Delaware Valley Printing

476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Delaware Valley Printing and Graphic Communica- whom Respondent has collective-bargaining agree- tions Union, Local 1776 and Pasquale Carlettini, ments." Jr., and The Bulletin Company , Party to the Con- 3. Substitute the attached notice for that of the tract. Case 4-CB-2339 Administrative Law Judge. October 18, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On April 23, 1976, Administrative Law Judge Samuel Ross issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The Charging Party filed a cross-exception and brief, and counsel for the Gener- al Counsel filed a brief in support of the Administra- tive Law Judge's Decision. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order as modified here- in 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Dela- ware Valley Printing and Graphic Communications Union, Local 1776, Philadelphia, Pennsylvania, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as herein modified: 1. Substitute the following for paragraph 1(a): "(a) In an unfair and/or discriminatory manner maintaining, enforcing, or otherwise giving effect to an exclusive hiring arrangement or practice with the Bulletin Company, Philadelphia Newspaper, Inc., Triangle Publications, Inc., or any other employer." 2. Insert the following as paragraph 2(b) and relet- ter the subsequent paragraphs accordingly: "(b) Maintain for a period of 6 months, and make available for inspection by the Regional Director for Region 4 or his agents, a written record of job refer- rals and requests for job referrals by employers with i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge' s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings 2 In agreeing with his colleagues that Respondent violated Sec 8(b)(1)(A) and (2) of the Act by failing and refusing to refer the six union members to available job openings, Member Fanning does not rely on the additional rationale of the Administrative Law Judge concerning Respondent's duty of fair representation, and the application of Miranda Fuel Company, Inc, 140 NLRB 181 (1962), and subsequent Board cases cited by the Administrative Law Judge for this principle. 3 We find merit in the Charging Party's cross-exception to the Adminis- trative Law Judge's failure to include in his recommended remedy a provi- sion requiring Respondent to maintain for 6 months, and make available for inspection by the Regional Director for Region 4 or his agents, a written record of job referrals and requests for job referrals by employers subject to collective-bargaining agreements with Respondent Cf. International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of Ameri- ca, AFL-CIO, et al (Considine Distributing Co.), 166 NLRB 915 (1967). We shall also modify the Administrative Law Judge's recommended Or- der and notice to make clear that Respondent is ordered to cease and desist from the discriminatory operation of its exclusive hiring hall arrangement or practice, but is not barred from maintaining or enforcing a nondiscrimina- tory exclusive hiring hall arrangement or practice APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT in an unfair and/or discrimina- tory manner maintain or give effect to an exclu- sive hiring arrangement or practice with the Bul- letin Company, Philadelphia Newspaper, Inc., Triangle Publications, Inc., or with any other employer. WE WILL NOT cause or attempt to cause the Bulletin Company, Philadelphia Newspaper, Inc., Triangle Publications, Inc., or any other employer to discriminate against Pasquale Car- lettini, Jr., William J. Bracken, Edward Haines, Leonard McAdams, James McCord, John Sebza, or any other applicant for employment as a pressman, because they engaged in union or concerted activities protected by Section 7 of the Act. WE WILL NOT restrain or coerce the above- named employees in the exercise of rights guar- anteed by Section 7 of the Act by failing to rep- resent them fairly and impartially in respect to referral for employment, or any other term or condition of employment. WE WILL NOT in any other manner restrain or 226 NLRB No. 58 DELAWARE VALLEY PRINTING 477 coerce the above-named employees, or any other employee, in the exercise of rights guaran- teed by Section 7 of the Act, except to the extent that. such rights may be affected by an agree- ment requiring -membership in a labor organiza- tion as a condition of employment as authorized by Section 8(a)(3) of the Act. WE WILL maintain for a period of 6 months, and make available for inspection by the Re- gional Director for Region 4 or his agents, a written record of job referrals and requests for the referrals by employers with whom we have collective-bargaining agreements. WE WILL notify- the Bulletin Company, Phila- delphia, Newspaper, Inc., Triangle Publications, Inc., and all other employers with whom we have collective-bargaining agreements that we have no objection to their employment of Pas- quale Carlettini, Jr., William J. Bracken, Ed- ward Haines,, Leonard McAdams, James Mc- Cord, and John Sebza, and that they will have full, fair, and impartial use of our employment referral services, and WE WILL furnish the above- named employees with copies of our certifica- tions -td the said employers. - WE WILL make Pasquale Carlettini, Jr., Wil- liam J."Bracken, Edward Haines, Leonard Mc- Adams, James McCord, and John Sebza whole for any, loss of earnings they may have suffered as a result of our discrimination against them. DELAWARE VALLEY PRINTING AND GRAPHIC COMMUNICATIONS UNION, LOCAL 1776 and magazine publishers in the Philadelphia area which conditions employment by the newspapers and magazines on the prior approval or clearance by Respondent, and that Respondent has failed and refused to refer Carlettini and a number of other printers to available jobs in the newspaper industry because they were members of another local of Respondent's International Union, and because they had processed internal union appeals to the Interna- tional Union to compel Respondent to accept them for membership. Respondent filed an answer which denies the substantive allegations of the complaint and the commis- sion of unfair labor practices. Upon the entire record, in- cluding my observation of the witnesses and their demean- or, and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT 1. COMMERCE The Bulletin Company and Philadelphia Newspaper, Inc., are publishers located in Philadelphia, Pennsylvania, of daily and Sunday newspapers which are sold and dis- tributed in the States of Pennsylvania, New Jersey, Dela-, ware, and other States of the-United States. Triangle Publi- cations, Inc., located in Philadelphia, Pennsylvania, is engaged in the business