337 NLRB 608
New York Post
608
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Newspaper and Mail Deliverers’ Union of New York
and NYP Holdings, Inc., d/b/a New York Post.
Cases 2–CC–2429 and 2–CE–183
May 31, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
On February 22, 2001, Administrative Law Judge El
eanor MacDonald issued the attached decision. The
General Counsel, the Charging Party, and the Respon
dent filed exceptions and supporting briefs. The Charg
ing Party filed an answering brief and a brief in support
of the judge’s decision, and the Respondent filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied.2
I. UNLAWFUL ENFORCEMENT OF SECTION 11-A.1
OF THE CONTRACT
The judge found that the Respondent Union violated
Section 8(e) of the Act by entering into and enforcing
section 11-A.1 of its collective-bargaining agreement
with NYP Holdings, Inc. (Holdings), publisher of the
New York Post. She also found that the Union violated
Section 8(b)(4)(ii)(A) by resorting to arbitration with an
object of forcing or requiring Holdings to enter into an
agreement prohibited by Section 8(e). The judge further
found that the Union violated Section 8(b)(4)(ii)(B) by
resorting to arbitration with an object of forcing or re
quiring Holdings to cease doing business with United
Media or its successor, D.S.A.
We agree with the judge’s findings.3 Section 11-A.1
provides that
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis
trative law judge’s credibility resolutions unless the clear preponder
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We will substitute a new notice in accordance with our recent deci
sion in Ishikawa Gasket American, Inc., 337 NLRB 175 (2001).
3 We agree with the judge that Union Business Agent DeMarzo testi
fied that the use of a nonunion wholesaler instead of a union signatory
wholesaler to deliver the Post on Long Island violated the collective-
bargaining agreement. We do not rely on her finding that witnesses
Cotter and Lee testified to the same effect.
[t]o the extent permitted by law, the Publisher shall not
distribute its newspapers or any of its other publications
through any wholesaler or news company making dis
tribution in any part of the Metropolitan area, as herein
defined, unless such wholesaler is under written collec
tive agreement with the Union or is willing to enter into
written collective agreement as provided for in this sec
tion.
As the judge found, section 11-A.1 is a classic example of a
union signatory subcontracting clause that has a secondary
objective in that it seeks to regulate the labor policies of
other entities over which Holdings has no right of control.
Accordingly, it falls within the general proscription of Sec
tion 8(e). See, e.g., Iron Workers (Southwestern Materials),
328 NLRB 934, 936 (1999). As the judge also found, the
work in question—the distribution of the New York Post in
Nassau and Suffolk Counties on Long Island—for the most
part, historically had not been performed by members of the
bargaining unit and was not fairly claimable by the Union.
The Union’s attempt to obtain the work for the employees
of C & S, a union signatory employer, therefore had an
unlawful secondary objective, and was not an attempt to
retain or recapture unit work for members of the bargaining
unit. See, e.g., Teamsters Local 282 (D. Fortunato, Inc.) ,
197 NLRB 673, 677 (1972).4 Finally, as the judge found,
the Union violated Section 8(b)(4)(ii)(A) and (B) by resort
ing to the contractual grievance procedure to enforce section
11-A.1 and obtain an order from the impartial chairman
requiring Holdings to cease distributing the Post on Long
Island via United Media and D.S.A. See, e.g., Service Em
ployees (Nevins Realty Corp.) , 313 NLRB 392 (1993), enfd.
in relevant part 68 F.3d 490 (D.C. Cir. 1995); Elevator
Constructors (Long Elevator) , 289 NLRB 1095 (1988),
enfd. 902 F.2d 1297 (8th Cir. 1990).
Teamsters (California Dump Truck), 227 NLRB 269,
274 (1976), cited by the Union, is distinguishable.
There, the Board held that the Union did not violate Sec
tion 8(b)(4) by processing grievances based on 8(e)
clauses, because it did not appear that the grievances
were filed in order to accomplish an unlawful object.
Rather, they were filed as a means of enforcing a color-
able contract right. Here, by contrast, the Union brought
its grievance to the impartial chairman in order to ac
complish an unlawful object—preventing the subcon
tracting of delivery work to a nonunion company.
4 The unlawful character of sec. 11-A.1 is not changed by the fact
that it begins by stating, “To the extent permitted by law.” See Essex
County District Council of Carpenters, 141 NLRB 858, 862, 869
(1963), enf. denied on other grounds 332 F.2d 636 (3d Cir. 1964).
337 NLRB No. 91
NEWSPAPERS & MAIL DELIVERERS (NEW YORK POST )
609
II. UNLAWFUL ENFORCEMENT OF SECTION 3-E
OF THE CONTRACT
Having found that the Union violated Sections 8(e)
and 8(b)(4) by enforcing section 11-A.1, the judge found
it unnecessary to decide whether the Union also unlaw
fully enforced section 3-E of the contract. The General
Counsel and Holdings have excepted to the judge’s fail
ure to find the additional violations. For the reasons dis
cussed below, we find that the Union violated Section
8(b)(4), but not Section 8(e), by attempting to enforce
section 3-E.
Section 3-E provides that
[s]ubject to the side letters and memoranda attached
hereto, the methods and extent of direct delivery and
combined delivery through wholesalers or news com
panies as they exist within the Metropolitan Area at the
time of the effective date hereof are to be continued,
and no change can be made except by application to
and with the approval of the Joint Conference Commit-
tee.
The General Counsel and Holdings do not contend that sec
tion 3-E is unlawful on its face, and we find that it is not.
The literal language of section 3-E does not specifically
forbid, or even address, the use of nonunion distributors on
Long Island. As Holdings explains, the provision simply
prohibits Holdings from switching from “direct” to “com
bined” delivery without the Union’s consent. (As the judge
stated, “direct delivery” refers to delivery made by employ
ees of Holdings. “Combined delivery,” also called “indirect
delivery,” refers to delivery made by employees of other
companies that have collective-bargaining agreements with
the Union.)
A facially valid contract provision may violate Section
8(e) if it is authoritatively construed by an arbitrator as
having a meaning that is inconsistent with Section 8(e).
Such a construction will provide the necessary “agree
ment” for an 8(e) violation. See Sheet Metal Workers
Local 27 (Thomas Roofing), 321 NLRB 540 (1996).
Thus, if the impartial chairman had interpreted section 3-
E as meaning that Holdings could not, under the contract,
distribute the Post through nonunion wholesalers, section
3-E as interpreted would be an unlawful 8(e) clause.
Here, the impartial chairman issued a ruling (a “status
quo order”) that Holdings could not, consistent with the
contract, increase the number of papers being delivered
by United Media on Long Island. As the judge found,
however, that ruling apparently was based on section 11-
A.1, not section 3-E. Thus, we can find no “agreement”
based on the status quo order. Nor is there any evidence
that Holdings intended for section 3-E to be interpreted
in a way that would violate Section 8(e). Accordingly,
we find that there was no agreement by the contracting
parties that would convert section 3-E into an unlawful
clause, and that the Union therefore did not violate Sec
tion 8(e) by entering into and maintaining or attempting
to enforce section 3-E.
