greatest seniority. By the terms of the agreements this would be the employee with the earli- est classification card. By this standard Hart, Weber, Smythe, and Frye were all in front of Sebzda even though he had been hired before they had. Nevertheless, Sebzda was promoted to the vacant sub position and the other four remained in the sub-sub category. Sebzda learned of the promotion from Union Chairman Burton who told him that he was the "new sub on the third shift." In July another opening developed - this time in the extra category to which (as the only one in the sub catego- ry) Sebzda could have expected promotion on the basis of what had gone on before. However, instead of his getting it, Hart was given the promotion. Sebzda was in- formed of this by Burton also. As to what Burton told him, Sebzda testified credibly and without denial: I asked Harry Burton why he [Hart] was moved in front of me. He said there had been a letter from the lawyer stating that from the date of issue, that your card men would come first over your non-card men; and seeing how when Bill Hart was hired I didn't have - I wasn't a member of the union, he was being put in front of me as far as seniority was con- cerned. He said this was the way he had heard it from the business agent, Mr. Douglas - that the card men would come first over the trainee. Sebzda then asked Burton about Weber, Smythe, and Frye and learned that they too now came before him in seniority.5 About a week after Hart moved up to the extra catego- ry, Sebzda "was knocked off the sub list" and Weber, having gotten a ruling on the matter from the Union's ex- ecutive board,s was placed on it. Thereafter Sebzda told Burton that he wanted to file a grievance on the matter. Burton told him that in view of the ruling Weber had received from the executive board, it would be "a waste of time to file a grievance" - that all the executive board would do would be to refer him to the letter from the Union's attorney. Sebzda then approached his foreman, Luke Irwin, to see if he could do anything about it. Irwin said that he would try. About a week later Irwin told Sebzda that he was sorry that he had been unable to do anything for him.7 Sebzda next turned to Salvatore Bar- tucci, the Company's director of industrial relations, and met with a similar result. Foreman Irwin (a dues-paying member of the Union) who, since February 1964, was general foreman of the third shift (and prior to that time a line foreman), testified in substance as follows: At the time that there were trainees working in the rotary pressroom8 he did not "par- ticipate in a decision as to when a trainee got the dues book" for the senior assistant classification. Nor, to his knowledge, did the line foreman who worked under him. Nor did he believe that since he had been made general foreman had he ever been consulted by the Union "in a yes or no situation" about whether an employee should get a card. He explained that by this he meant that he "might have discussed ... with the shop chairman the relative merits of people, but [had] never been the one to decide that the man would get a dues book or not." He could recall playing no part in Sebzda's obtaining his card. He could not recall very accurately the circum- stances of Sebzda's promotion as a sub-what it was based upon or who made the decision; but it was his "guess" that he "must have discussed it with the shop chairman, Harry Burton" because on his own initiative he "didn't raise people in seniority or put them down. There has always been cooperation with someone else, mainly the shop chairman." Nor did he have any idea how the decision was made to drop Sebzda from the sub category back to the sub-sub category. He learned about this from Shop Chairman Burton in the office when Burton told him "that there had been a decision made that Weber would succeed Sebzda, Jr. as the sub on the third shift" based on their respective card dates. He further testified in substance that only if a man were not qualified for a position would he "have anything to do with [his] seniority." According to Irwin's further testimony at the time that Hart, Weber, Frye, and Smythe were hired he would rate them and Sebzda according to ability in this order- Hart, Weber, Sebzda, Smythe, and Frye and that was his rating of them at the time Sebzda got his card. He did not inform the Union when Weber, Frye, and Smythe were hired or at any other time that he felt they were competent to get classification cards from the Union. Nor did the Union 5 In discussing this matter with Burton, according to Sebzda's undemed and credited testimony, Burton told him that the reason that Weber, Smythe, Frye, and Hart had seniority over him was not that they had received their senior assistant's classifications before he did but because they had become members of the Union before he did 6 After Sebzda was taken off the sub list, the position remained vacant for awhile. Sebzda asked Burton why one of the senior men was not put on the sub list Burton said that "he just wasn't doing it at that time." Accord- ing to Sebzda's testimony he told Burton that if the man was entitled to the job he ought to have it. In his testimony Irwin indicated that he had told Sebzda what he did "to calm him down at the time because he was very upset," that he "ac- tually did nothing" on Sebzda's behalf because the decision had already been made and "it was out of [Irwin's] hands." 