Newspaper and Mail Deliverers' Union (New York Post)

NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 245 Newspaper and Mail Deliverers’ Union of New York and Vicinity (NYP Holdings, Inc., d/b/a New York Post) and Stefani Cotler and Terance Bright and Marc Sussman and Reyson Pimentel and Jesus Mejia and Cesar Ceballos and John Smith and Patrick Forte and Shiwu Peng and NYP Holdings, Inc., d/b/a New York Post Newspaper and Mail Deliverers’ Union of New York and Vicinity (City & Suburban Delivery Sys- tems, Inc.) and Enrique Grados and Djevalin Gojani and Christopher Fabiani and Richard Atkins and Raimond Moran and John Cassaro and Patrick Rizzotti and City & Suburban De- livery Systems, Inc. and The New York Times Company Newspaper and Mail Deliverers’ Union of New York and Vicinity (Various Employers) and Daniel Altieri. Cases 02–CB–021740, , 02–CB–022366, 02–CB–021749, 02–CB–021762, 02–CB–021826, 02–CB–021827, 02–CB–021828, 02–CB–021829, 02–CB–021842, 02–CB–021845, 02–CB–021899, 02–CB–021905, 02–CB–021931, 02–CB–021941, 02–CB–021946, 02–CB–022015, 02–CB–022051, and 02–CB–022701 August 21, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND SCHIFFER On February 8, 2012, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent Union and the General Counsel each filed exceptions and a supporting brief and an answering brief, and the General Counsel also 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, and conclusions as modified below and to adopt the recommended Order as modified and set forth in full below.1 1 We find merit in certain of the General Counsel’s exceptions to the judge’s recommended conclusions of law, remedy, and Order and shall amend and modify them accordingly. We shall also modify the judge’s recommended Order to conform to the Board’s standard re- medial language and to require the Respondent to compensate em- ployees entitled to a make-whole remedy for any adverse income tax consequences of receiving their backpay in one lump sum. We shall issue a new notice to conform to the Order as modified, and in ac- cordance with our decision in Durham School Services, 360 NLRB 694 (2014). In his decision, the judge found that Newspaper and Mail Deliverers’ Union of New York and Vicinity (the NMDU, the Union, or the Respondent) violated the Act by (a) maintaining various contract provisions and a side letter to its contract with the New York Post (Post); (b) taking certain actions that affected Post employees and were related to the closing of City & Suburban De- livery Systems (C&S), which also had a contract with the NMDU and was a wholly owned subsidiary of the New York Times (Times); (c) entering into and imple- menting a side letter with the Times containing certain provisions related to the C&S closing; and (d) entering into and implementing an agreement providing the manner of selecting former C&S employees for buyouts and transfers to the Times. The judge found that, through these agreements and their implementation, the NMDU gave preferential treatment to employees who were union members and/or worked for union-signatory employers over employees who were not or did not. He further found that the Union violated the Act by failing to give the Post’s unit employees appropriate notice of their rights under NLRB v. General Motors, 373 U.S. 734 (1963), and Communications Workers v. Beck, 487 U.S. 735 (1988), and by threatening to bar a former C&S employee from employment due to an alleged dues arrearage. We agree with the judge’s unfair labor practice findings for the reasons he states, and as further elaborated in this decision. Finally, the General Coun- sel excepts to the judge’s failure to find that the Union also violated the Act by failing to give C&S unit em- ployees appropriate notice of their General Motors and Beck rights. As explained below, we find merit in the General Counsel’s exception. I. THE PRIMARY ISSUE The key issue is whether the Union violated Section 8(b)(1)(A) and (2) of the Act by entering into and en- forcing agreements that gave preferences (in hiring, transfers, and buyouts) to one group of employees over another, based on the preferred group’s membership in the Union and/or their employment with an employer that had a collective-bargaining relationship with the Union. The judge concluded, and we agree, that the Union’s use of industry-wide priority numbers (dis- cussed below), and the fact that almost all employees became union members when they received these prior- ity numbers, created a union-based preference that fa- vored employees who had worked for union-signatory employers and/or were union members over employees There are no exceptions to the judge’s finding that the Respondent Union did not violate Sec. 8(b)(1)(A) of the Act by requiring Group 3 and 4 extras (explained below) to pay an agency fee. 361 NLRB No. 26 246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD who had not worked for union-signatory employers and/or were not union members. We agree with the judge that such union-based preferences are unlawful because they favor, in hiring and promotion, those who are union members and/or are or have been employed by union-signatory employers, and they caused em- ployers to discriminate against employees based on un- ion membership and/or union-wide rather than unit- wide seniority. A. Background The judge has fully set out the facts, so we recite only the key ones. For many years, the Union represented the employees of publishers and wholesalers that, in turn, were represented in collective bargaining by two multiemployer associations—the Publishers’ Associa- tion of New York City and the Suburban Wholesalers’ Association. The former bargained collectively on be- half of its employer members with respect to their de- livery department employees; the latter represented a group of wholesale delivery companies. During this period, the Union dealt with the publishers and whole- salers in a multiemployer bargaining context, and the employees it represented were included in multiem- ployer bargaining units. In about 1953, the Union and the employers with whom it had contracts (union-signatory employers) agreed to a hierarchical structure for hiring extra em- ployees. Each union-signatory employer would have a group of steady employees called “regular situation holders” or “RSHs,” plus a roster of extra employees to draw from to perform any remaining work that day. After the RSHs received their assignments, the extras would bid for the remaining work according to their placement in one of four groups and their seniority within that group. The groups were arranged in de- scending order of priority. Group 1 consisted of former RSHs in the “industry,” i.e., anyone who had been em- ployed as an RSH by any employer within the Greater New York Metropolitan area that had a collective- bargaining agreement with the Union.2 After 1974, Group 1 also included former Group 3 extras who had been promoted to Group 1.3 When an individual gained 2 We agree with the judge that the term “industry,” as used by the parties here, includes only employers that have contracts with the Un- ion and utilize delivery employees within the Greater New York Met- ropolitan area. While there are non-signatory employers within that geographic area who use delivery employees, they are not part of the “industry” as that term is used here. 3 This change resulted from the decision in Patterson v. NMDU et al., 384 F.Supp. 585 (S.D.N.Y. 1974), affd. 514 F.2d 767 (2d Cir. 1975), in which the court approved a settlement of consolidated cases that claimed racial and ethnic discrimination in hiring. Under the court approved settlement, the restriction of Group 1 to former RSHs access to Group 1 (or became an RSH), the Union as- signed him an industry-wide priority number that de- termined his seniority among the employees of all un- ion-signatory employers (the lower the number, the greater the seniority). Group 2 consisted of individuals who