We do find, however, that the Union violated Section
8(b)(4) by invoking section 3-E as a basis for its griev
ance against Holdings. The Board has held that a union
violates Section 8(b)(4) by filing a grievance based on a
reading of a portion of the collective-bargaining agree
ment that would effectively convert it into an unlawful
Section 8(e) provision.
Elevator Constructors (Long
Elevator) , 289 NLRB at 1095. The Union admits that it
relied on section 3-E before the impartial chairman.
And, as the judge found, the Union had a secondary ob
jective in pursuing its grievance. Accordingly, the Union
violated Section 8(b)(4)(ii)(A) and (B) by resorting to
arbitration against Holdings based on section 3-E. We
shall modify the judge’s recommended Order and notice
accordingly.
III. RESPONDENT’S SECTION 10(B) DEFENSE
The Union argues that no violation can be found be-
cause none of its unlawful conduct took place within the
10(b) period.5 We find no merit in this argument. Sec
tion 10(b) is an affirmative defense that is waived if not
raised in a timely fashion.
Public Service Co., 312
NLRB 459, 461 (1993). The Union did not assert Sec
tion 10(b) in its answer to the complaint or at the hear
ing; it raised the issue for the first time in its posthearing
brief to the judge. In these circumstances, we find that
the Union has waived its 10(b) defense by not asserting it
in a timely manner. Id.6
ORDER
The National Labor Relations Board adopts the rec
ommended Order of the administrative law judge as
modified below and orders that the Respondent, News-
paper and Mail Deliverers’ Union of New York, its offi
cers, agents, and representatives, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 1(c).
“(c) Seeking to enforce or apply section 3-E of the col
lective-bargaining agreement, through the grievance and
arbitration procedure, where an object thereof is to force
or require NYP Holdings, Inc. to enter into any agree-
5 Sec. 10(b) provides, in relevant part, that “no complaint shall issue
based upon any unfair labor practice occurring more than six months
prior to the filing of the charge with the Board and the service of a copy
thereof upon the person against whom such charge is made[.]”
6 Thus, we do not find it necessary to rely on the judge’s finding that
the Union “maintained and reaffirmed” its reliance on sec. 11-A.1 at a
meeting in January 1999.
610
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment that is prohibited by Section 8(e) or to cease doing
business with United Media, its successor D.S.A., or any
other person.”
2. Substitute the attached notice for that of the admin
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio
lated the Federal labor law and has ordered us to post and
obey this notice.
Section 11-A.1 of our collective-bargaining agreement
with NYP Holdings, Inc., which prohibits distribution of
the newspaper by any wholesaler that does not have a
contract with us, has been found to be unlawful under
Section 8(e) of the Act.
WE WILL NOT enter into, give effect to, or enforce sec
tion 11-A.1 of our collective-bargaining agreement with
NYP Holdings, Inc. through the grievance-arbitration
provisions of the collective-bargaining agreement.
WE WILL NOT seek to enforce or apply section 3-E of
the collective-bargaining agreement, through the griev
ance and arbitration procedure, where an object thereof is
to force or require NYP Holdings, Inc. to enter into any
agreement that is prohibited by Section 8(e) or to cease
doing business with United Media, its successor D.S.A.,
or any other person.
WE WILL withdraw our grievance relating to newspa
pers to be delivered by United Media or its successor
D.S.A.
WE WILL request that the impartial chairman lift the
status quo order issued in August 1998.
NEWSPAPER AND MAIL DELIVERERS’ UNION OF
NEW YORK
Geoffrey E. Dunham, Esq., for the General Counsel.
J. Warren Mangan, Esq. and J. Kenneth O’Connor, Esq.
(O’Connor & Mangan), of Long Island City, New York, for
the Respondent.
Elliot S. Azoff, Esq. (Baker & Hostetler), of Cleveland, Ohio,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, on 5 days between
March 28 and July 5, 2000. The Complaint, as amended, al
leges that the Respondent has violated Section 8(b)(4)(ii)(A)
and (B) and Section 8(e) of the Act.1 The Respondent denies
that it has engaged in any violations of the Act.
Upon the entire record, including my observation of the de
meanor of the witnesses and after considering the briefs filed
by the parties on October 17, 2000, I make the following2
FINDINGS OF FACT
I. JURISDICTION
NYP Holdings, Inc. is a New York corporation with an of
fice at South Street, New York, New York, where it is engaged
in publishing a newspaper known as The New York Post. The
parties agree, and I find, that NYP Holdings, Inc. is an em
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that Newspaper and Mail De
liverers’ Union of New York (the NMDU) is a labor organiza
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The New York Post is often described as the oldest continu
ously published newspaper in America, having been founded in
1801 by Alexander Hamilton. From 1976 through 1988 The
New York Post was owned by News America Publishing, Inc.
The ultimate corporate parent of News America Publishing is
News Corporation, a South Australia company with numerous
worldwide subsidiaries.
In 1988 News America Publishing
sold The New York Post in order to comply with FCC cross-
ownership rules. By March 1993 the newspaper was operating
under the supervision of the Bankruptcy Court and on Septem
ber 14, 1993, the court approved a purchase of the paper by
NYP Holdings, a subsidiary of News America Publishing.3
Before NYP Holdings purchased the paper the publisher’s rep
resentatives had negotiated a new collective-bargaining agree
ment with the NMDU. The publisher had also negotiated new
1 The charges herein were filed on May 11, 1999 alleging a violation
of Sec. 8(b)(4)(ii)(A) and (B) and on May 14, 1999 alleging a violation
of Section 8(e).
2 The record is hereby corrected so that at page 15, line 21, the
phrase reads “to the three means of delivery”; at p. 16, line 9 and
throughout the record thereafter where “CNS” appears the correct name
is “C & S”; at p. 39, line 13 the phrase should read “economic viabil
ity”; at p. 45, line 2 and thereafter the record should show that Mr.
Mangan was posing questions to the witness; at p. 105, line 11, the
phrase should read “from the plant”; at p. 117, line 14, the phrase
should read “resolve the 8(e)”; at p. 126, line 20 and thereafter, the
correct name is “Mr. Kalikow”; at p. 133, line 13, the phrase should
read “the Post’s objectives”; at p. 179, line 25 the phrase should read
“the application of an illegal clause”; at p. 188, lines 10–11, the per-
son’s name is “Victor Strimbu”; at p. 199, line 12, the phrase should
read “The Union made those sorts of arguments”; at p. 261, line 1, the
phrase should read “I’m asking this witness in his position”; at p. 261,
line 20, the transcript should show that Mr. Azoff was questioning the
witness; at p. 307, line 5, the record should show that the ALJ gave the
explanation following the words “I know”; at p. 478, line 23, the phrase
should read “I have not given permission for surrebuttal.”
3 The FCC issued a waiver of its cross-ownership rules. The actual
purchase by NYP Holdings took place on October 1, 1993. A more
complete recital of these events is contained in the ALJ decision in NYP
Acquisition Corp., 332 NLRB 1041 (2000).