of printing magazines and newspa- per supplements. Each of these companies has a total busi- ness volume which exceeds '$500,000 annually, and pur- chases newsprint and other supplies valued in excess of $50,000 each year directly from sources located outside the Commonwealth of Pennsylvania. Upon the foregoing ad- mitted facts, Respondent concedes and I find that The Bul- letin Company, Philadelphia Newspaper, Inc., and Trian- gle Publications, Inc., are employers engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act: DECISION STATEMENT OF THE CASE SAMUEL Ross, Administrative Law Judge: This case was heard before me in Philadelphia, Pennsylvania, on Novem- ber 3, 4, and 5, 1975, based on a charge filed by Pasquale Carlettini, Jr., on October 7, 1974, and on a complaint which issued thereon on July 30, 1975, against Philadelphia Newspaper Printing Pressmen's Union No: 16,1 the prede- cessor of Delaware Valley Printing and, Graphic Commu- nications Union, Local 1776, herein Respondent. The com- plaint as amended at the hearing alleges that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) and Sec- tion 2(6) and (7) of the Act. More specifically, the com- plaint alleges that Respondent is a party to an agreement, understanding, and/or practice with various newspaper 1 The parties stipulated at the opening of the hearing that Respondent Delaware Valley Printing and Graphic Communications Union, Local 1776, is the successor to Philadelphia Newspaper Printing Pressmen's Union No 16, and that the,complaint be amended to reflect the change of Respon- dent's name. II. THE LABOR ORGANIZATIONS INVOLVED Respondent and Philadelphia Printing Pressmen,- Assis- tants and Offset Workers' Union No. 4, herein called Local 4, are labor organizations within the meaning of Section 2(5) of the Act. Both Respondent and Local 4 are subordi- nate local unions of International Printing and Graphic Communications Union, herein called the International - Union. III. THE UNFAIR LABOR PRACTICES A. Background In the early days of April 1974, Cuneo Eastern Press, Inc., herein called Cuneo, after many years of operation, closed down its printing operations in Philadelphia, Penn- sylvania, and terminated the employment of all its press- room employees. While it was operating, Cuneo had been a party to a union shop collective-bargaining agreement with Local 4, and its pressroom employees were all members of said local union. Upon their termination by Cuneo, about 10 of these employees, including Charging Party Carlettini, 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pursuant to the constitution and laws of their International Union,, requested and received traveling cards from Local 4 for the purpose of transferring their union membership to Respondent and obtaining employment through its referral services. This case had its genesis in the hostility which these employees, like those in a previous Board case involv- ing Respondent and The Bulletin Company, encountered when they went to Respondent's office to deposit their traveling cards and seek employment.' Respondent's refusal to accept their traveling cards. There- upon, on June 11, such individual appeals were filed with the International Union by Carlettini and the other former Cuneo employees. Two months later, on August 21, the International Union notified Business Manager Reilly by letter .(With a copy to Local 4) that the -traveling cards which the said employees had deposited with Respondent "must be accepted as specified under the Constitution and Laws of the International Union." 6 B. Respondent's Refusal To Accept the Traveling Cards From Local 4's Members - On, April 16, 1974,3 Carlettini, accompanied by nine for- mer Cuneo pressroom employees, took the traveling cards which they had obtained from Local 4 to Respondent's office and gave the cards to John J. Reilly, Respondent's business manager.4 Reilly looked over the cards and John Bloor, 1 of the 10, asked Reilly if he was accepting them. Reilly replied that he would "have to take it up" with his executive board, and he told the former Cuneo employees that their next monthly meeting would not occur until May 2. Carlettini then asked Reilly if the executive board's ap- proval "was necessary," and Reilly answered,"Iri this lo- cal, this is our procedure." Reilly-then told the group that it would not be, necessary for them to appear before the exec- utive board, and he suggested- that they designate one of their number as their "spokesman" to whom he would re- port the board's decision on May 3. The group then select- ed John Bloor as their representative and they all left Re- spondent's office. On May 2, Respondent's executive board met and refused to accept the traveling cards which the 10 former Cuneo employees had deposited with Reilly. According to Reilly, the reason for the said refusal was, "We do not accept traveling cards where people have not served in the newspaper apprenticeship indenture pro- gram." On May 3, the former Cuneo employees were in- formed that Respondent "wouldn't have anything to do with anybody from Local Union Number 4." C. The Appeals to the International Union From Respondent's Refusal To Accept the Traveling Cards Under the constitution and laws of the International Union applicable to, Respondent, it was obligatory for Re- spondent to accept the traveling cards which the former Cuneo employees had tendered, and the failure to accept the cards subjected Respondent and its business manager, Reilly, to possible fine and suspension.5 Accordingly, the former Cuneo employees filed a group appeal to the Inter- national Union from Respondent's refusal to accept their traveling cards. Several weeks later, the employees were notified that their group appeal was procedurally incorrect, and that they would have to file individual appeals from 2 See Bulletin Company 181 NLRB `647 (1970) 3 All dates hereinafter refer to 1974 unless otherwise noted 4 The nine who accompanied Carlettini on this occasion were William J Bracken, Edward Haines, Leonard McAdams, James McCord, John Bloor, William McTague, Thomas O'Donnell, Edward Alexander, and James Vo3gelei. See G C Exh. 2, art. VI, secs 14 and 16, pp 46-47. D. Respondent's Reluctant Acceptance of the Cuneo Employees' Traveling Cards The International Union's letter which ordered Respon- dent to accept the traveling cards of the former Cuneo employees was posted by Local 4 on the bulletin board at its office, and it was there observed on August 26 by sever- al of the employees who °had filed the appeals to the Inter- national Union. Four of-them immediately went in a group to Respondent's office.' They there fold Business Manager Reilly-that they had seen the International's letter on Local 4's