were currently employed by any union-signatory employer within the Union’s jurisdiction as an RSH or Group 1 extra. While union-signatory employers maintained their own RSH, Group 1, and Group 3 and 4 lists, in which sen- iority was determined by the length of time on that list within the employer’s own workforce, the Union main- tained the Group 2 list, in which seniority was deter- mined by length of time as an RSH or Group 1 extra working for any union-signatory employer. Group 3 included individuals who regularly shaped for and obtained regular work at a particular employer over a period of time. Group 3 extras were not eligible to become union members, but their wages and condi- tions of employment were set by the contract that the Union had with their employer. Group 3 extras were required to pay agency fees to the Union. Group 4 extras were true casual employees, and indi- viduals on this list were given work as a last resort. Like Group 3 extras, they could not become union members, but their wages and conditions of employ- ment were set by the union contract of the employer with whom they sought work, and they were required to pay the Union an agency fee as a condition of employ- ment. As noted above, when the Union and the union- signatory employers first established the Group struc- ture to assign extra work, it was in a setting of mul- tiemployer bargaining and multiemployer bargaining units. In such a context, the use of union-based seniori- ty to establish employment preferences was not unlaw- ful. The multiemployer bargaining unit being union- wide, union and unit seniority were coextensive, so there could be no discrimination based on union sen- iority rather than unit seniority. Further, the establish- ment and maintenance of the hierarchical roster of Group extras advanced the legitimate interests of both employers and the Union. Employers were assured a steady source of extra workers, and the Union secured was eliminated, and provision was made for the promotion of Group 3 extras to the bottom of the Group 1 list and for union membership to be offered the former Group 3 extras at that time. Id. at 590. The Union asserts that the Board should defer to that settlement, which allowed the Union and the signatory employers to retain, with slight modification, the Group extras system. We agree with the judge that deferral would not be appropriate because the Board was not a party to the settlement, and the racial and ethnic discrimination alleged there is different from the type of discrimination alleged here. NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 247 employment for its members and a means to add to its membership ranks as employees were promoted from Group 3 to Group 1. Over time, publishers withdrew from the Publishers’ Association and then bargained individually with the Union, which represented those employers’ employees in separate bargaining units. The Post did this in 1975. Then, in 1984, the Publishers’ Association ceased to function as the bargaining agent for its employer mem- bers, and those employers, including the Times, then negotiated contracts covering their own employees in separate bargaining units. Also, before the events at is- sue here, the Suburban Wholesalers’ Association had ceased to exist. (In any event, as the judge observed, C&S was never a member of any multiemployer asso- ciation.) This altered landscape of individual employer bargaining and separate bargaining units leads to the major issues in this case. B. The New York Post Cases The Post employs a number of permanent RSHs, but it supplements its workforce by hiring extras who shape on a daily basis to perform the work left over after the RSHs receive their assignments. Paragraph 4-A.4.(a) and (b) of the Post-NMDU contract provides for the four groups of extras described above. The contract al- so contains a union-security clause requiring Post em- ployees working as RSHs or Group 1 extras to become union members no later than 30 days after they attain such status and to retain union membership as a condi- tion of employment.4 Group 3 and 4 extras, although not eligible for membership, are required to pay an agency fee as a condition of employment, and their terms and conditions of employment are governed by the contract.5 The Post-NMDU contract includes two provisions that permit employees of other signatory employers to transfer to the Post under certain circumstances. Sec- 4 The General Counsel asks us to find that all collective-bargaining agreements of union-signatory employers not introduced at the hear- ing contained similar union-security clauses, and thus that RSHs and Group 1 extras employed by union-signatory employers worked un- der union-security clauses at their respective employers. Because the Union failed to produce the subpoenaed collective-bargaining agree- ments, we so find by adverse inference. See ADF, Inc., 355 NLRB 81, 84–85 (2010), reaffirmed by and incorporated by reference in 355 NLRB 351 (2010). 5 The General Counsel excepts to the judge’s finding that, for pur- poses of this case, the Group 4 provision of the Post contract (dis- cussed below) is not relevant as there is no contention that anyone in Group 4 was discriminated against. We agree with the judge that the Union violated the Act by discriminating against nonmember unit employees. Since nonmember unit employees are included in both Group 3 and Group 4, we shall leave to compliance the determination of whether specific individuals in Group 4 are entitled to a remedy. tion 4-A.4.(j) provides that an RSH has the right to ap- ply for a Group 1 listing with a signatory employer if the RSH has held that position continuously for 5 years prior to making application. And an October 2003 side letter provides that, if one of several designated signato- ry employers (including C&S) ceases operations, the Post will add to its own Group 1 list a certain number of that employer’s RSHs and Group 1 extras. By early 2008, there was a distinct possibility that C&S would go out of business in the near future. Also in 2008, the Post needed to fill vacancies on its Group 1 list. In July 2008, Kenneth Chiarella, the Post’s director of distribution, wrote the Union as fol- lows: We have a substantial number of openings on the One List. The contract provides that the One List will be maintained at ten percent for [sic] the RSH List. I would request a meeting of the Adjustment Board to elevate employees from the Three List to fill the vacan- cies and bring the Company into compliance with the contract. If the Union continues to refuse to meet to el- evate employees because of a citywide freeze on issu- ing new Union cards, please confirm that fact. Union Business Agent Glenn LaChance responded the fol- lowing day that there was an industry-wide “Freeze” on all Group 1 lists, not just the Post’s, and that, due to the “eco- nomic uncertainty throughout our industry, we, the Union, see no need to fill these vacancies on the One List throughout the industry at this time.” C&S went out of business on January 4, 2009. As permitted under Section 4-A.4.(j) of the contract and pursuant to the October 2003 side letter, the Post agreed to employ a number of people who had lost their jobs at C&S. As described below, that January 2009 agree- ment was made effective through certain “Orders” of the Post/NMDU Adjustment Board in the months fol- lowing the C&S closure.6 As amended at the hearing, the Post complaint alleg- es that, by maintaining and applying Sections 4-A.4.(a) and (b) and Section 4-A.4.(j) of the Post-NMDU con- tract, and the October 2003 side letter, the NMDU vio- lated Section 8(b)(1)(A) and (2) of the Act by causing and attempting to cause the Post to discriminate against certain unit employees by giving a hiring preference to nonunit individuals (i.e., former C&S employees hired by the Post) based on their membership in the NMDU 6 Sec. 15-E of the Post-NMDU contract created an “Adjustment Board,” comprised of two employer representatives and two union representatives, “which shall have exclusive jurisdiction over any is- sue arising with regard to the provisions of Section 4-A of this Agreement.” Majority decisions of the Adjustment Board were bind- ing on the parties. 