NEWSPAPERS & MAIL DELIVERERS (NEW YORK POST )
611
contracts with most of the other unions representing the news-
paper’s employees. A major objective of the publisher in the
negotiations with the NMDU as well as with the other unions
was to achieve new collective-bargaining contracts that would
enable the newspaper to operate more economically. Indeed,
the publisher’s representatives had informed all the unions
when the negotiations began in the spring of 1993 that no pur
chase would take place unless significant labor savings were
agreed to in the new collective-bargaining agreements.
The NMDU has represented the drivers and related titles
employed by the successive publishers of the newspaper for
many years. The oldest collective-bargaining agreement intro
duced in the instant proceeding dates back to the period 1948-
1950. The contract negotiated in 1993 has a term from October
1, 1993 to October 31, 2003.
The witnesses called by the General Counsel in the instant
proceeding testified convincingly that the earliest contract pro
posals made by the publisher’s representatives to the NMDU
during the 1993 negotiations were not based on the previous
collective-bargaining agreements.4 As the negotiations pro
gressed, however, the Union continued to insist that many of
the old provisions should be retained. The current agreement
recites that:
In order to facilitate the process of arriving at agreement
on a new collective bargaining agreement, the Publisher and
the UNION agreed that the “yellow books” contract previ
ously in effect between New York Post Co., Inc. and the
UNION shall be incorporated into the new collective bargain
ing agreement between the parties except as modified and/or
changed by the Memorandum of Agreement entered into on
October 1, 1993.
The New York Post is produced at 210 South Street in New
York City. The paper is distributed in New York City and be
yond. The five boroughs or counties comprising New York
City are Queens, the Bronx, Brooklyn (Kings County), Staten
Island, and Manhattan (New York County). Distribution within
the five boroughs is termed “City distribution.” Long Island,
another area to which the newspaper is distributed, consists of
Nassau and Suffolk counties. Two other areas relevant to this
case are Westchester County, New York, and Hoboken, New
Jersey. Delivery to these places, which are within the greater
metropolitan New York area, is termed “suburban distribution.”
The newspaper is also sold in more distant locations and distri
bution to these areas is termed “country distribution.”
Various terms were employed in this proceeding to describe
methods of delivery: “Direct delivery” occurs when employees
of the publisher bring newspapers to the retail outlets from
which they are sold to the public. “Combined delivery,” also
known as “indirect delivery,” occurs when the publisher’s em
ployees bring newspapers in bulk to an independent wholesaler
who is signatory to a contract with the Union. The wholesaler
then breaks down the orders and delivers them to various retail
accounts. “Alternate delivery” is the term used when the pub
lisher’s employees bring the papers to an independent whole
saler who is not signatory to a contract with the NMDU. The
4 The old NMDU contracts were known as “yellow books.”
wholesalers whose employees are not represented by the
NMDU are sometimes referred to as “bootleggers.”
Various portions of the collective-bargaining agreement
were cited by the parties herein.
Section 1 provides, in part:
The territory in and for which the terms and conditions herein
contained shall be effective shall be the Metropolitan Area
which, for the purposes of this Agreement, is defined as the
corporate limits of the City of New York and all territory em-
braced within a radius of approximately fifty miles from Co
lumbus Circle in the City of New York bounded approxi
mately as follows:
To include all of Long Island to Montauk Point; . . . .
Section 2 of the contract lists the various titles in the unit
and states,
the Publisher recognizes the Union as the exclusive represen
tative for collective bargaining of all its employees engaged in
the [listed] operations.
Section 3 provides in part:
3-E. Subject to the side letters and memoranda attached
hereto, the methods and extent of direct delivery and com
bined delivery through wholesalers or news companies as
they exist within the Metropolitan Area at the time of the ef
fective date hereof are to be continued, and no change can be
made except by application to and with the approval of the
Joint Conference Committee.
3-F. In the development of new sections or new routes within
the Metropolitan Area, the Publisher shall be free to use a di
rect or a combined delivery through wholesalers or news
companies as it may see fit and it may from time to time
change from one form to another as it may find desirable.
A letter dated October 1, 1993 entitled “Clarification of
Method and Extent” provides:
The post (sic) acknowledges that the collective bargain
ing agreement prohibits the subcontracting of bargaining unit
deliveries except as it may exist pursuant to the contract.
Section 11 provides in part:
11-A.1. To the extent permitted by law, the Publisher shall
not distribute its newspapers or any of its other publications
through any wholesaler or news company making distribution
in any part of the Metropolitan Area, as herein defined, unless
such wholesaler is under written collective agreement with the
Union or is willing to enter into written collective agreement
as provided for in this section.
Section 15 provides that grievances which cannot be settled
at the plant level are to be referred to a four person Joint Con
ference Committee. Issues which cannot be resolved by the
Joint Conference Committee shall be submitted to an Impartial
Chairman.
A supplemental agreement or side letter was negotiated
during the negotiations for the October 1, 1993 contract. The
side letter provided for a “Circulation Growth Program,” stat
ing, inter alia:
612
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[T]he Publisher will put into effect the following Circu
lation growth program and may discontinue said program if it
becomes uneconomical to continue it . . . . It is the objective
of the parties to preserve the work traditionally performed by
members of the bargaining unit by working dealer outlets not
currently being directly serviced by the Publisher into the
Publisher’s direct delivery system.
Another side letter entitled “Addendum to the Agreement”
established a Circulation Growth Committee composed of three
Union representatives and three management representatives.
The letter stated:
The placing of new dealers onto existing Post routes may re
sult in hardships and that any hardships incurred will be ad-
dressed immediately . . . .
The Circulation Growth Committee shall endeavor to add
new dealer outlets obtained from news companies or whole
salers to direct Post routes . . . .
B. The Facts
John Amann, the vice president of circulation and labor rela
tions of The New York Post, is responsible for distributing the
paper and for administering the collective-bargaining agree
ment on behalf of the employer. Amann described the circula
tion amounts and methods of distribution of the paper.
Amann stated that 90 percent of the deliveries in New York
City are direct deliveries by bargaining unit members. Of the
other 10 percent, some papers are brought by the bargaining
unit members to independent wholesalers such as Mitchells for
home delivery within the five boroughs of the City. Mitchells
has been in business for “quite a while”; it does not have a col
lective-bargaining agreement with the NMDU. Amann also
presented a document which showed that some newspapers are
distributed within the five boroughs by D.S.A. a wholesaler that
is not under NMDU contract.5 D.S.A. is a subsidiary of News-
day.
Amann testified that there is no direct suburban delivery.
Delivery to Nassau and Suffolk counties on Long Island is
indirect: unit employees bring the paper to two wholesalers, C
& S and D.S.A.6 C & S, a subsidiary of the New York Times
Company, is signatory to a collective-bargaining agreement
with the NMDU. C & S delivers about 37,500 papers per day
to Long Island retailers. D.S.A. delivers about 4100 papers per
day to Long Island. C & S delivers papers to Connecticut, New
Jersey and outlying counties surrounding New York City.