bulletin . board, band they -asked Reilly when they would be accepted for membership in Respondent. Reilly ex- pressed displeasure that the International's letter, which he regarded as "private," had been- publicly posted, and he asked the four for their names and withdrew their traveling cards from his desk. He then told the four that Respondent was "a newspaper union," and "you people are not news- paper people." Reilly asked the four what kind of work they had done. They answered that they all had worked in Cuneo's pressroom on high speed, rollfed, rotary, rotogra- vure, and letterpresses for about 17-1/2 to 18 years each, and they described in detail the various job functions which they had performed. Reilly then reiterated, "You people are commercial people, and we don't take people from Local Number 4 into this local." Carlettini disputed the latter statement, and he reminded Reilly that he had accepted "Bob McManus and two men from Periodical Press into this local from Local Number 4." Reilly conced- ed that he had done so, but he said, "The only reason those men got into Local 16 was that he [Reilly] brought them in," and because they were satisfactory to him.'Reilly final- ly told the four former Cuneo employees that he had just returned from a vacation, that "his people did not [yet] know of this [the International' s] decision," that the four would have to appear before Respondent' s executive board, and that he needed a few days more time "to bring all of you people with these' traveler's cards into the union at the same time." s` - On September 5, about 13 former Cuneo employees who had deposited traveling cards with Respondent attended a meeting of its executive board pursuant to Respondent's instruction .9 The traveling cards of seven of these employ- ees indicated that they previously had been classified as 6 See G C Exh 8 Carlettini, Haines, McCord, and Bracken. The findings above are based on the credited testimony of Carlettini and Bracken , whom I regard as reliable witnesses 9 The 13 included 3 employees, John Monaghan, Edward Read, and John Sebza, who had deposited travel cards with Respondent after the first 10 named in fn 4, supra DELAWARE VALLEY PRINTING journeymen-pressmen at Cuneo.10 The other six former Cuneo employees had worked as senior assistants and their travel cards bore the classification of "assistants ." 11 When the 13 came before the executive board , Business Manager Reilly pointed a'finger at Bloor and said, "You. The word is out on you. You said you are tough [and] you can take care of yourself. Well, you'd better be tough because the word is out on you. I have no control over what my men might do. I wouldn't like to be in your shoes and- get a job here." Then, speaking to all the former Cuneo employees, Reilly said, "Our people don't want you people. . . . Our people know all of you people. I'm telling you, now, we have uncontrollable people in this union. Any bodily harm that comes to any of you, we the officers are not responsi- ble. Our people don't -want you.... I wouldn't want to be in your shoes, if and whenever any of you go to work." Respondent's president, Michael Vogel, then added, "You are not union men. You're nothing but a bunch of scabs. You're coming over,in this local and your only intention is to cause us a lot of trouble. You're being forced down our throats. You're nothing but a bunch of shit being forced down my throat, [and] as long as I live, you'll be sticking in 12 my throat." After the foregoing threats were voiced, Reilly told the former Cuneo employees that "the only- reason you are here tonight is that you people worked on rotogravure presses," and Respondent had two employers, Triangle Publications and Parade Publications, which used rotogra- vure presses. Reilly further stated that Respondent's mem- bers were "letter pressmen.'-' Carlettim and Bloor replied that they were letter pressmen also. Reilly then asked the former Cuneo employees to-leave the room while he con- ferred with the board. A short while later when the employees were called back, Reilly told their that whether they had been letter press- men at Cuneo or not, they were not "newspaper letter- pressmen," and "if you ever go to work, the, only place you're going to go to work [will be] on rotogravure press- es." Reilly then announced that the Cuneo pressmen whose traveling cards read "journeymen" would be accepted by Respondent, as journeymen, but that he didn't know what he was going to do with the men whose travel cards classi- fied them as "assistants," since the Respondent had no such classification in its local. Carlettini protested that he and the others were all "senior assistants," that they were journeymen, and he showed Reilly his "work card" which read "senior assistant." Reilly then again asked the former Cuneo employees to leave the room, and when they were invited back, he told them that they had been senior assis- 10 The seven so classified were Bloor , Alexander, Vogelei, McTague. Monaghan, O'Donnell, and Read 11 The six so classified were Corlettmi, McCord, Haines, Bracken, Mc- Adams, and Sebza. 12 The findings above are based on the uncontroverted testimony of Car- iettmi, Haines, and Bracken which is credited in these respects Although Reilly and Vogel testified for Respondent, they did not deny making these statements to the former Cuneo employees at the executive board meeting To properly appreciate the nature of Reilly's and Vogel's threats, one must be cognizant of what befell former members of Local 4 who, after Curtis Publishing Company closed down, were hired directly by The Bulletin Company without prior referral by Respondent See The Bulletin Company, 181 NLRB 647 (1970). 479 tants in Local 4, and they would be classified as "senior assistants in this local:' Carlettini again protested that the Curtis Publishing employees had been classified as senior assistants in Local 4 and had been accepted by the Re- spondent as journeymen and had been put to work. Reilly replied that he didn't know what kind of travel card the Curtis employees had deposited, he had "ripped them up," he had been "forced to put them to work," and that "no- body talks to them, nobody associates with, them and they are out by themselves." Carlettini-then asked Reilly how many classifications Respondent had in its local. Reilly an- swered that there were three, journeymen, apprentices, and flyboys. Carlettini asked, "How are you going to put us into a classification you don't even have?" Reilly re- sponded, "So, now we have four." Carlettini then asked Reilly whether the journeymen in, Respondent's local worked the reel as tension men, whether they took care of the` ink on the presses, whether they worked as second pressmen, and