248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and/or their employment with an employer that has or had a collective-bargaining relationship with the NMDU. The complaint further alleges that the NMDU violated Section 8(b)(1)(A) and (2) by refusing the Post’s July 2008 request to elevate employees from the Post’s Group 3 list to fill vacancies on the Group 1 list because the NMDU wanted to preserve work opportu- nities for nonunit members employed by other signato- ry employers (i.e., employees of the soon-to-close C&S). Finally, the complaint alleges that the NMDU violated Section 8(b)(1)(A) by failing to give the Post’s unit employees appropriate notice of their General Mo- tors and Beck rights. C. The C&S/New York Times Cases The Times created C&S through the purchase of four wholesale newspaper distributors whose employees the NMDU had represented in separate bargaining units. The hiring/seniority provisions of the C&S-NMDU contract (i.e., the RSH, Group 1, Group 2, Group 3, and Group 4 provisions) were virtually the same as in the Post-NMDU agreement. The C&S contract, however, also provided that RSHs’ seniority was determined by their “made-steady date,” i.e., the date that an employee became an RSH with C&S or with one of its four pre- decessors. Shortly before C&S went out of business, the Times and the Union entered into a closing agreement in No- vember 2008 (the Closing Agreement), by which the Times agreed to hire 65 C&S RSHs and place them at the bottom of the Times’ RSH seniority list, and to pay a $100,000 buyout to each of 140 C&S RSHs who opt- ed to leave the industry. The Closing Agreement pro- vided that the C&S RSHs would choose between these options (transfer to the Times or $100,000 buyout) in order of seniority. Although the parties had previously used C&S unit seniority to decide employee placement issues, they agreed in a side letter to use union seniority as reflected in industry-wide priority numbers. After C&S closed, and consistent with the side letter, the Union revised the C&S seniority list based on in- dustry-wide priority numbers. On that basis, the former C&S employees made their elections. The Times be- gan to distribute $100,000 checks to certain former C&S employees,7 and it hired other former C&S em- ployees and placed them at the bottom of the Times’ seniority list. Within the ranks of the newly hired em- ployees, seniority was determined based on industry- wide priority numbers. 7 It did not award the last six buyouts because there was a dispute regarding which former C&S employees were entitled to them, but it set aside $600,000 for that purpose. The C&S complaint alleges that, by requiring the use of industry-wide priority numbers rather than unit sen- iority in the closing agreement, the NMDU violated Section 8(b)(1)(A) and (2) by causing and attempting to cause C&S to discriminate against certain C&S unit employees by giving an employment preference to oth- er C&S unit employees based on their membership in the NMDU and/or their prior employment with an NMDU-signatory employer.8 The complaint also al- leges that, by requiring former C&S employees to be endtailed (placed at the bottom of the Times’ seniority list) based on industry-wide priority numbers, the NMDU violated Section 8(b)(1)(A) and (2). The com- plaint further alleges that the NMDU violated Section 8(b)(1)(A) by failing to give the C&S unit employees appropriate notice of their General Motors and Beck rights, and by threatening to interfere with a former C&S employee’s employment with any employer with whom it has a collective-bargaining relationship if the employee did not pay a purported arrearage in union dues. D. Discussion We agree with the judge that “the basic rule of law” applicable here is that discrimination in hiring and pro- motion based solely on union considerations (i.e., union membership and/or prior employment with union- signatory employers) is unlawful. Such discrimination violates the Act because it favors those who are union members and/or are or have been employed by union- signatory employers, and disfavors individuals who have exercised their Section 7 right to refrain from un- ion activity. Applying that basic rule here, we adopt the judge’s findings that the NMDU violated Section 8(b)(1)(A) and (2) of the Act by causing and attempting to cause the Post, C&S, and the Times to give employ- ment preferences to NMDU-represented employees based on union membership and/or industry-wide prior- ity numbers. This is the form of discrimination that the judge found unlawful in the Post cases, based on (1) the daily award of hiring preferences to Group 2 employees (RSHs and Group 1 extras of other signatory employ- ers), as required under Sections 4-A.4.(a) and (b) of the Post-NMDU contract; and (2) the award of hiring pref- 8 The complaint also alleges, as an alternative theory, that, if the Board finds the Union’s use of industry-wide priority numbers was not unlawful, the Union violated its duty of fair representation to cer- tain employees by refusing to correct their industry-wide priority numbers to conform to their made steady dates because they were not union members. Since we find that the seniority system based on the use of industry-wide priority numbers is unlawful, we need not ad- dress this alternative theory. NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 249 erences to former C&S RSHs after C&S closed, as re- quired under Section 4-A.4.(j) of the contract and the October 2003 side letter.9 In each context, when they sought employment at the Post, RSHs and/or Group 1 extras were awarded a hiring preference based on their union membership and/or their RSH or Group 1 status at other union-signatory employers and in different bar- gaining units. By virtue of this preference, they had priority in hiring over the Post’s own Group 3 and 4 ex- tras who had greater unit seniority, but were disfavored because they were unrepresented and/or had less overall NMDU seniority. In each case, the Union thereby caused or attempted to cause the Post to discriminate against its own employees by giving preference in hir- ing based on union membership and/or union-wide ra- ther than unit-wide seniority. Finally, we also agree with the judge, for the reasons stated by him, that the Union violated Section 8(b)(1)(A) and (2) by prevent- ing the promotion of employees from Group 3 to Group 1 as of July 10, 2008.10 As the judge recognized, the analysis in the C&S/Times cases is essentially the same. Although the C&S RSHs were all in the same bargaining unit when 9 The General Counsel excepts to the judge’s failure (1) to refer to these specific contract provisions and the October 2003 side letter in finding that the Union unlawfully maintained certain contract provi- sions; (2) to find, as alleged in the complaint, that the Union’s appli- cation of Sec. 4-A.4 at all times since April 10, 2008, the com- mencement of the 10(b) period, was also unlawful; and (3) to find that the Union unlawfully applied the January 2009 agreement through Adjustment Board orders of February 18 and August 5, 2009, and January 28 and August 17, 2010, which gave preference in hiring at the Post to former C&S employees over the Post’s own Group 3 and 4 employees. We find merit in these exceptions and shall amend the judge’s conclusions of law and modify his recommended Order accordingly. In this regard, we note that, at the hearing, the judge ac- cepted the General Counsel’s motion to amend the complaint to al- lege that the Adjustment Board orders of August 5, 2009, and January 28 and August 17, 2010, were unlawful. We also correct certain fac- tual errors by the judge and find that, by the