These same areas are also served by D.S.A. and by wholesale
dealers such as Peekskill News, M & M News, All County
News, and Transalliance, none of which have agreements with
the NMDU. According to Amann, the bargaining unit member
who delivers papers to All County News and M & M News for
5 D.S.A. is sometimes referred to in the record as Distribution Sy s
tems of America. D.S.A. was until recently known as United Media.
In the past, it was known as Media Masters. At various points compa
nies known as American and Pelham merged with Media Masters. To
further confuse matters, an entity known as Transalliance broke off
from D.S.A.
6 C & S is occasionally referred to in the record as City & Suburban.
distribution in Rockland County, New York, is Tommy
Lendico, a chapel chairman and a member of the executive
board of the NMDU. The Union has not objected to the use of
these non-signatory wholesalers by the publisher.7
Amann testified that all wholesale distributors are required to
maintain computer generated systems that show their draw, that
is the number of newspapers they handle, as well as the number
of retail dealers to whom they distribute the papers.
There is an exception to the rule that the publisher does not
engage in direct delivery outside the five boroughs. About
2667 copies are delivered direct to 58 dealers in Hoboken, New
Jersey, on the H1 route. Further, between 1987 and January
1998, there was direct delivery of the newspaper on two routes
in Nassau County known as N1 and N2. These routes consisted
of a circulation of about 4000 per day out of a total Long Island
circulation at that time of 25,000 per day. In 1996 the publisher
sought to convert the H1 and N1 and N2 direct delivery routes
to indirect routes over the objections of the NMDU. The Union
urged that Section 3-E prevented any change in the method of
delivery. The dispute was eventually the subject of an award
issued by the impartial chairman in January 1998. The chair-
man construed Section 3-E of the contract as requiring the pub
lisher to continue to make direct deliveries to those geographi
cal areas where it had previously delivered direct unless another
contractual provision permitted a change. Thus, the employer
was required to continue the Hoboken direct delivery route.
However, the chairman found that the language of Section 3-F
permitted the employer to change from direct to indirect deliv
ery on new routes and thus it could change to indirect delivery
on routes N1 and N2. The chairman found that these routes
were new routes in the development process because most of
the dealers in Nassau County were serviced by indirect delivery
unlike New York City where direct delivery was well estab
lished. This dispute did not involve an attempt to have the
papers delivered by a non-signatory wholesaler.
In his award the chairman noted that the parties acknowl
edged that there is alternate delivery outside of New York City
as well as in the five boroughs of the City.
Amann testified that the purpose of the Circulation Growth
Committee was to convert indirect distribution to direct distri
bution in the five boroughs of New York City.8 By switching
to direct delivery, the publisher would be able to avoid paying a
commission to a wholesaler. Amann oversaw the work of the
committee. The members of the committee looked at com
puter-generated
information
from
wholesalers,
including
United Media, to identify retail dealers drawing more than 15
copies of the paper.9 If a retail account drew 15 or more copies
7 Amann’s testimony about the Union’s acquiescence in alternate de-
livery was echoed by Joseph Steo, a driver from 1977 to 1994. Steo
delivered papers to nonunion companies such as Pelham, American
Periodical, N & M and Media Master. Steo testified that drivers bid on
the various routes and that the NMDU chapel chairmen ran the bidding
system.
8 Amann acknowledged that the agreement itself does not limit the
work of the committee to the five boroughs but he maintained that the
object was to preserve unit work in the five boroughs.
9 The computer records are called galleys. Amann testified that he
regularly furnishes the Union with information concerning the whole-
NEWSPAPERS & MAIL DELIVERERS (NEW YORK POST )
613
it was economically feasible for the publisher’s trucks to make
the delivery. The committee sought to work those deliveries
into existing routes and to address any hardships to employees
resulting from adding new dealers onto their routes. Another
result of the committee’s work was to add five or six new
routes in the five boroughs. The committee was disbanded at
the end of 1994 or the beginning of 1995 because it had com
pleted its task. Those retail accounts that drew fewer than 15
copies were left with independent wholesalers.
Joseph Steo, the employer’s Director of Operations since
1995 and a driver from 1977 to 1994, was a member of the
NMDU’s negotiating committee from 1992 to 1994. He at-
tended all the bargaining sessions leading to the 1993 contract.
Steo recalled that the Union’s position in the 1993 negotiations
was to press for as much direct delivery as possible both in
New York City and on Long Island. Moreover, Steo said that
the Union’s position had always been that any deliveries in the
metropolitan area had to be through Union members. He noted
that Section 11-A.1 of the collective-bargaining agreement
required that if the publisher used a wholesaler the wholesaler
must employ NMDU members. In 1993 the Union wanted to
convert a lot of suburban deliveries into direct deliveries but
after much discussion it became clear that this was not feasible
for the publisher or the Union. As a result, the Union focussed
on deliveries in New York City. Although the Union had
wanted the paper to institute direct delivery for all papers in the
five boroughs, the Union compromised and accepted the estab
lishment of the Circulation Growth Committee to add as many
direct routes as possible. The Committee and the Circulation
Growth Program mentioned in the contract are the same. Steo
said that the Union did not intend the jurisdiction of the com
mittee to extend beyond the five boroughs.
Anthony Michele, the publisher’s director of operations for
the day site, testified that he was the circulation director for the
paper in 1993 and a member of the employer’s negotiating
team. Michele recalled that the purpose of the Circulation
Growth Committee was to curtail losses and to try to regain
circulation. With these ends in mind, the Committee put as
many New York City retail outlets as possible on direct deliv
ery. A separate committee composed of labor and management
representatives including Michele looked at delivery beyond
the five boroughs. But that committee did not recommend any
changes because the present indirect system of delivery was
cheaper than the cost of men and equipment which would have
been required to convert to direct suburban delivery.10
Victor Strimbu, Jr., Esq., has been labor counsel to The New
York Post for many years. Strimbu attended all the 1993 nego
tiations with the NMDU. According to Strimbu the Union
committee initially presented a proposal to convert to direct
delivery in Westchester County and Long Island. The parties
discussed the fact that alternate delivery was taking place be
yond the five boroughs of New York City. Management gave
the Union the galley sheets showing how deliveries were being
salers who distribute the paper and the draw attributable to each of
them.
10 Steo was a Union member of this separate committee and he de-
scribed its work in similar terms.
made beyond New York City and at least three meetings were
held to discuss the economic feasibility of direct delivery. The
company analysis showed that it would incur a loss of 22 cents
per paper if it converted to direct delivery on Long Island.
Eventually this idea was dropped. However, the discussions
resulted in the formation of the Circulation Growth Committee
to try to establish more direct deliveries in the five boroughs.
Strimbu testified that the committee’s task was limited to the
five boroughs.
Strimbu testified that the publisher’s initial contract proposal
in 1993 had eliminated Section 11-A.1 because the company
believed that the provision was unlawful. After discussions
during which the Union insisted that the article be included in
the collective-bargaining agreement the company dropped its
demand to delete Section 11-A.1.