whether they took care of the folder and the register. Reilly admitted that Respondent's journeymen performed these functions. Carlettini then said, "That's the only kind of work we've ever done; these men and- me, we're journeymen." Reilly nevertheless persisted that he would accept the Cuneo employees in his local only in the way that their travel cards read. McCord then asked Reilly whether he would "be referred to go to work" with this "assistant" classification. Reilly answered, "No. You'll never go to work with that classification in this local. You people have a problem." Reilly then notified the former Cuneo employees that the dues of the journeymen would be $20.20 per month, that those of the "assistants" would be 15 cents less, and that all of the former Cuneo employ- ees would have to pay a $60 assessment in monthly install- ments of $2.50 "due to the case" which Respondent "lost with the government and the Curtis people." Reilly ex- plained that the assessment was being paid in monthly in- stallments so that Respondent's members "would never forget these Curtis people." One of the-former Cuneo em- ployees asked Reilly what the dues would be if they didn't work. Reilly responded, "We don't have that problem in this union. All of our people work." Reilly further stated that his members had, so much overtime and work that their only problem was "getting a day off." Reilly added that he "could (have) put 10, 15, 20 of you men to work in April." Reilly finally told the former Cuneo employees whose cards read "assistant" to return to Respondent's of- fice on September 10 to pay their dues and pick up their working cards. 'I According to Reilly and three members of the Respon- dent's executive board, Michael Vogel, Larry Magarace, and Michael Shohen, Reilly also told the former Cuneo employees whose prior classification had been senior assis- tants, that if they didn't like his decision, they had the right to go to any newspaper publisher and try to get a job, and that there were positions as flyboys available at the Inter- national Paper Company which corresponded to their abil- ity and experience. Carlettini, Haines, and Bracken denied that Reilly made the foregoing statements at the executive 13 The findings as to what transpired at the executive board meeting on September 5 are based on the credited testimony of Carlettini , Haines, and Bracken, which for the most part was uncontroverted. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD board meeting. In the light of Respondent's constitution and laws, article VIII, which requires chapel -chairmen and foremen, who are members of Respondent, "`to telephone their requirement [for substitutes] to the headquarters of the Local," which requires "unemployed members seeking work [to] report regularly to the Business Manager," and which provides that All substitutes must be furnished through the local's-headquarters," I place no credence what- soever in the testimony that Reilly, told the former-Cuneo employees that they were free to apply directly to the news- papers for jobs without referral by Respondent. 14 On September 10, Carlettini, Bracken, McAdams, and Sebza went to Respondent's office to pay their dues. A heated and extended discussion ensued between Carlettini and Reilly. Carlettini and his companions maintained that they were journeymen and should pay journeymen's dues, and Reilly' insisted that he would only accept them as assis- tants,-and that if they' didn't like it, "pick up your traveler cards and go back where` you came from." In the course of the"said, discussion, Carlettini asked Reilly whether he could go with" Respondent's "Working Card" to the news- papers and ask Respondent's chapel chairman for a job. Reilly replied, "get,this 'straight. You don't go to no chair- man nowhere, because when you go to a chairman, the chairman is going to know I sent you. You don't go to work{nowhere unless I sent(sic) you. You only go to work through me." Reilly then said that he would get in touch with Sol Fishko, the president of the International Union, and if the latter instructed him to change their classifica- tion, he would do so provided Fishko,"puts it in writing." Reilly added, "In- the meantime, you men are in limbo." 15 After paying his'dues to Respondent on" September 10, Carlettini wrote a letter to the president of the Internation- al Union on September 14 in which he protested the is- suance to him by Reilly, -of a working card with a classifica- tion that the "Local does not have," and with which he could not possibly obtain employment. In the letter, Car- lettini described in detail his work experience dining his approximately 18' years of employment by Cuneo,, and he noted the fact that he had completed the International Union's Rotary Journeyman's course and had received a certificate from the International attesting to his comple- tion of the course. Carlettini further stated in the letter that, during his last 10 years at Cuneo, he had worked frequently as a journeyman pressman, that he'had received pressman's pay and pressman's'vacation pay during 8 of his last years of employment by Cuneo based on the type of work that he had performed, and that when he was ter- minated by Cuneo, he had received 5 `weeks' severance pay as a pressman. Carlettmi explained in the letter that he had not changed his official classification at Cuneo to that of a journeyman pressman only because he wanted to preserve his seniority status as a senior assistant. Carlettini conclud- ed theletter with an appeal that Respondent be required to issue him a working card as a journeyman so that he could obtain 'suitable employment. On September 20, 'Interna- 14 See G C Exh 21 15 The findings as to the events at the September 10 meeting between Reilly and the assistants are based on the testimony of Carlettini and Brack- en, which I regard as reliable and credit tional Union President Fishko sent Carlettini an acknowl- edgment of the receipt of his letter in which he stated that he was sending a copy - of ^ Carlettini's letter "to Brother Reilly of Local 16.,"_1 Carlettini has heard nothing further from the International Union since his receipt of the letter of September 20. E. Respondent's Failure and Refusal To Refer the "Senior Assistants" to Positions Commensurate With Their Experience and Ability Following the reluctant acceptance by Respondent of the travel cards of the former Cuneo employees, the seven whose cards read `journeyman" were soon thereafter re- ferred' by Reilly to positions' with various newspaper and magazine publishers in the Philadelphia area, and they have worked for the said employers ever since. However, no .comparable treatment was accorded by Reilly to the six former Cuneo employees whose travel' cards read " assis- tant." In this regard, the record discloses as follows: On about October 3, Bracken, one of the former Cuneo employees whom Respondent had classified as assistant, visited Respondent's office to pay his union dues. While there, Bracken asked Reilly whether,he had Teceived any clarification from the International Union` in respect to "our correct classification." Reilly answered, "Yes," 11 Bracken then asked, "Where do we stand?" Reilly replied, "Look, I haven't got no work in the union." Reilly then said-that he had heard' that some of the men were 'applying -directly to the newspapers for jobs and that he wanted "to find out who they were." Reilly asked Bracken if he knew who was applying for jobs at the newspapers. Bracken an- swered, "No." Reilly then-asked Bracken whether he had "applied for a fob at any newspaper?"