Adjustment Board order of February 18, 2009, 75 former C&S employees, not (as the judge found) 50 former C&S employees and 25 Group 3 employees of the Post, were promoted to the Post’s Group 1 list, and that two Adjust- ment Board orders issued on August 5, 2009, not one on August 5 and a second on August 7. Finally, for purposes of compliance, we find merit in the General Counsel’s exception to the judge’s failure to find that, by an Adjustment Board order of April 26, 2006, the Post’s Group 1 list had to be maintained at 24 employees at that time. 10 The General Counsel excepts to the judge’s failure to find that the “freeze” on promotions to Group 1 began in April 2008, based on Chiarella’s testimony that, approximately 3 months prior to July 10, certain union officials stated that the Union was not willing to con- vene an Adjustment Board because of “uncertainty in the industry.” Chiarella also testified, however, that he had only heard “rumors” of a freeze at that time. Thus, Chiarella’s testimony does not establish that prior to July 10, the Union announced or applied the “freeze” that we find unlawful here. Thus, we find the General Counsel’s excep- tion without merit. C&S closed, the buyout and transfer preferences and the treatment of former C&S RSHs were still based on industry-wide priority numbers. Consequently, certain C&S employees received a preference in buyouts, transfers, and, once transferred, seniority within the Times bargaining unit over other C&S employees based on union membership and/or union-wide rather than unit-wide seniority.11 In sum, individuals could only be promoted to RSH or Group 1 status while working for a union-signatory employer, and the union-signatory contracts contained a union-security clause requiring RSHs and Group 1 ex- tras to become union members. Therefore, the Union’s maintenance and application of its industry-wide priori- ty number system, operating in tandem with union- security requirements, unlawfully favored individuals who were union members and/or had greater length of employment with union-signatory employers as RSHs or Group 1 extras; and this arrangement disfavored in- dividuals who were not union members and/or had not worked for union-signatory employers. By maintaining and applying these preferences for union members while disfavoring nonmembers, the Respondent caused the Post and the Times to discriminate against employ- ees because of their prior lack of representation by a un- ion.12 Finally, we agree with the judge that Teamsters Local Union 896 (Anheuser-Busch), 296 NLRB 1025 (1989), where the Board dismissed the Section 8(b)(1)(A) and (2) allegations, is distinguishable.13 The employment preferences granted in Anheuser-Busch appear in part to have been skill based, and therefore the alleged dis- crimination might have been justified by legitimate 11 Thus, certain C&S employees (i.e., those who had become RSHs while working for other union-signatory employers in other bargain- ing units and had therefore received their industry-wide priority num- bers prior to employment with C&S) would have greater union-wide seniority but less unit-wide seniority than employees who began working for C&S before they did, but were promoted to RSH status after them. In this regard, the General Counsel excepts to the judge’s failure to find that employees Enrique Grados, Richard Atkins, and Djevalin Gojani were promoted to RSH status on May 4, 1998. We find merit in this exception as the record establishes that their recog- nized made-steady date is May 4, 1998, the date they were elevated to RSH status. 12 See, e.g., Whiting Milk Corp., 145 NLRB 1035, 1037, 1043 (1964), enf. denied 342 F.2d 8 (1st Cir. 1965). 13 The issue presented in Anheuser-Busch was whether the re- spondent union violated the Act “by invoking a provision of the ap- plicable collective-bargaining agreement giving permanent employ- ees laid off by other employers who have contracts with the [r]espondent a preferential seniority right to work for the [e]mployer instead of temporary employees whose job seniority with the [e]mployer would otherwise have entitled them to work.” Id. at 1025. 250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD considerations.14 There is no evidence that the present case involved skill based differences in treatment. Fur- ther, the bumping preferences in Anheuser-Busch ap- peared to be a contractual vestige of a multiemployer bargaining relationship, and such a “vestige” does not exist here.15 Lastly, the contractual provisions at issue in Anheuser-Busch were ambiguous and there was no evidence of actual discrimination; by comparison, the contractual terms at issue here are unlawful on their face, and there is no question that union-based discrim- ination occurred. For all these reasons, we adopt the judge’s findings that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act as alleged in the consolidated com- plaints.16 14 See Anheuser-Busch, 296 NLRB at 1029 fn.12 and accompany- ing text. 15 The Union excepts to the judge’s findings that both the Publish- ers’ Association and the Wholesalers’ Association were defunct and points out that they still administered certain pension and welfare funds. Relying on this, the Respondent contends that the hir- ing/seniority provisions of its contract with the Post constitute a “ves- tige” of the multiemployer bargaining arrangement and therefore are not unlawful. We find this exception without merit. As the judge explained, there is “no basis for any claim that a seniority system based on employment at other NMDU employers was a justifiable vestige from a previous multi-employer contract.” 16 In reaching our conclusion, we acknowledge that, in Newspaper & Mail Deliverers (City & Suburban Delivery), 332 NLRB 870, 870 fn. 2 (2000), the Board noted without comment the Union’s use of industry-wide priority numbers to establish seniority for bargaining unit employees. In that case, however, the issue was whether the re- ferral system had been applied in a discriminatory manner, not whether the system itself was discriminatory. In its exceptions, the Respondent broadly contends, inter alia, that the Board should “reverse” policy and accept contrary appellate court decisions “where there is a specific holding in the circuit where the case arose holding the action involved to be lawful.” In particular, the Respondent asserts that the Board should find lawful the Re- spondent’s system of hiring preferences based on NLRB v. New York Typographical Union, 632 F.2d 171 (2d Cir. 1980), in which the court reversed the Board’s finding, at 242 NLRB 378 (1979), that the respondent union violated Sec. 8(b)(1)(A) and (2) by awarding a preference in hiring to employees in “Category A.” We find this ex- ception without merit. As to the Respondent’s broad contention, there are many instances where the Board has resolved disputed is- sues differently than one or more courts of appeals, and many courts have disagreed with one another regarding relevant issues. Accord- ingly, “the Board has a long-established policy of refusing to acqui- esce in the adverse decisions of the appellate courts.” Provena St. Joseph Medical Center, 350 NLRB 808, 814 (2007). As to the par- ticular issues presented here, we do not believe a different outcome is warranted by New York Typographical Union. There, when reversing the Board, the Second Circuit relied especially on the fact that, even if Category A was limited to union members, there was no rational basis for inferring that the preference given to Category A employees would have the effect of encouraging union membership because Category A was a closed class. New York Typographical Union, 632 F.2d at 182. That is materially different from the situation here. II. OTHER ISSUES 1. We agree with the judge, for the reasons stated by him, that the Union violated Section 8(b)(1)(A) by fail- ing to inform Post employees whom it sought to obli- gate to pay dues or agency fees