Strimbu testified that in the fall of 1994 the so-called Amin
controversy arose at the paper. The Union filed a grievance
alleging that Amin, the paper’s Home Delivery Manager, was
diverting papers ostensibly destined for home delivery to non-
signatory wholesalers on Long Island.
Strimbu attended a
grievance meeting on October 7, 1994 where Union business
agent Don Roberts asserted that Amin’s actions constituted a
violation of Section 11-A.1. Strimbu prepared several draft
settlements, but none of them were signed because the issue
faded away. The drafts mention that the Union alleged a viola
tion of Section 11-A.1.
Amann testified that many small retailers on Long Island
were not carrying The New York Post. In 1996 the publisher
began developing a plan to add 10,000 or 12,000 papers to the
United Media draw on Long Island so that it could deliver to
retailers handling fewer than ten papers per day.11 The plan
was to be implemented in August 1998 by delivering an addi
tional 2500 papers to United Media.
The NMDU objected to the increased delivery by United
Media. At the Union’s request arbitrator Richard Adelman, the
impartial chairman under the collective-bargaining agreement,
issued an oral order on August 21, 1998 requiring the publisher
to restore the situation to its original state.12 This order is re
ferred to by the parties herein as the status quo order. The im
partial chairman confirmed the order in writing on August 27.
He wrote in part:
For some period of time, the Post has been delivering about
15,000 copies to Media Masters, a non-Union wholesaler. In
or about August 1998, Media Masters became United Media,
and Newsday owns 51% of United Media. Effective August
24, United Media was to begin using Newsday drivers, repre
sented by another union, for delivery of about 2500 copies of
the Post, and the Post increased the number of papers going to
United Media beginning August 14 to about 20,000 copies.
The Union asked for a status quo order preventing the Post
from delivering the increased number of newspapers to
United Media. Based on the Chairman’s reading of the
Agreement, the Chairman issued an order to the Post to cut
the total number of newspapers to be delivered to United Me
dia by 2500 copies, i.e., by the number of Post newspapers
11 United Media was the precursor to D.S.A.
12 No written grievance was filed.
614
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that were expected to be delivered by Newsday drivers, pend
ing a hearing on Wednesday, August 26, 1998.
At the hearing on August 26, 1998, after a general discussion,
the parties agreed to have a meeting with C & S Delivery Sy s
tems, with the Chairman, in an effort to reach an acceptable
resolution of this issue. The Chairman continued the status
quo order pending the outcome of this meeting.
Michele recalled that in August 1998 the NMDU representa
tives told him that they objected to Newsday because it was not
a Union shop.
Elliot Azoff, Esq., has represented the publisher for labor
negotiations since 1990. He testified that in August 1998 he
was informed by Steo and Michele that Adelman had issued a
status quo order to the effect that the publisher could not con-
tract for new routes on Long Island. Azoff telephoned Adel
man to object to issuance of the status quo order and Adelman
scheduled a time for the parties to argue the correctness of the
order.13
The hearing took place on August 26. Azoff argued that
Section 11-A.1 was an illegal clause. Azoff urged that Adel
man’s award concerning routes N1 and N2 had ruled that Long
Island was an exclusively indirect delivery territory and Azoff
argued that wholesalers did not have to be in a contractual rela
tionship with the NMDU. According to Azoff, the Union re
ferred to Section 1 of the contract relating to territorial cover-
age. The Union said that because the coverage includes the
entire metropolitan area, then the Union could require that only
Union wholesalers distribute the paper in that area. The Union
cited the circulation growth program and urged that Section 11-
A.1 permitted it to require that wholesalers be signatories with
the NMDU. The Union said that Section 11-A.1 is not illegal
because it begins “to the extent permitted by law.” The Union
said that the work relating to the new stops on Long Island was
unit work whether or not the work had been performed by the
unit in the past. However, if the publisher used a wholesaler it
had to be a Union wholesaler. The Union also cited Section 3-
E and the October 1, 1993 letter appended to the contract enti
tled “Clarification of Method and Extent.”
Strimbu testified that he was present at the August 26 hear
ing. He stated that Union labor counsel J. Warren Mangan,
Esq., argued on behalf of the NMDU that the attempt to have
Newsday deliver papers on Long Island was a violation of Sec
tion 11-A.1 of the contract. Azoff replied that the clause was
unlawful and that the impartial chairman should not consider it.
The chairman ruled that he would not deal with the legality of
the clause and that the parties had to get that resolved by an-
other body.
Azoff told Adelman that although C & S was the main deliv
erer for the newspaper it would not handle small stops. The
NMDU then told Adelman that C & S would indeed handle the
proposed stops and Azoff said if that were so the employer
would use C & S. Adelman suggested that he meet with the
parties and C & S to work on the issue. Such a joint meeting
13 This hearing concerned the continuation of the status quo order
only, because the order had been issued ex parte, but it did not deal
with the underlying merits of the grievance according to Azoff.
was held on September 25, 1998. A second similar joint meet
ing was held in January 1999. Despite these efforts to convince
C & S to handle the extra papers, it became clear that C & S
would not agree to service additional accounts on Long Island
because it was not economically feasible for it to deliver to
such small accounts.
After the efforts to have C & S deliver to the new stops
failed, Azoff telephoned chairman Adelman and asked him to
lift the status quo order. Adelman replied that Section 11-A.1
had been in the collective-bargaining agreement for many years
and that he would not declare it unlawful. Adelman was will
ing to grant a hearing on the merits of the grievance, that is
whether the publisher had the right to assign the work to News-
day. But Adelman warned Azoff that he would not decide the
legality of Section 11-A.1. He was prepared only to decide the
intent of Section 11-A.1. Under those circumstances, the em
ployer did not ask for a hearing on the merits.
Michele testified that in January 1999 he and Amann and
Steo attended a Joint Conference Committee meeting with the
impartial chairman and representatives of the NMDU including
James DeMarzo. As a result of the two meetings Adelman had
conducted with the Union, the employer and C & S, it had be-
come clear that C & S would not service the smaller stops in
Long Island. At the Joint Conference Committee meeting the
employer asked Adelman to lift the status quo order. Adelman
stated that he had to rule on the basis of the language of the
collective-bargaining agreement. When the publisher’s repre
sentatives objected that the language of Section 11-A was ille
gal, Adelman replied that he would not rule on the law because
that was an issue for a different venue. Michele reported the
substance of this meeting to Azoff.
According to Amann, the 1998 dispute arose only when the
publisher sought to increase the number of papers going to
United Media to service the new accounts. The NMDU did not
seek to have all papers for Long Island delivered direct. The
NMDU told Amann that it wanted to get the additional papers
delivered by trucks operated by its members. The Union was
willing to have the new routes serviced by C & S employees.
However, if C & S employees did not do the work, then some
Union officials demanded that the publisher create new direct
delivery routes to Long Island. This was not an economical
solution. Moreover, the creation of new routes might have
caused some C & S employees who currently delivered the
paper on Long Island to be displaced. For this reason, some
other Union officials told Amann that the Post could not create
new direct routes on Long Island. Amann testified that after
the issuance of the status quo order he attended a January 1999
meeting where the chairman attempted to mediate an agreement
for C & S to service more accounts on Long Island. DeMarzo
and other Union representatives were in attendance. C & S said
that it could not deliver to the small accounts unless it got some
wage relief from the NMDU.