8 The only time that such was the case so far as this record reveals in- volved the hiring and subsequent employment of Sebzda, Manz, and Kil- patrick. No trainee program was provided for in the labor agreements. CUNEO EASTERN PRESS INC. 527 ever ask his opinion or advice on the matter. He further testified that at the time Bracken, Miller, and Fusco got their classifications from the Union9 was of the opinion that they were not "qualified as journeymen." He had discussed Bracken and Miller with Burton telling him that he thought "that they were very good prospects and had a lot of potential," but by implication that they were not qualified for journeymen status. It was Irwin's further testimony that he went out of his way to personally see to it that Sebzda was given assignments that would afford him every opportunity to learn the business. About this matter Union Shop Chairman Harry Burton testified in part as follows:10 His duties were "to ad- minister the several lists ... such as the regular list, the extra list, the sub list, the sub-sub list." In the process he was responsible to the entire union body and complied with the "rules of the [Union's] Executive Board, busi- ness agent's interpretation, the [Union] lawyer's in- terpretation." Prior to 1963, the Union "had always in the past operated whereby a man's qualifications or card [emphasis supplied] ... always came first ...." Then a case arose in connection with another employer in Philadelphia that resulted in the decision that the date of hiring governed establishment of seniority "or, in other words, union membership [emphasis supplied] was not a factor in the seniority." From that point until July 1966, he "operate [d] the seniority on [his] shift in accordance with the date of hire for all men ...." With respect to Sebzda's employment, Sebzda got preferential treatment because of his father's employment at Cuneo. When asked who "would make" the determina- tion as to when Sebzda and the other trainees were qualified to be given assistant classifications Burton an- swered, "it would necessarily have to be made between the chairman and the foreman. There was no unilateral decisions made one way or the other." When asked if he and Foreman Irwin had made the decision as to Sebzda, he replied in the affirmative explaining that "it had to necessarily be agreed between the two of us." According to the testimony of the Union's business representative, Thomas Douglas, during the period when the trainee program was in existence at Cuneo, the train- ing period was set at 2 years after which "[t]he foreman and the chairman would consult as to whether a man was properly qualified ... to be put into a classification ... " Occasionally, a man might demonstrate the ability to progress quicker than the others. "In many cases, the foreman would talk to the chairman or the chairman would go to the foreman" about such men with the result that they would get their classifications before their 2- year traineeship had been worked and then they "even- tually became members of the Union." When asked if the date of their union membership was the same as the dates that they got their classifications, Douglas answered "Absolutely, no." Douglas also testified in substance that even if a person hired by Cuneo "off the street" had ex- perience, he would still be considered a trainee because he would not be familiar with the type of equipment used at Cuneo. However, if a man hired "off the street" al- ready had a classification card, he "is a member of the Union" and not a trainee notwithstanding that he too might not be familiar with -the type of equipment used at Cuneo. His classification status would be based upon his "overall experience in the industry because he wouldn't be a member of the union if he didn't have experience." IV. CONCLUSIONS I believe that on the basis of the record as a whole the General Counsel has proved the allegation of the com- plaint. The only issue in this case is whether or not the Union caused the Company to place Sebzda behind other employees in seniority solely on the basis of their prior union membership or card classification. Respondent maintained "that the thrust of the General Counsel's position is squarely contrary to the provisions of the parties' collective bargaining agreement" and that the agreement is legally "controlling as to any employees' seniority." Whether true or not on its face there is of course no attack on the agreement. But the record shows that the conduct of the parties often does not square with the provisions of the agreement. Two examples of this among others revealed by the evidence are the absence of an apprentice program called for by the agreement and the utilization of a trainee program not provided for in the agreement. There is no doubt that seniority rules may be established on any nondiscriminatory basis that parties to a collective-bargaining agreement may choose. Here, not- withstanding how the agreement may be interpreted, the inference from the record as a whole is fully justified that in actual practice the Union was permitted to exercise such control over the granting of the classifications upon which (by practice and the terms of the agreement) seniority standings are established so as to be discrimina- tory under the Act and to give rise to violations of Section 8(b)(1)(A) and (2) on the part of the Union and of Section 8(a)(1) and (3) of the Act by the Company. This is established by the testimony of Foreman Irwin which shows that the Company played no significant part in the decision of granting card classifications to employees. i t Illustrative of this is the action taken regarding Sebzda's card classification. Irwin's testimony that he guessed that he "must have discussed it with the shop chairman, Harry Burton" does not nullify his other testimony that he had nothing to do with the granting of Sebzda's classification. Nor does his further testimony that the establishment of seniority always involved "cooperation with somebody else, mainly the shop chairman" do so either. Of course the establishment of seniority involved cooperation between the Company and the Union. When the Union told the Company who had been made assistant press- man, the Company cooperated by according the em- ployees in question the seniority that their classifications thus called for. The only exception to this procedure was the possibility that the Company might be able to veto the Union's action in case the individual involved was patently unqualified. But even here the Company's 9 The two earliest seniority lists, supra, showed that Miller and Bracken received their cards in November 1965, and that Fusco received his in February 1965. The latest seniority lists, supra showed that Miller and Bracken got their cards in October 1965, and did not reveal a date when Fusco got his. 10 As so often in this type of case the General Counsel had to put in much of his evidence through witnesses who were connected with or identified with the Union. Although subpenaed by the General Counsel, Burton failed to appear on February 27 and 28, and only appeared on March 20 after enforcement proceedings had been instituted in the United States district court. 