under a union-security clause of their right under NLRB v. General Motors Corp., 373 U.S. 734 (1963), to be and remain nonmem- bers, and of the rights of nonmembers under Communi- cations Workers v. Beck, 487 U.S. 735 (1988), to object to paying for union activities not germane to the Un- ion’s duties as bargaining agent, and to obtain a reduc- tion in dues and fees for such activities. The General Counsel excepts to the judge’s failure to further find that the Union also violated Section 8(b)(1)(A) by failing to inform C&S employees of their General Motors and Beck rights. We find merit in this exception. Although the General Counsel subpoenaed the Union to provide any notices it had furnished to the C&S employees in this regard, the Union did not pro- duce any notices. We therefore draw an adverse infer- ence that the NMDU never informed C&S employees of their General Motors and Beck rights. See ADF, Inc., 355 NLRB at 84–85, reaffirmed by and incorpo- rated by reference in 355 NLRB 351 (2010). Further, former C&S employees Grados, Atkins, and Gojani, nonmembers who paid an agency fee instead of dues, testified without contradiction that the NMDU never informed them of these rights.17 2. We also agree with the judge that the Union vio- lated Section 8(b)(1)(A) by threatening to bar former C&S employee Daniel Altieri from employment be- cause of an alleged dues arrearage. Altieri was a union member who lost his job when C&S closed in January 2009. The Union claims he was $1445 in arrears on his union dues as of July 2010. In an August 10, 2010 let- ter to him, the Union wrote: In accordance with Article XIV, Section 5, you are ex- pelled from the [NMDU] because you are six (6) months or more in arrears in Union dues. As a result of being an expelled member, you can lose all claims to employment at your employer or at any employer that 17 We also grant the General Counsel’s request to modify the judge’s recommended Order to direct the NMDU to reimburse, with interest, any Post nonmember unit employees who file Beck objec- tions with the Union for any dues and fees exacted from them for nonrepresentational activities since May 24, 2008, and any C&S nonmember unit employees who file Beck objections with the Union for any dues and fees exacted from them for nonrepresentational ac- tivities since September 24, 2008, in accordance with the Board’s de- cision in Rochester Manufacturing Co., 323 NLRB 260 (1997). NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 251 is governed by a collective bargaining agreement be- tween the NMDU and those employers. The judge found that Altieri incurred the dues arrearage at C&S. The Union argues that he incurred the arrearage while working for an employer whose contract contained a lawful union-security clause, and the General Counsel ar- gues that the record does not show where, or even if, Altie- ri was employed at the time he assertedly incurred this dues arrearage, which the General Counsel terms “pur- ported.” The record supports the General Counsel’s posi- tion. Thus, the Union has not established that Altieri actu- ally incurred this dues arrearage. Moreover, even if he had, the letter threatens to preclude his employment at “any employer” whose employees are covered by an NMDU contract in a bargaining unit separate from the C&S unit. The Board has long held such a threat unlaw- ful. See, e.g., Iron Workers Local 118 (Pittsburgh Des Moines Steel Co.), 257 NLRB 564, 566 (1981), enfd. 720 F.2d 1031 (9th Cir. 1983). We therefore find the Union’s letter was unlawful. 3. The General Counsel excepts to certain errors in and omissions from the judge’s recommended Order, including his failure to include (a) a provision directing the NMDU to make whole C&S employees who would have qualified for a transfer to the Times but for the NMDU’s decision to define seniority in the Closing Agreement by industry-wide priority numbers, and (b) a provision directing the NMDU to make whole any for- mer C&S employees who were hired by the Times pur- suant to the closing agreement and placed on the Times seniority list in accordance with their industry-wide priority numbers for any loss of wages and benefits they may have suffered by reason of the NMDU’s deci- sion to define seniority in the closing agreement by in- dustry-wide priority numbers. We find merit in these exceptions and shall modify the judge’s recommended Order accordingly.18 AMENDED CONCLUSIONS OF LAW A. The New York Post Cases 1. At all material times, NYP Holdings, Inc., d/b/a New York Post (Post), a Delaware corporation having an office and place of business at 900 East 132d Street, Bronx, New York, has been an employer engaged in 18 We also find merit in the General Counsel’s exception to the judge’s failure to order the NMDU to post the notice on its bulletin board at the Post’s Bronx, New York facility, and on its bulletin board at the Times’ New York, New York facility, and his failure to order the NMDU to mail the notice to all former employees of C&S who were employed by it from November 20, 2008, through January 4, 2009. commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all material times, the NMDU has been a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of the Post, herein called the Unit, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All Drivers, Route persons, Tail persons (helpers), Util- ity Persons (floor persons, loaders, unloaders, miscella- neous inside activities within the jurisdiction of the Un- ion), Chauffeur--Utility (Utility person, breakdown, re- covery), Trailer Drivers, Dispatchers, Relay Persons, Hi-Lo Operator (when performing work otherwise within the jurisdiction of the Union), Shrink Wrap Ma- chine Operators, Palletizer Operators, Automobile op- erators on routes, Delivery Office Clerks (Billing), Col- lectors (except when the Publisher uses a billing system operated by the Accounting Department), Persons in charge of routing newspaper mail at the NYP facility. 4. At all material times, the NMDU has been the designated exclusive collective-bargaining representa- tive of the Unit, and the NMDU has been recognized as such by the Post. 5. The Post’s recognition of the NMDU as the des- ignated exclusive collective-bargaining representative of the Unit has been embodied in successive collective- bargaining agreements, the most recent of which was entered into on October 29, 2003, and which was effec- tive from October 29, 2003, to September 30, 2010. 6. On December 12, 2008, the NMDU and the Post executed a memorandum of agreement, which modified the collective-bargaining agreement by, among other things, extending it to December 31, 2015. 7. At all material times, based on Section 9(a) of the Act, the NMDU has been the exclusive collective- bargaining representative of the Unit. 8. At all material times, the NMDU and the Post have maintained the following provisions in the collec- tive-bargaining agreement described above: Sections 4- A.4.(a) and (b) and Section 4-A.4.(j). They have also, at all material times, maintained the October 29, 2003 side letter to the collective-bargaining agreement de- scribed above. Maintenance of these contractual provi- sions and the side letter violate Section 8(b)(1)(A) and (2) by discriminating against unit employees with re- spect to hiring and promotion opportunities. 