Joseph Cotter is the secretary/treasurer of the NMDU and he
has been a negotiator for the Union for a number of years.
Cotter testified that in 1993 the Union asked the employer for
the same direct delivery as had been in effect at The Daily
News, that is, direct delivery in the five boroughs and on Long
Island. The publisher replied that direct delivery in Nassau and
NEWSPAPERS & MAIL DELIVERERS (NEW YORK POST )
615
Suffolk would not be profitable and so the parties concentrated
on increasing direct delivery within the five boroughs. The
parties agreed that routes being served by alternate delivery
would be brought back to direct delivery through a circulation
growth committee. Cotter maintained that during these negotia
tions the publisher never told the Union that there was alternate
delivery beyond the five boroughs and he denied that the Union
was provided with galleys giving details of both suburban and
City deliveries. Cotter gave his opinion that the “methods and
extent” language of Section 3-E of the contract was not violated
by the use of C&S for indirect deliveries in Long Island. How-
ever, Cotter stated that if the publisher used a non-union whole
saler to deliver the paper on Long Island that would violate
Section 3-E. Cotter avoided answering questions about section
11-A.1 and tried to give the impression that he did not know
what it meant.
Robert E. Lee worked for The New York Post from 1984 to
February 2000. Lee served on the wage scale committee for
the NMDU and he was one of the lead negotiators for the Un
ion in the 1993 negotiations. Lee recalled that the big issue in
the negotiations was to convert alternate delivery in the five
boroughs to direct delivery. The circulation growth committee
was formed for this purpose. The Union also discussed direct
delivery beyond the five boroughs. Lee claimed that he was
never informed that the paper was delivered by alternate deliv
ery beyond the five boroughs. Lee denied that he ever main
tained that the use of alternate delivery on Long Island would
violate Section 11-A.1. Lee said that the method and extent
language of Section 3-E governed the use of alternate delivery.
If the publisher wished to expand deliveries on Long Island it
would have to be through the use of direct delivery. But Lee
also said that C & S could be used to deliver to new locations
on Long Island although Media Masters could not be used be-
cause the parties had agreed that the non-union operation would
not be expanded. Lee impressed me as an evasive witness who
did not recall facts helpful to the General Counsel even when
these facts were supported by documentary evidence.
James DeMarzo has been a business agent at The New York
Post for the NMDU since 1995. DeMarzo testified that he
knew that DSA, a non-signatory wholesaler, was delivering
copies of the paper but he thought it was only within the five
boroughs. DeMarzo testified that he sought the status quo or
der from the impartial chairman when he heard that a truck was
leaving the plant with papers for Newsday on Long Island.
DeMarzo said that Newsday was not a signatory to a collective-
bargaining agreement and it was not a news company within
the agreement. Under the methods and extent language of Sec
tion 3-E it was a violation to use any wholesaler other than C &
S. DeMarzo claimed that he did not mention Section 11-A.1 to
the impartial chairman and that he did not try to enforce that
section of the contract. He denied that he raised the issue that
Newsday did not have a collective-bargaining agreement with
the NMDU.
J. Warren Mangan, Esq., represented the Union at the August
26, 1998 meeting with the impartial chairman. Mangan testi
fied that Azoff mentioned Section 11-A.1 in his statement to
the chairman but the Union denied that it was relying on that
section.
C. Positions of the Parties
The General Counsel alleges that the Respondent Union vio
lated Section 8(e) of the Act when it enforced Sections 3-E and
11-A.1 of the collective-bargaining agreement by means of the
impartial chairman’s status quo order.14 The General Counsel
also alleges that the Union violated Section 8(b)(4)(ii)(A) and
(B) by requiring the employer to give effect to an agreement
prohibited by Section 8(e) and by requiring the employer to
cease doing business with United Media. The General Counsel
argues that by enforcing Section 11-A.1 of the collective-
bargaining agreement the Respondent restricted the employer’s
ability to do business with a non-signatory company for a sec
ondary purpose to benefit union members outside the bargain
ing unit and not to preserve work traditionally performed by
bargaining unit members. The General Counsel argues that the
evidence shows that the unit members have not performed the
work at issue herein and the Union is therefore not recapturing
unit work. The General Counsel urges that the NMDU reaf
firmed its reliance on Section 11-A.1 of the contract when the
parties met with representatives of C & S in December 1998
and January 1999. After it became clear that C & S would not
deliver the additional copies of the paper the employer asked
the impartial chairman to lift the status quo order he had im
posed at the behest of the Union. The chairman refused to re
scind his order and he maintained his reliance on Section 11-
A.1 of the contract. The General Counsel, although maintain
ing that the facts show that the Union relied on Section 11-A.1
before the impartial chairman, urges that even if the Union
relied on Section 3-E that reliance was also unlawful.
The employer points out that the NMDU does not object in
principle to the use of third parties to deliver the paper. It only
objects when the third party does not have a collective-
bargaining agreement with the NMDU. The employer urges
that the Union’s actions in enforcing the contract by obtaining a
status quo order had one aim only, that of forcing the publisher
to use NMDU members to perform the new deliveries on Long
Island without regard to the actual employer of the Union
members. The employer concludes that this proves the secon
dary nature of the Union’s objectives. The employer empha
sizes that whichever clause of the contract the NMDU relies on
to achieve its objective, that clause has been given an unlawful
aim.
The Union begins its argument by citing various judicial de
cisions which have referred to the NMDU as the representative
of employees in the “industry.” The Union also refers to Sec
tion 4-A.3 of the collective-bargaining agreement which pro
vides for hiring of employees who have lost jobs with other
employers in the industry. The Union urges that the bargaining
unit encompasses the employees of all the publishers signatory
to a contract with the NMDU. The Union cites Section 3-E of
the collective-bargaining agreement and the clarification of
method and extent side letter and urges that these provisions
govern combined delivery and prohibit further subcontracting
14 The Complaint as originally issued alleged a violation only with
respect to Sec. 11-A.1 of the contract. During the hearing, the General
Counsel amended the Complaint to allege unlawful enforcement of Sec.
3-E.
616
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of unit work. The Union urges that the status quo order was
sought only for the purpose of work preservation under Na
tional Woodwork Manuf. Assoc. v. NLRB, 386 U.S. 612 (1967).