11 To the extent that Burton's testimony, or that of any other witness, would show the contrary, I do not credit it 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authority seems questionable. For instance, as regard the classifications of Bracken, Miller, and Fusco, Foreman Irwin did not consider them qualified and so informed the Union. Nevertheless, and notwithstanding Irwin's objec- ions, the three in question got their classifications. I also find that the granting of a card classification is synonymous with achieving membership in the Union. While we find Union Business Representative Douglas claiming "Absolutely, no" to this proposition, this was practically the only evidence offered by Respondent Union to counter the circumstantial evidence and Sebz- da's testimony to the contrary. As pointed out by the General Counsel it would have been a simple matter for the Union to prove its claim from its records. This it did not do. In this connection the Union does point, however, to one other aspect of the evidence. It claims that the evidence shows that the date of Sebzda's card classifica- tion was not the date of his joining the Union. In making this contention it apparently relies on the seniority list prepared by the Company just a few days prior to the hearing (and based upon information currently supplied by the Union) showing the date of Sebzda's card classifi- cation as being September 21, 1964.12 However, the seniority list supplied to Bartucci by the Union before un- fair labor practice charges were filed shows the date of Sebzda's card classification as being in October 1964. And October is the month that Sebzda was taken into the Union according to his dues book. Of the two lists I be- lieve that the one prepared ante litam motam is patently more reliable. Thus I find that the credible evidence established that Sebzda's card classification date was substantially the same as the date he achieved union membership,13 Having found that the practice engaged in by the Union and the Company in the establishment of the card classifi- cations of employees was discriminatory within the meaning of the Act and that the establishment of the clas- sification status of employees is synonymous and equated with the granting of "book membership" in the Union, I further find as alleged in the complaint that from July 18, 1966, Respondent Union caused and attempted to cause Respondent Cuneo to base Sebzda's seniority standing as an employee on the date of his book membership in Respondent Union in violation of Section 8(b)(1)(A) and (2) of the Act. I also find that since that date Respondent Cuneo has based Sebzda's seniority standing as an em- ployee in accordance with the date of his book member- ship in Respondent Union thus violating Section 8(a)(1) and (3) of the Act. In reaching the foregoing conclusions I have con- sidered certain defenses raised by Respondent in its brief and/or answer to the effect that: (A) any possible action here is barred by the 6-month limitation imposed by Sec- tion 10(b) of the Act; and (B) Sebzda's failure to file a grievance under the provisions of the collective-bargain- ing agreement bars any consideration of the matter by the Board. Clearly defense A is inapplicable unless the validi- ty of the contract is in issue which of course it is not. As for B the (acv does not require an exhaustion of the con- tractual remedies before resort can be had to the Board. Huttig Sash & Door Company, Inc., 154 NLRB 811, affd. 377 F.2d 964 (C.A. 8). In any event even if the law so required it would not bar the Board 's consideration here since Sebzda indicated to Union Chairman Burton that he wanted to file a grievance on the matter but was told that it would be futile to do so. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Employer and Respond- ent Union set forth in section III, above, occurring in connection with the Respondent Employer's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent Employer is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By basing the seniority of John Sebzda, Jr., on the date that he acquired book membership in the Union rather than on the date that he was hired, thereby en- couraging membership in the Union, Respondent Em- ployer has engaged in and is engaging in unfair labor prac- tices in violation of Section 8(a)(1) and (3) of the Act; and by causing Respondent to so act Respondent Union has engaged in and is engaging in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices affect com merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents Employer and Union have engaged in unfair labor practices violative of Sec- tions 8(a)(1) and (3) and 8(b)(1)(A) and (2) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section 10(c) of the Act, I issue the following: RECOMMENDED ORDER The Cuneo Eastern Press of Pennsylvania, Inc., its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in Local 4, International Printing Pressmen and Assistants' Union of North Amer- ica, AFL-CIO and Local 11, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, or any other labor organization, by basing the 12 Another seniority list was received in evidence upon the offer of the Union which showed the same date for Sebzda's classification This list, too, I find to have been currently prepared by the Union and long after un- fair labor practice charges had been filed. 