9. By engaging in the conduct described above in paragraph 8, the NMDU has caused and attempted to cause the Post to discriminate against certain unit em- ployees in violation of Section 8(a)(3) of the Act by 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD giving a hiring preference to nonunit individuals based on their membership in the NMDU and/or their em- ployment with an employer that has or had a collective- bargaining relationship with the NMDU in violation of Section 8(b)(1)(A) and (2) of the Act. 10. Since April 10, 2008, a date 6 months prior to the filing of the charge in Case 02–CB–021740, the NMDU has required the Post to assign work to non- Unit employees on the Group 2 list. 11. By engaging in the conduct described above in paragraph 10, the NMDU has caused and attempted to cause the Post to discriminate against certain Unit em- ployees in violation of Section 8(a)(3) of the Act by giving a hiring preference to nonunit individuals based on their membership in the NMDU and/or their em- ployment with an employer that has or had a collective- bargaining relationship with the NMDU in violation of Section 8(b)(1)(A) and (2) of the Act. 12. The collective-bargaining agreement described above in paragraphs 5 and 6 creates an Adjustment Board, consisting of members designated by the NMDU and the Post, which has the authority to add to, delete from, or change the lists for the classifications of extras described in Sections 4-A.4.(a) and (b) of the collective-bargaining agreement. 13. Section 3-A.1 of the collective-bargaining agreement described above requires that the Post’s Group 1 list be maintained at 10 percent of the number of regular situation holders, and an April 26, 2006 Ad- justment Board Order provided that the Group 1 List would be increased to 24 employees at that time. 14. (a) By letter dated July 9, 2008, the Post request- ed that the NMDU convene a meeting of the Adjust- ment Board to elevate employees from the Post’s Group 3 list to fill vacancies on the Group 1 list to bring the Post into compliance with the parties’ collective- bargaining agreement described above. (b) By letter dated July 10, 2008, the NMDU refused the Post’s request. (c) The NMDU engaged in the conduct described above in paragraph 14(b) because it wished to preserve work opportunities for nonunit members employed by employers that have or had a collective-bargaining rela- tionship with the NMDU. (d) By engaging in the conduct described above in paragraph 14(b), the NMDU has caused and attempted to cause the Post to discriminate against certain Unit employees in violation of Section 8(a)(3) of the Act by giving a hiring preference to nonunit individuals based on their membership in the NMDU and/or their em- ployment with an employer that has or had a collective- bargaining relationship with the NMDU in violation of Section 8(b)(1)(A) and (2) of the Act. 15. (a) On February 18, 2009, the NMDU, through the Adjustment Board described above in paragraph 12, published a revised Post Group 1 list made up exclu- sively of nonunit individuals formerly employed by City and Suburban Delivery Systems, Inc. (C&S), an employer that had a collective-bargaining relationship with the NMDU. (b) On August 5, 2009, January 28 and August 17, 2010, the NMDU, through the Adjustment Board de- scribed above in paragraph 12, published revised Post Group 1 lists that contained the names of unit employ- ees formerly listed on the Post’s Group 3 list, individu- als formerly employed by C&S, and various non-unit employees. (c) By engaging in the conduct described above in paragraphs 15(a) and (b), the NMDU has caused and attempted to cause the Post to discriminate against cer- tain unit employees in violation of Section 8(a)(3) of the Act by giving a hiring preference to nonunit indi- viduals based on their membership in the NMDU and/or their employment with an employer that has or had a collective-bargaining relationship with the NMDU in violation of Section 8(b)(1)(A) and (2) of the Act. 16. (a) Section 2-K.2 of the collective-bargaining agreement described above in paragraphs 5 and 6 con- tains the following conditions of employment, herein called the union-security provision: All persons now employed as regular situation holders shall remain members of the Union, and all persons hereafter employed as regular situation holders shall acquire and maintain Union member- ship status no later than thirty (30) days after they at- tain regular situation holder status. All persons now employed as regular situation holders, Group I ex- tras, Group II extras, shall maintain membership in good standing in the Union. Failure to do so, by rea- son of dues delinquency shall, upon notification by the Union to the Publisher, result in the suspension of work privileges for said individuals. All employees not in the category specified above, who are covered by this collective bargaining Agreement, shall be required to pay the provided for agency fee. Failure of such employees to tender such fees within thirty (30) days shall, upon notifica- tion by the Union to the Publisher, result in the sus- pension of work privileges for said individuals. (b) The NMDU expends the monies collected pursu- ant to the union-security provision on activities ger- NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 253 mane to collective bargaining, contract administration, and grievance adjustment, herein called representational activities, and on activities not germane to collective bargaining, contract administration, and grievance ad- justment, herein called nonrepresentational activities. (c) At all material times since on or about May 24, 2008, a date 6 months prior to the filing and service of the amended charge in Case 02–CB–021762, certain unit employees covered by the union-security provi- sion, including all employees on the Post’s Group 3 and 4 lists, have not been members of the NMDU. 17. The NMDU has failed to inform unit employees, including all nonmembers, of the following infor- mation: (a) that they have the right to be or remain a nonmem- ber; (b) that they have a right as a nonmember to object to paying for nonrepresentational activities and to obtain a reduction in fees for such nonrepresentational activi- ties; (c) that they have the right to be given sufficient infor- mation to enable them to intelligently decide whether to object; (d) that they have the right as a nonmember to be ap- prised of any internal union procedures for filing ob- jections. 18. By failing to provide employees of the New York Post notice of their right under NLRB v. General Motors Corp., 373 U.S. 734 (1963), to be and remain nonmembers, and of the rights of nonmembers under Communications Workers v. Beck, 487 U.S. 735 (1988), to object to paying for union activities not germane to the Union’s duties as bargaining agent, and to obtain a reduction in dues and fees for such activities, while maintaining and enforcing a union-security clause, the NMDU failed to meet the notice requirements set forth in Paperworkers Local 1033 (Weyerhaeuser Paper), 320 NLRB 349 (1995), and thereby violated Section 8(b)(1)(A) of the Act. 19. The unfair labor practices of the NMDU de- scribed above affect commerce within the meaning of Section 2(6) and (7) of the Act. 20. The NMDU has not engaged in any other unfair labor practice alleged in the Post complaint. B. The C&S/New York Times Cases 21. (a) City & Suburban Delivery Systems, Inc. (C&S) was, and has been at all material times, a wholly owned subsidiary of The New York Times Company, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. (b) At all material times, the New York Times Com- pany (Times), a New York corporation with its princi- pal place of business in New York, New York, has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 22. At all material times, the NMDU has been a la- bor organization within the meaning of Section 2(5) of the Act. 23. The following employees of C&S, herein called the C&S unit, constituted a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All Drivers, Floormen, Foremen and Apprentices em- ployed by City and Suburban at its facilities. 24. (a) At all material times, the NMDU has been the designated exclusive collective-bargaining representa- tive of the C&S unit, and the NMDU has been recog- nized as such by C&S. (b) C&S’s recognition of the NMDU as the designat- ed exclusive collective-bargaining representative of the C&S unit has been embodied in successive collective- bargaining agreements, the most recent of which is ef- fective until March 30, 2020. 