- Bracken replied that he had not. Reilly then said, "Don't do that. Don't go to any paper and apply for a job."-Bracken then asked Reilly what his-chances were of getting a job. Reilly replied that "everything was going smooth until Pat Carlettini went over my head" and wrote to the International Union de- tailing his work experience. Bracken responded, "If you' are going to blame Pat Carlettini, you may as well include me, also, because I agreed with the correspondence." Reilly re- torted, "Oh, you're one of'those guys." Bracken answered, "I guess I am." Reilly then said, "I couldn't give you a'job now, if you were my own cousin or my own brother."' He added, "I haven't got no work in the union." 1e 16 See G C. Exhs. 9 and 10 iTAt the hearing in this case, Reilly testified that he had written to Presi- dent Fishko of the International Union for clarification of the classification status of the six senior assistants, and that he had received a response to his inquiry Although Respondent stated that it would produce the said corre- spondence, it has not done so I infer from the said failure to produce the said letter and response, and from my lack of regard for the reliability of Reilly's testimony, in general, that no such correspondence exists. See, e g , N LR B v. United Mineral & Chemical Corporation, 391 F.2d 829, 833 (C A 2, 1968), where the Court said- the . evidence was of the very sort warranting a trier of the facts in believing the truth to be the opposite of what was assertedl Is The findings above are based. on the credited testimony of Bracken, which for the most part was uncontroverted. In respect to this conversation, Reilly's only testimony was that he said to Bracken that he would not change his classification "the same as I would not change my own son's or brother's classification." I do not credit Reilly's version for I regard his DELAWARE VALLEY PRINTING Thereafter, notwithstanding that the record clearly re- veals that The Bulletin Company and the other newspaper and magazine publishers in the Philadelphia area who had collective-bargaining agreements with Respondent regu- larly had to utilize large numbers of the Respondent's members on their days off and pay them overtime premi- um pay in order to meet their staffing requirements, Carlet- tini and the five other former Cuneo employees who had been classified as assistants were not referred by Reilly to any of the said newspaper jobs which clearly were avail- able. In fact, they were not referred to any jobs at all until after Carlettini filed the unfair labor practice charge against Respondent in the instant case, and then only to part-time or other jobs unsuitable for employees with their ability and long years of experience in the printing trades.19 F. Analysis of the Testimony and Concluding Findings I. The hiring agreement and practice As previously noted, the complaint in this case alleges that Respondent is a party to an agreement, arrangement, understanding and/or practice which conditions the hire or employment of journeymen pressmen by The Bulletin Company and by other newspaper and magazine pub- lishers in the Philadelphia area on membership in, or clear- ance or approval by, Respondent. Respondent denies that it has any such agreement or understanding with the said publishers, and it contends that the employers have the right and authority to hire employees as they see fit. The collective-bargaining agreement between Respondent and the Newspaper Publishers Association of Philadelphia, Inc., to which The Bulletin Company and other Philadel- phia newspaper publishers are signatories, provides in this respect that "The Union agrees to furnish at all times, on reasonable notice, competent and skilled Pressmen for the Publishers' regular force or extra work." In practice, all regular and extra pressmen and substitutes with few excep- tions are hired by the newspaper publishers only through Respondent and its chapel chairmen. This occurs in the following manner: At the newspapers and at Triangle Publications, the em- ployers' operations are such that it is impossible to de- testimony as generally unreliable and unworthy of much credence, and I consider Bracken to be a truthful witness. 19 For example, on November 22, Reilly wrote to Carlettini and Bracken, with a copy of Respondent's counsel, asking if they were available for work as a flyboy, a job performed by beginners in the industry and clearly not compatible with their prior experience as pressmen See G C. Exhs. 13 and 15. One month later, Carlettini received a letter from Reilly, copies of which were sent to Respondent's counsel, to the Board's agent assigned to the instant case, and to the president of the International Union , which referred Carlethnc to a position at the Olney Printing Company. See G. C. Exh. 11. When Carlethnc went to the said company to apply for the job, he learned that the shop was nonunion and the job was on a press on which Carlettini had no prior work experience. When, after being rejected for the job, Carlet- bni complained to Reilly for sending him to a nonunion shop, Reilly retort- ed, "I can send you anywhere I want." I conclude from the foregoing that the said referrals were made, not for the purpose of providing suitable em- ployment to Carlettmm and Bracken, but rather for their use by Respondent in defending against Carlettini's charge of unfair labor practices. 