13 It will be recalled that Sebzda testified that it was the day after the ex- ecutive board had granted him his classification that he was accepted into the Union at a general membership meeting. CUNEO EASTERN PRESS INC. 529 seniority standing of employees upon the date they become union members. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Reinstate Sebzda to his seniority position above Hart, Weber, Smythe, and Frye based upon his prior date of employment in the rotary press department of Respondent Employer, and jointly and severally with Respondent Union make him whole for any loss of pay or other benefits he may have suffered by reason of the discrimination against him. (b) Post at its place of business in Philadelphia, Pennsylvania, copies of the attached notice marked "Ap- pendix A."14 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent Employer's representative, shall be posted by Respondent Company immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the same condi- tions as set forth in paragraph (b) above, as soon as for- warded by the Regional Director of Region 4, copies of the attached notice marked "Appendix B." (d) Mail to the Regional Director of Region 4 signed copies of "Appendix A" for posting by Respondent Union at its business office and meeting halls where notices to members are customarily posted. Copies of said notice, on forms provided by the Regional Director, after being duly signed by an authorized representative of Respondent Employer, shall be returned forthwith to the Regional Director for transmittal to Respondent Union for posting. (e) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.15 B. Local 4, International Printing Pressmen and Assistants' Union of North America, AFL-CIO and Local 11, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, its of- ficers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause The Cuneo Eastern Press of Pennsylvania, Inc., or any other employer, to discriminate against its employees by basing the seniority standing of employees upon the date they become union members. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Jointly and severally with Respondent Company, make John Sebzda, Jr., whole for any loss of pay or other benefits he may have suffered by reason of the dis- crimination against him. (b) Post at conspicuous places in Respondent Unions' offices and meeting halls, in places where notices to members are customarily posted copies of the attached notice marked "Appendix B." 16 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by an authorized Respondent Unions' representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to all members are customarily posted. Reasonable steps shall be taken by Respondent Unions to insure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the same condi- tions as set forth in paragraph (b) above, as soon as for- warded by the Regional Director, copies of the attached notice marked "Appendix A." (d) Mail to the Regional Director for Region 4 signed copies of "Appendix B" for posting by the Respondent Employer. Copies of said notice, on forms provided by the Regional Director, after being signed by an authorized representative of Respondent Union, shall be returned forthwith to the Regional Director for transmit- tal to Respondent Employer for posting. (e) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.17 14 In the event that this Recommended Order is 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 15 In the event that this Recommended Order is 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 Re- spondent has taken to comply herewith." 16 Supra, In. 14. " Supra, in. 15. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT encourage membership in Local 4, International Printing Pressmen and Assistants' Union of North America, AFL-CIO and Local 11, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, or any other labor organization by basing the seniority standing of employees upon the date they become union mem- bers. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- 530 DECISIONS OF NATIONAL ercise of their rights to self-organization, to form, join, or assist labor organizations , to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such ac- tivities. WE WILL restore John Sebzda, Jr., to his seniority position above Hart, Weber, Smythe, and Frye based upon his prior date of employment in the ro- tary press department and make him whole for any loss of pay or benefits he may have suffered by reason of the discrimination against him. THE CUNEO EASTERN PRESS OF PENNSYLVANIA, INC. (Employer) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadel- phia, Pennsylvania 19106, Telephone 597-7601. APPENDIX B NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF THE CUNEO EASTERN PRESS OF PENNSYLVANIA, INC. Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in LABOR RELATIONS BOARD order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT cause or attempt to cause The Cuneo Eastern Press of Pennsylvania, Inc., or any other employer , to discriminate against its employees by basing the seniority standing of employees upon the date they become union members. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the National Labor Rela- tions Act. WE WILL make John Sebzda, Jr., whole for any loss of pay or benefits he may have suffered by reason of the discrimination against him. LOCAL 4, INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS' UNION OF NORTH AMERICA, AFL-CIO AND LOCAL I I, INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS' UNION OF NORTH AMER- ICA, AFL-CIO (Labor Organizations) 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. If members and employees have any question concern- ing this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Of- fice, . 1700 Bankers Securities Building, Walnut and Ju- niper Streets, Philadephia, Pennsylvania 19107, Telephone 597-7601.