25. At all material times, based on Section 9(a) of the Act, the NMDU has been the exclusive collective- bargaining representative of the C&S unit. 26. The following employees of the Times, herein called the Times unit, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act: Route men; Recovery men; Canada men; Loaders; Dispatchers; Checkers; Mail, relay, plate, and mat chauffeurs when delivery is made by truck; Tiers, car- riers and floor men; Automobile operators on routes and relay mail and newspaper delivery; Men writing wrappers, handling, bagging and tying, by hand or by machine, all papers for New York City delivery; Men in charge of routing of mail at newspaper plants and at railroad, airway, heliport, bus and ferry terminals; Men in charge of bundle conveyor outlets; Men tying rolls; Men in charge of “EI” and subway gangs; Collectors, except in the case of any Publisher using a billing sys- tem operated through the auditing department. Wrap- per writing machines installed in the plant of the New York Times will be manned by a member of the bar- gaining unit provided such wrapper writing is currently performed by a member of the bargaining unit. 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 27. (a) At all material times, the NMDU has been the designated exclusive collective-bargaining representa- tive of the Times unit, and the NMDU has been recog- nized as such by the Times. (b) The Times’ recognition of the NMDU as the des- ignated exclusive collective-bargaining representative of the Times unit has been embodied in successive col- lective-bargaining agreements, the most recent of which is effective until March 30, 2020. 28. At all material times, based on Section 9(a) of the Act, the NMDU has been the exclusive collective- bargaining representative of the Times unit. 29. (a) On November 20, 2008, the NMDU and the Times signed an agreement concerning the closure of the facilities operated by C&S. (b) Under the closing agreement described above in paragraph 29(a), the Times agreed to transfer 65 active C&S regular situation holders to its delivery department in order of their seniority and to offer buyouts in the gross amount of $100,000 each to 140 active C&S regular situation holders in order of their seniority. 30. (a) On November 20, 2008, representatives of the NMDU and the Times signed a side letter to the closing agreement described above in paragraph 29(a), which confirmed their understanding that the term “sen- iority” as used in the closing agreement refers to “in- dustry-wide priority.” (b) The NMDU issues industry-wide priority num- bers to regular situation holders and to certain, but not all, employees classified as extras in units covered by its various collective-bargaining agreements with signa- tory employers. 31. (a) Starting in mid-November 2008, the NMDU and C&S published various lists ranking C&S unit em- ployees at the various C&S facilities in accordance with their industry-wide priority numbers issued by the NMDU for the purpose of establishing seniority for de- termining eligibility for the transfer and buyout options offered in the closing agreement described above in paragraph 29(a). (b) By using industry-wide priority numbers to com- pile the various lists described above in paragraph 31(a), the NMDU bestowed an employment preference on certain C&S unit employees based on their prior employment with employers, other than C&S or its predecessor(s), that have or had collective-bargaining relationships with the NMDU. 32. The NMDU and C&S selected C&S unit em- ployees for positions with the Times and the buyouts offered in the closing agreement described above in paragraph 29(a) in accordance with the C&S unit em- ployees’ industry-wide priority numbers, as described above in paragraphs 30(a) and 31(a). 33. By engaging in the conduct described above in paragraphs 30(a) and 32, the NMDU has caused and at- tempted to cause C&S to discriminate against C&S unit employees by giving an employment preference to C&S unit employees based on their membership in the NMDU and/or their prior employment with an employ- er that has or had a collective-bargaining relationship with the NMDU. 34. (a) On about January 4, 2009, selected former C&S employees were added to the existing Times unit. (b) On about January 4, 2009, selected former C&S unit employees were endtailed to the seniority list at the Times in accordance with their industry-wide priority numbers, as described above in paragraphs 30(a) and 31(a). 35. By engaging in the conduct described above in paragraph 34, the NMDU has caused and attempted to cause the Times to discriminate against certain former C&S unit employees by giving an employment prefer- ence to certain former C&S unit employees based on their membership in the NMDU and/or their prior em- ployment with an employer that has or had a collective- bargaining relationship with the NMDU. 36. (a) A side letter dated June 8, 1999, incorporated into the collective-bargaining agreement described above in paragraph 24(b), contains the following condi- tions of employment, herein called the union-security provision: It shall be a condition of employment that all employ- ees of the Wholesaler, covered by the terms and condi- tions set forth in the Agreement, who are members of the Union, shall remain members in good standing. A member of the Union remains a member in good stand- ing by the payment of the periodic dues and initiation fee of the Union. All employees of the Wholesaler covered by the terms and conditions of the Agreement, but not Union members, must remain in good standing with the Union. A non-member of the Union remains in good standing by the payment of the prevailing agency fee of the Union. Failure of an employee, cov- ered by the Agreement, to remain in good standing with the Union shall subject said employee to the sus- pension of work privileges with the Wholesaler. The Union shall provide an employee who is delinquent in the payment of his/her dues and initiation fee, or agen- cy fee (whichever is applicable) with reasonable writ- ten notice of his/her delinquency to the Union (includ- ing a statement of the precise amount due and the months for which said dues or agency fees are owed), the method used to compute the amount due and an ex- NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 255 planation to the employee that the failure to pay said delinquency within thirty (30) days shall, upon written notification by the Union to the Wholesaler, result in the suspension of work privileges for said employee with the Wholesaler. (b) The NMDU expends the monies collected pursu- ant to the union-security provision on activities ger- mane to collective bargaining, contract administration, and grievance adjustment, herein called representational activities, and on activities not germane to collective bargaining, contract administration, and grievance ad- justment, herein called nonrepresentational activities. (c) At all material times since about September 24, 2008, a date 6 months prior to the filing of the amended charge in Case 02–CB–021931, various unit employees covered by the union-security provision have not been members of the NMDU. 37. The NMDU has failed to inform C&S unit em- ployees, including all nonmembers, of the following in- formation: (a) that they have the right to be or remain a nonmem- ber; (b) that they have a right as a nonmember to object to paying for nonrepresentational activities and to obtain a reduction in fees for such nonrepresentational activi- ties; (c) that they have the right to be given sufficient infor- mation to enable them to intelligently decide whether to object; (d) that they have the right as a nonmember to be ap- prised of any internal union procedures for filing objec- tions. 