481 termine much in advance the exact number of journeymen that will be required to man the presses. The size of the crew is dependent on the number of pages that will be printed. Because of the variances in the number of employ- ees that will be needed, and the shortage of regularly em- ployed journeymen, the employer's foremen regularly noti- fy Respondent through its chapel chairmen of the number of extra or outside men that will be needed to man the presses. They in turn, as required by Respondent's consti- tution and laws, notify the "Local's headquarters" and an effort is made to supply the publishers' needs with outside or extra men. However, as the publishers' records in evi- dence attest, relatively few outside men are supplied by Respondent, and the rest of the publishers' requirements generally are met by Respondent by assigning the employ- ers' regular pressmen to work .on their days off or on other than their regular shifts. This has resulted in substantial overtime work for Respondent's members at premium pay. And, when the chapel chairmen are unable to obtain the extra men needed to man the shift, the publishers make no effort to secure the needed additional men and allow the shift to "not be covered." Respondent contends that the publishers utilize it and its chapel chairmen for meeting their pressmen requirements only as a matter of convenience, and not by reason of any agreement, understanding, or practice. That contention is belied, however, by Respondent's conduct when The Bulle- tin Company attempted to hire journeymen pressmen, who had formerly worked for Curtis Publishing Company and were members of Local 4 without the Respondent's ap- proval20 In the said Bulletin Company case, the Board found and the court of appeals agreed that notwithstand- ing the language of the quoted, provision of the collective- bargaining agreement between Respondent and the News- paper Publishers Association of Philadelphia, Inc., to which The Bulletin Company was a signatory, the parties maintained and enforced an understanding, arrangement, and practice which conditioned employment of journey- men -pressmen upon prior clearance and/or approval by Respondent. The testimony in the instant record regarding the manner in which the almost constant need of the news- paper publishers for extra and substitute journeymen pressmen are filled by Respondent and its chapel chairmen clearly discloses that there has been no change in the prior understanding, arrangement, and/or practice of Respon- dent and the publishers since the Bulletin Company case, supra. Respondent argues that no such understanding or practice exists because the publishers have refused to ac- cept its proposals to incorporate an exclusive hiring hall provision in their collective-bargaining agreement with Re- spondent. I find no merit in this contention for it proves only that the publishers are not willing to reduce to writing the understanding and practice which was found to exist in the Bulletin Company case, supra, and which I find is still in effect 21 , - 20 See The Bulletin Company, supra. 21 My conclusion above is further supported by Reilly's statements to the former Cuneo employees that they were not permitted to go to any newspa- per for employment unless he sent them there. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The discriminatory treatment accorded the former Local 4 members The complaint alleges that Respondent failed and re- fused to refer Carlettmi, McCord, Bracken, Haines, Mc- Adams, and Sebza for employment by The Bulletin Com- pany, or to other job opportunities in the newspaper and magazine industry in the Philadelphia area because they had been members of Local 4, and because they had uti- lized internal union processes to compel Respondent to ac- cept their traveling cards from Local 4. Respondent does not dispute the fact that the six alleged discriminatees were not referred by it to jobs in the newspaper and magazine industry, but it contends that this failure and refusal was motivated, not by their former Local 4 membership or by their appeal to the International Union which compelled it to accept their traveling cards, but by their lack of qualifi- cations for work in the newspaper printing industry. In support of this contention, Respondent argues that its fail- ure to refer the six to jobs for the newspapers could not have been motivated by hostility based on their Local 4 membership or their appeal to the International Union, inasmuch as the Respondent had promptly referred seven other Local 4 members whose cards read `=journeymen" to newspaper jobs after the International Union had com- pelled it to accept their travel cards. I regard this conten- tion and argument as specious. The record clearly discloses that Respondent bore hostil- ity to all the former Local 4 members because they be- longed to a rival "commercial" local, because they had been "forced down [Respondent's] throats" by the Interna- tional Umon, and because they had been "sitting over there laughing" when Respondent lost its case involving the former Curtis Publishing Company employees who had been hired by The Bulletin Company despite Respondent's bitter opposition. Until the International Umon forced Re- spondent to comply with its constitution and laws and ac- cept the traveling cards of all the former Cuneo employees who had been members of Local 4, Respondent had re- fused for ,5 months (while the 'appeal to the International was pending) to admit any of the appellants to its member- ship, including those whose travel cards read "journey- man." In the light of the scarcity of available journeymen in the newspaper printing industry, Respondent really had no alternative after the International's decision on the ap- peal but to refer those classified as journeymen to the jobs which the newspaper and magazine publishers practically always had available for outside pressmen to man its shifts. Respondent referred the sevenLocal 4 journeymen to the said jobs,' not because of any absence of hostility towards the former Local 4 employees who had been "forced down their throats" by the International Union, but in spite of its continued hostility towards them. Thus, on September '5, Business Manager Reilly warned Bloor, one of the seven journeymen who had been spokesman for the former Local 4 members, that he had "better be tough for the word was out on him, and he (Reilly) could not control and would not be responsible" for what his men might do. In fact, Reilly admittedly told the Local 4 members at the Septem- ber 5 executive board meeting that he was referring those with journeymen cards to work because he had been obli- gated to do so by the International's order. I therefore re- gard as poppycock the argument that the belated referral of the seven Local 4 journeymen to newspaper jobs attests to a lack of hostility to the former Local 4 members. As noted above, Respondent contends that it did not refer the six alleged discnminatees to newspaper jobs be- cause of their lack of qualification for work in the newspa- per industry. Reilly testified in this respect that he based his determination that the six were unqualified on the fact that they were classified as