The NMDU argues that Section 11-A.1 is designed to protect
the wages and job opportunities of all unit employees within
the industry and is therefore a facially valid work preservation
clause. The Union did not seek to prevent the publisher from
doing business with DSA; it only sought to limit an increase in
the number of papers delivered by DSA. The Union brief
states: “There is no credible evidence that the Respondent ever
sought to enforce Section 11-A.1 against NYP or any other
industry employer.”15
D. Discussion and Conclusions
I find, based on Section 2 of the 1993 collective-bargaining
agreement between the parties, that the NMDU represents a
unit of employees of NYP Holdings, Inc., who perform the
various duties listed in that Section of the contract. The agree
ment does not recognize an industry-wide unit.16
I find, based on the testimony of Amann and Steo, that a cer
tain portion of the indirect delivery in Nassau and Suffolk
Counties has historically been performed by wholesalers who
do not have a contract with the NMDU. C & S delivers about
37,500 papers and D.S.A. (also called United Media or Media
Masters), delivers about 4100 papers per day. I find, based on
the testimony of Amann and Steo, that the Union has been
aware of these deliveries being made by non-signatory compa
nies. Indeed, the impartial chairman in his award dealing with
routes N1 and N2 repeatedly mentioned that there is alternate
delivery by “bootleggers” both inside and outside of New York
City and he noted that the parties acknowledged this fact.17
I find, based on the testimony of Amann, Steo, Michele, and
Strimbu, that the purpose of the Circulation Growth Committee
and the Circulation Growth Program was to return as much
delivery as possible to direct routes in the five boroughs of New
York City. I do not find that the Committee was charged with
any task relating to Long Island deliveries. Thus, I do not find
that the history of the Circulation Growth Committee and Pro-
gram shows that the NMDU has historically claimed all or a
significant portion of the work on Long Island on behalf of
employees in the bargaining unit covered by the 1993 collec
tive-bargaining agreement. Although the Union has in the past
stated that, under ideal conditions, it would prefer all suburban
deliveries to be direct deliveries, the 1993 negotiations con
vinced the Union that direct delivery outside the five boroughs
was not economically feasible.
The evidence shows that the publisher wished to expand its
market in Nassau and Suffolk Counties and that it planned to
15 I have also considered the various arguments advanced by the Un
ion in its brief but not discussed herein and I find them to be without
merit.
16 Patterson v. NMDU, 384 F.Supp. 585 (S.D.N.Y. 1974), cited by
the Union, discussed a different bargaining unit based on a prior and
different contract.
17 I do not credit the testimony of Cotter, DeMarzo, and Lee that the
Union was unaware of alternate delivery outside the five boroughs of
New York City until the August 1998 controversy over the additional
papers for United Media.
use United Media to deliver papers to small dealers who had
not previously carried The New York Post. The NMDU did not
seriously insist that the publisher set up direct delivery routes
for these small dealers. I find, based on the testimony of Steo,
Michele, and Azoff, that the Union instead tried to require the
publisher to use a wholesaler whose employees were repre
sented by the NMDU. Indeed, Cotter, DeMarzo, and Lee testi
fied that the use of a nonunion wholesaler instead of a signatory
wholesaler to deliver papers on Long Island violated the con-
tract.
The record shows that C & S was unwilling to handle the ex
tra papers because they would be delivered to small dealers
with whom C & S would not do business.
I find that DeMarzo sought the status quo order from the im
partial chairman because a non-NMDU signatory wholesaler
was going to receive additional papers to deliver on Long Is-
land. I find, based on the testimony of Azoff and Strimbu, that
the Union cited Section 11-A.1 of the collective-bargaining
agreement to the impartial chairman when it sought the order
preventing the delivery of additional copies to United Media.18
The Union also cited Section 3-E of the contract. The Union
did not seek to enforce the contract so that members of the unit
covered by the collective-bargaining contract could do the
work. The object of the grievance was to prevent the papers
from being delivered by a wholesaler who did not employ
members of the NMDU. DeMarzo, who brought the grievance,
testified that it was a violation of the contract to use any whole
saler except C & S. Both Cotter and Lee stated that C & S
could be used to deliver additional papers but not Media Mas
ters because Media Masters did not have a collective-
bargaining agreement with the NMDU.
Indeed, the written confirmation of his status quo order is-
sued by the impartial chairman makes the Union’s object per
fectly clear. The chairman wrote that Media Masters, “a non-
Union wholesaler,” has been delivering copies of the paper and
that United Media, the successor to Media Masters, was going
to be given an additional 2500 copies to be delivered by drivers
“represented by another union.” Based on his “reading of the
Agreement,” the chairman ordered the publisher to refrain from
delivering the increased number of copies to United Media.
Then, the chairman confirmed the intention of the parties to
meet with C & S to reach “an acceptable resolution.” There
was no reason for the impartial chairman to recite facts in his
succinctly written document unless the parties had urged those
facts before him so as to induce his subsequent action. If the
Union had not objected to the non-signatory status of United
Media there would have been no reason for the chairman to rely
on it in issuing his order. I note that the chairman did not rely
on any change in the method and extent of delivery in issuing
his order, nor did he mention subcontracting. He only men
tioned and relied on the nonunion status of United Media. Fur
ther, although the chairman mentioned that for some time Me-
18 I do not credit the denials by the Union witnesses that they relied
on Sec. 11-A.1 in their arguments to the impartial chairman. The evi
dence shows that the Union sought to retain Sec. 11-A.1 in the 1993
contract, yet the Union witnesses disclaimed any knowledge of this
section and purported not to know its meaning and effect.
NEWSPAPERS & MAIL DELIVERERS (NEW YORK POST )
617
dia Masters had been delivering the paper, he did not rely on
the purported fact that it had only delivered within the five
boroughs but was now expanding to Long Island. Thus, the
impartial chairman’s written order supports the General Coun
sel’s witnesses in the instant case and casts grave doubt on the
Union’s testimonial evidence in this proceeding.
I find based on the testimony of Michele, Azoff, and Amann
that the Union maintained and reaffirmed its reliance on Sec
tion 11-A.1 of the collective-bargaining agreement in January
1999 when the parties met on a second occasion with the im
partial chairman and representatives of C & S in an effort to
have NMDU members deliver additional papers on Long Is-
land. The Union was thus continuing its enforcement of Sec
tion 11-A.1 of the contract by continuing to insist that only its
members could deliver the papers. The Union did not seek
direct delivery during the meetings with the impartial chairman.
After it became clear that C & S would not do the work in
question, the employer sought unsuccessfully to have the
chairman’s order lifted.
At a Joint Conference Committee
meeting the chairman reaffirmed his intention to base his ruling
on the language of Section 11-A.1 without deciding whether it
violated the Act. The chairman informed the employer’s coun
sel that he would enforce Section 11-A.1 with respect to the
facts at issue.
It requires no extended discussion to state that the Act pro
hibits secondary activity aimed at the labor relations of a non-
contracting employer but permits the making and enforcement
of agreements designed to preserve work traditionally per-
formed by the contracting employer’s employees. The Su
preme Court has ruled that there must be “an inquiry into
whether, under all the surrounding circumstances, the Union’s
objective was preservation of work for [the primary em
ployer’s] employees.”
National Woodwork Mfrs. Assn. v.
N.L.R.B., 386 U.S. 612, 644–46 (1967). This inquiry must have
reference to “the contractual recognition clause and the history
of the parties’ conduct under it.” NMDU (Hudson County
News Co.), 298 NLRB 564, 566 (1990).