senior assistants and because they had not "served an indentured newspaper apprentice course." Reilly admitted, however, that the seven former Local 4 members whose cards read "journeyman" and whom he had referred to newspaper jobs had not served an indentured newspaper apprentice course, and he also ad- mitted that he had received no complaints regarding their work. In fact, at least three of the six alleged discrimina- tees, although classified as senior assistants at Cuneo, had taken and passed the same indentured apprentice training course as the seven who were classified as journeymen, and they had received journeymen certificates attesting to such completions22 In addition, all six of the alleged discrimina- tees had advised Reilly in detail regarding their many years of experience in the printing trades. Reilly was thus cogni- zant that, despite their traveling card classification as assis- tants, the six alleged discnminatees were qualified press- men. Moreover, even assuming arguendo that Reilly did not know their qualifications, he,obviously could neverthe- less have referred the six to the clearly available jobs in the newspaper industry and let the, publishers determine for themselves whether or not they were qualified. I conclude from all the foregoing that the assertion that the six were not referred to newspaper jobs because of their lack of qualifications is a transparent pretext which Re- spondent has seized upon as a device by which it could continue to discriminate against them in respect to em- ployment in the newspaper and magazine industry.23 I fur- ther conclude that Reilly failed and refused to refer the six allegedldiscriminatees to the clearly available jobs in the newspaper industry because of Respondent's continuing hostility to them based on their prior membership in Local 4 and their appeal to the International Union from Re- spondent's refusal to accept their, travelers cards. These clearly were activities protected by Section 7 of the Act. Accordingly, in the light of the understanding and practice between Respondent and the newspaper publishers in the Philadelphia area which conditioned employment by the publishers upon the prior approval or clearance by Re- spondent, I find that, by failing and refusing to refer Car- lettini, Bracken, McCord, Haines, McAdams, and Sebza to the job openings at the newspaper and magazines, Respon- dent engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the, Act .24 22 The three were Carlettim, McCord, and Haines 23 By failing to refer the six to newspaper jobs, Respondent was thus assuring to that extent the continuation of overtime work at premium pay in the newspaper industry for its other members who already worked for the newspaper publishers 24 International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, Local 8 (Considine Distributing Co,) 166 NLRB 915 (1967) DELAWARE VALLEY PRINTING Moreover, even assuming arguendo that there was no agreement or understanding and practice between Respon- dent and-the newspaper publishers which conditioned em- ployment by the latter upon the prior clearance or approv- al by Respondent, I would still conclude that Respondent violated Section 8(b)(1)(A) of the Act by its failure and refusal to refer the six alleged discriminatees to newspaper jobs. I base this conclusion on the following consider- ations: When Respondent, pursuant to the order of its Interna- tional Union, accepted the six alleged discriminatees as members and accepted their dues, it became obligated as their statutory representative to deal fairly with them and to represent them in a manner untainted by considerations or classifications which are invidious , capricious, irrele- vant, or arbitrary.25 The Respondent thus became: obligated to offer to all its members the same access to and use of those services which it provides members to facilitate their acquisition of employment , as for ex- ample, a hiring hall, and may not treat certain mem- bers disparately because they have engaged in activi- ties which are protected by the Act 26 By its selection as bargaining representative, Respondent became the agent of all the employees , and it was charged with the responsibility of representing all of their interests fairly and impartially.27 In this respect the Board has stated in The Carlson Corporation, 189 NLRB at 367: Once the Respondent has undertaken the task of help- ing to , find jobs for its members it has accepted the correlative duty that it must act in an "even-handed" manner towards all its members without discrimina- tion based on the exercise of Section 7 rights. That duty was violated by Respondent in the Winter case,28 by its refusal to accept Winter's traveling card and to refer him for employment. In the instant case, it is quite obvious that in the light of the clear availability of pressmen 's jobs in the newspaper and magazine industry in the Philadelphia area , and the extensive use by the newspapers and magazines of Respon- dent's facilities for filling its needs for pressmen , Respon- dent violated its duty of fairly representing all its members by its refusal to refer the six alleged discriminatees to the available job openings . And, since as found above, Re- spondent's said failure was based on the protected concert- ed activities of the, six, to wit, their former membership in Local 4 and their appeal to the International Unit from Respondent's refusal to accept their travelers ' cards, I find and conclude that Respondent thereby engaged in unfair labor practices within the-meaning 'of Section 8(b)(1)(A) of the Act29 25 Miranda Fuel Company, Inc, 140 NLRB 181 (1962) 26 Hoisting and Portable Engineers, Local No 4 (The Carlson Corporation), 189 NLRB 366, 367 ( 1971), See also Chauffeurs Union, Local 923, Teamsters (Yellow Cab Company), 172 NLRB 2137 (1968) 27 The Wallace Corporation v. N L R B, 323 U.S 248, 255 (1944) 28 Local Union No 13, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, etc Alfred Winter, (Mechanical Con- tracting Assn.)