The contractual recognition clause herein includes employ
ees who could perform the delivery of the additional papers in
Long Island if it were done by the employer’s employees.
Similarly, the territorial coverage of the contract includes Long
Island. Therefore, the examination must shift to the history of
the parties’ conduct. The credible evidence herein shows that
for a lengthy period of time both C & S and United Media (or
Media Masters) have delivered copies of the paper to Long
Island. The credible evidence shows that the Union was aware
of deliveries by United Media. Although for a time the unit
members performed direct delivery on routes N1 And N2, these
were regarded as new routes and consisted of only a small por
tion of all of the papers delivered in Long Island. The January
1998 decision of the impartial chairman found that there was no
lengthy history of direct delivery and that the Union had no
right under the contract to insist that the publisher’s own em
ployees must deliver any routes in Nassau County. Thus, there
is a binding interpretation of the collective-bargaining agree
ment that the Union has no right to demand that the employer
use its own employees to deliver papers on Long Island.
When the Union sought the status quo order from the impar
tial chairman in August 1998, it wished to prevent an increase
in the number of papers being delivered by a non-signatory
wholesaler. During the meetings among the Union, the em
ployer, the impartial chairman, and representatives of C & S the
Union did not seek to have the work performed by the unit
employees. The objective of the NMDU was either to gain the
work for its members who worked for C & S or, in the alterna
tive, to prevent the non-member employees of United Media
from doing the work.
Even without the contract interpretation by the impartial
chairman that the Union had no right to require direct delivery
of papers on Long Island, the record shows that this work was
not fairly claimable by the Union.
The Board discussed
whether certain work was fairly claimable in Local 282 (D.
Fortunato, Inc.), 197 NLRB 673, 677 (1972), where it said,
“[A]greements and conduct intended to protect, preserve, ac
quire, or reclaim work for union members generally (i.e., out-
side the immediate bargaining unit) violate both section 8(e)
and 8(b)(4)(B) of the Act on the theory that they exceed the
legitimate interests of the unit employees vis-à-vis their own
employer and are therefore tactically calculated to satisfy union
objectives elsewhere.” The Board found that a substantial por
tion of the work at issue in that case had not been performed by
the employees in the bargaining unit. The Board concluded
that the unlawful clause was intended to benefit all union mem
bers within the geographic area of the union’s jurisdiction.
Similarly, in the instant case, the record demonstrates that em
ployees of the paper have not performed a substantial portion of
the deliveries on Long Island and that the NMDU is seeking to
benefit its members who work for another employer in the geo
graphic area by obtaining the new work for C & S. Moreover,
in the instant case it cannot be said that the union is seeking to
recapture for the unit employees work which they had per-
formed until recent technological changes or changes in meth
ods of distribution as in Meat and Highway Drivers v. NLRB,
335 F.2d 709, 714 (D.C. Cir. 1964).
I find that Section 11-A.1 of the collective-bargaining
agreement requires that the employer use only wholesalers who
are signatory to a contract with the NMDU. This clause seeks
to regulate the labor policies of entities over which the em
ployer exercises no right of control and it has an unlawful sec
ondary objective which violates Section 8(e) of the Act. Iron
Workers (Southwestern Materials), 328 NLRB 934 (1999). As
discussed above, when it relied on Section 11-A.1 the Union
was not seeking to preserve, recapture, or acquire work tradi
tionally performed by unit members.
As set forth in detail above, the Union enforced Section 11-
A.1 of the contract in January 1999, when the parties met with
representatives of C & S and again when the parties met with
the impartial chairman in a Joint Conference Committee meet
ing and the chairman refused to lift the status quo order he had
issued at the behest of the Union. When the Union gave effect
to and enforced Section 11-A.1 of the collective-bargaining
agreement it violated Section 8(e) the Act. Retail Clerks Un
ion, 138 NLRB 244, 247 (1962).
Based on the discussion above, I find that the Union used the
grievance procedure and obtained the status quo order of the
618
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
impartial chairman in order to coerce the employer into enter
ing into an agreement prohibited by Section 8(e) of the Act.
The Respondent thus violated Section 8(b)(4)(ii)(A) of the Act.
I also find that the Respondent used the grievance procedure
and obtained the status quo order of the impartial chairman in
order to force and require the employer to cease doing business
with United Media or its successor D.S.A. The Union sought
to disrupt the employer’s business dealings with United Media
because the latter does not have a contract with or employ
members of the NMDU. The Respondent thus violated Section
8(b)(4)(ii)(B) of the Act. Local 32B-32J (Nevins Realty), 313
NLRB 392 (1993).
I find it unnecessary to consider whether the Respondent also
unlawfully enforced Section 3-E of the collective-bargaining
agreement because I have already found that the enforcement of
Section 11-A.1 was unlawful.
CONCLUSIONS OF LAW
1. By entering into Section 11-A.1 of the collective-
bargaining agreement and by giving effect to Section 11-A.1
and enforcing Section 11-A.1 the Union violated Section 8(e)
of the Act.
2. By resorting to arbitration against NYP Holdings, Inc.
where an object thereof is to force or require Holdings to enter
into an agreement prohibited by Section 8(e) of the Act, Re
spondent has threatened, coerced and restrained Holdings in
violation of Section 8(b)(4)(ii)(A) of the Act.
3. By resorting to arbitration against NYP Holdings, Inc.
where an object thereof is to force or require Holdings to cease
doing business with United Media or its successor D.S.A., Re
spondent has threatened, coerced, and restrained Holdings in
violation of Section 8(b)(4)(ii)(B) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu
ate the policies of the Act.
Having concluded that Section 11-A.1 of the collective-
bargaining agreement is unlawful, the Respondent must cease
and desist from enforcing it. The Respondent must therefore
withdraw its grievance relating to the newspapers to be deliv
ered by United Media or its successor D.S.A., and it must so
notify the impartial chairman and it must request that the
impartial chairman lift the status quo order issued in August
1998.
ORDER
The Respondent, Newspaper and Mail Deliverers’ Union of
New York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Entering into, giving effect to, or enforcing Section 11-
A.1 of its collective-bargaining agreement with NYP Holdings,
Inc.
(b) Seeking to enforce or apply Section 11-A.1 of the collec
tive-bargaining agreement through the grievance and arbitration
procedure.
2. Take the following affirmative action necessary to effec
tuate the policies of the Act.
(a) Withdraw the grievance relating to the newspapers to be
delivered by United Media or its successor D.S.A.
(b) Request that the impartial chairman lift the status quo or
der issued in August 1998.
(c) Within 14 days after service by the Region, post at its un
ion office copies of the attached notice marked “Appendix.”20
Copies of the notice, on forms provided by the Regional Direc
tor for Region 2, after being signed by the Respondent’s author
ized representative, shall be posted by the Respondent immedi
ately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to mem
bers are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Sign and return to the Regional Director sufficient copies
of the notice for posting by NYP Holdings, Inc., if willing, at
all places where notices to employees are customarily posted.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na
tional Labor Relations Board” shall read “Posted Pursuant to a Judg
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”