„212 NLRB 477 (1974) 29 Miranda Fuel Company, supra, Hoisting and Portable Engineers, Local 4, supra; Chauffeurs Union, Local 923, supra, Local 13, Plumbers, supra IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 483 The activities of Respondent set forth in section III, above, occurring in connection with the- operations of The Bulletin Company, Philadelphia Newspaper, Inc., and Tri- angle Publications, Inc., set forth in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in unfair labor practices, I will recommend that it cease and desist there- from and take certain affirmative action designed to effec- tuate the purposes of the Act. Having found that Respondent, The Bulletin Company, Philadelphia Newspaper, Inc., and Triangle Publications, Inc., are parties to and have maintained in effect an agree- ment, understanding, or practice which conditions the hire or employment of pressmen by the said companies upon prior clearance or approval by Respondent, I will recom- mend that Respondent be required to cease maintaining and/or giving effect to the said agreement, understanding, and/or practice. Having further found that Respondent violated Section 8(b)(1)(A) and (2) of the Act by failing and refusing since April 16, 1974, to accept the traveling cards of Pasquale Carlettini, Jr., William J. Bracken, Edward Haines, Leo- nard McAdams, James McCord, and John Sebza, and by failing and refusing to refer them for employment by The Bulletin Company, Philadelphia Newspaper, Inc., and/or by Triangle Publications, Inc., first because they had been members of Local 4, and later also because they had ap- pealed to the International Union from Respondent's re- fusal to accept their traveling cards, I will recommend that Respondent be required to make them whole for any loss of earnings they suffered as a result of Respondent's said discrimination by the payment to each of them of a sum of money equal to that which he would have earned as wages from April 16, 1974, but for the said discrimination, less his net earnings elsewhere during the said period. Loss of earn- ings and interest thereon at 6 percent per annum shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962)., Respondent will also be ordered to notify in writing the above named and all other employers with whom it has collective-bargaining agreements, and to furnish copies to the above-named employees, that it has no objection to their employment by the said companies, and that they will have full, fair, and impartial use without discrimination of the employment referral services which Respondent pro- vides for its members. On the basis of the foregoing findings of fact and on the entire record herein, I make the following: 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent and Philadelphia Printing Pressmen, Assistants and Offset Workers' Union No. 4 are labor or- ganizations within the meaning of Section 2(5) of the Act. 2. The Bulletin Company, Philadelphia Newspaper, Inc., and Triangle Publications, Inc., are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By maintaining, enforcing, and giving effect to an agreement, understanding, and/or practice which condi- tions the hire or employment of pressmen by the above- named companies upon membership in and prior clearance or approval by Respondent, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(b)(2) and (1)(A) of the Act. 4. By disciminatorily failing and refusing since April 16, 1974, to refer Pasquale Carlettini, Jr., William J. Bracken, Edward Haines, Leonard McAdams, James McCord, and John Sebza for employment by The Bulletin Company, Philadelphia Newspaper, Inc., and/or by Triangle Publica- tions, Inc., because of their nonmembership in Respondent and their exercise of rights protected by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(l)(A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, and in the entire record in the case, I here- by issue the following recommended: ORDER 30 The Respondent, Delaware Valley Printing and Graphic Communications Union, Local 1776, Philadelphia, Penn- sylvania, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Maintaining or giving effect to any agreement, un- derstanding, and/or practice with The Bulletin Company, Philadelphia Newspaper, Inc., Triangle Publications, Inc., or any other employer, which conditions employment of pressmen on membership in and prior clearance or approv- al by Respondent. (b) Causing or attempting to cause The Bulletin Compa- ny, Philadelphia Newspaper , Inc., Triangle Publications, Inc., or any other employer, to discriminate against Pas- quale Carlettini, Jr., William J. Bracken, Edward Haines, Leonard McAdams, James McCord, John Sebza, or any other applicant for employment , by failing and refusing to refer them for employment by the said employers because of nonmembership in Respondent , or because he engaged in any concerted . activity protected by Section 7 of the Act. 30 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes (c) Restraining or coercing Pasquale Carlettini , Jr., Wil- liam J. Bracken, Edward Haines, Leonard McAdams, James McCord, and/or John Sebza in the exercise of rights guaranteed by Section 7 of the Act, by failing to represent, deal with, or treat them in a fair and impartial manner in respect to referral for employment, or any other term or condition of employment. (d) In any other manner restraining or coercing Pas- quale Carlettini, Jr., William J. Bracken, Edward Haines, Leonard McAdams, James McCord, John Sebza, or any other employee or applicant for employment in the exer- cise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as au- thorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Notify in writing The Bulletin Company, Philadel- phia Newspaper, Inc., Triangle Publications, Inc., and all other employers with whom Respondent has collective- bargaining agreements that Respondent has no objection to the employment by them of Pasquale Carlettini, Jr., Wil- liam J. Bracken, Edward Haines, Leonard McAdams, James McCord, and John Sebza, and that they will have full, fair, and impartial use without discrimination of the employment referral services which Respondent provides for its members, and furnish copies of, the said notifications to the above-named employees. (b) Make Pasquale Carlettini, Jr., William J. Bracken, Edward Haines, Leonard McAdams, James McCord, and John Sebza whole for any loss of earnings they may have suffered as a result of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Post in conspicuous places at Respondent's business offices, meeting halls, and places where notices to its mem- bers are customarily posted copies of the attached notice marked "Appendix." 31 Copies of said notice, on forms provided. by the Regional Director for Region 4, after being duly signed by an authorized representative of Re- spondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members and employees are customarily posted . Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Delivery to the Regional Director for Region 4 signed copies of said appendix for posting by The Bulletin Company, Philadelphia Newspaper , Inc., and Triangle Publications, Inc., in places where notices to employees are customarily posted, if the said employees are willing to do so. (e) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 31 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted By Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."