38. By failing to provide employees of C&S notice of their right under NLRB v. General Motors Corp., 373 U.S. 734 (1963), to be and remain nonmembers, and of the rights of nonmembers under Communications Workers v. Beck, 487 U.S. 735 (1988), to object to pay- ing for union activities not germane to the Union’s du- ties as bargaining agent, and to obtain a reduction in dues and fees for such activities, while maintaining and enforcing a union-security clause, the NMDU failed to meet the notice requirements set forth in Paperworkers Local 1033 (Weyerhaeuser Paper), 320 NLRB 349 (1995). 39. By letter dated August 6, 2010, the NMDU, by Steven Goldstein, threatened to interfere with Daniel Altieri’s employment with any employer with whom the NMDU has a collective-bargaining relationship if Altieri, an employee formerly employed by C&S, did not pay a purported arrearage in union dues. 40. By the conduct described above in paragraphs 38 and 39, the NMDU has been restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act. 41. By the conduct described above in paragraphs 30(a), 32, and 34, the NMDU has been attempting to cause and causing an employer to discriminate against its employees in violation of Section 8(a)(3) of the Act in violation of Section 8(b)(1)(A) and (2) of the Act. 42. The unfair labor practices of the NMDU de- scribed above affect commerce within the meaning of Section 2(6) and (7) of the Act. 43. The NMDU has not engaged in any other unfair labor practice alleged in the C&S/Times complaint. AMENDED REMEDY Having found that the Union violated Section 8(b)(1)(A) and (2) of the Act, we shall order it to cease and desist and to take certain affirmative action neces- sary to effectuate the policies of the Act. Specifically, we shall order the Union to cease and desist from giv- ing effect to or enforcing any collective-bargaining agreements or any other agreements that it has or had with the New York Post, City and Suburban Delivery Systems, Inc., or the New York Times which in any way give preferences in hiring and promotion to one group of employees over another group of employees based either on their status as union members or on the length of time that they have been employed as Regular Situation Holders and/or Group 1 employees by union- signatory employers other than the employers by whom they are employed. Thus, we shall order the Union, in- ter alia, to refrain from enforcing or implementing the Group 2 preference in its collective-bargaining agree- ment with the New York Post, and to notify the Post and all bargaining unit employees who have been em- ployed by the Post on or after April 10, 2008, that it will no longer seek to enforce the discriminatory em- ployment preferences. To remedy the unlawful application of such agree- ments to the New York Post’s Regular Situation Holder and Group 1 lists, we shall order the Union to revise those lists so that former C&S employees who were hired by the Post will be given seniority standing only from the time that they began their employment at the Post, and to further revise the lists so that other Post employees who have worked longer at the Post will be given higher seniority status either as Regular Situation Holders or as Group 1 extras than the former C&S em- ployees. We shall also order the Union to submit these revised lists to the Adjustment Board for approval and, in addition, to request from the New York Post that it 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also request approval of these lists from the Adjustment Board. We shall also order the Union to make whole, with interest, New York Post employees who have suffered any loss of earnings and other benefits because they were disadvantaged (1) in daily hiring by the hiring of Group 2 employees of other union-signatory employers; (2) in promotion to the Post’s Group 1 list by the Un- ion’s July 10, 2008 industry-wide freeze on all Group 1 lists; and/or (3) in promotion to the Post’s Group 1 list by the Union’s use of seniority based on length of ser- vice as a regular situation holder with other union- signatory employers and/or union membership to pro- mote former C&S employees to the Post’s Group 1 list over the Post’s own Group 3 extras and Group 4 casuals who had greater unit seniority, but were not members of the Union. With respect to those disadvantaged in daily hiring by the hiring of Group 2 employees of other un- ion-signatory employers, the Union’s make-whole obli- gation shall terminate after it takes the following steps: (a) refrains from enforcing or implementing the Group 2 preference in its collective-bargaining agreement with the New York Post; and (b) notifies the Post and all bargaining unit employees who have been employed by the Post on and after April 10, 2008, that it will no longer seek to enforce the dis- criminatory employment preferences. To remedy the unlawful preferences at the Times, we shall order the Union to revise the bid list pursuant to which C&S employees made their bids for buyouts and transfers so that seniority is ordered based on the length of time that employees worked for C&S or one of its immediate predecessors as regular situation holders (as reflected by their published and recognized made steady dates) instead of on the length of time that C&S employees worked as regular situation holders for other union-signatory employers.19 In the event that C&S employees who bid for buyouts had their bids rejected because of their placement on the old list, and their bids would have been accepted based on the revised list, the Union shall request the New York Times to pay each of these employees $100,000. If the New York Times de- nies the request, then the Union shall make whole, with 19 The General Counsel excepts to the judge’s recommendation that seniority in the revised list be determined by the length of time employees worked for C&S or one of its immediate predecessors ra- ther than their published and recognized made steady dates. Because it accurately reflects the record, we find merit in this exception. The General Counsel should review and approve any revision of this list, and the Union should provide the General Counsel any documents and/or records necessary to determine the proper placement of C&S employees on this list. interest, any C&S employee whose buyout bid should have been accepted based on unit seniority with C&S. Further, in the event that C&S employees who bid for transfers had their bids rejected because of their place- ment on the old list, and their bids would have been ac- cepted based on the revised list, we shall order the Un- ion to make whole, with interest, those employees who should have qualified for transfers to the Times for any loss of wages and other benefits they may have suffered by reason of the NMDU’s discrimination against them. We shall also order the Union to request that the New York Times revise the seniority of the former C&S em- ployees it hired so that, within this group of employees, their relative seniority vis-à-vis each other reflects their unit seniority as employees of C&S and not their union seniority as employees of other union-signatory em- ployers, and we shall order the Union to make whole, with interest, those employees for any loss of wages and other benefits they may have suffered by reason of the Union’s decision to define seniority in the closing agreement by industry-wide priority numbers. To remedy the Union’s failure to inform unit em- ployees in the respective Post and C&S bargaining units of their General Motors and Beck rights, we shall order the Union to provide the required notices to all unit em- ployees. In addition, we shall order the Union to pro- vide appropriate notices to the Charging Parties who file Beck objections. We shall further order the Union to notify in writing those Post employees whom it initially sought to obli- gate to pay dues or fees under the Post-NMDU con- tract’s union-security clause on or after May 24, 2008,20 and those C&S employees whom it initially sought to obligate to pay dues or fees under the C&S-NMDU contract’s union-security clause on or after September 24, 2008,21 of their right to elect nonmember status and to file Beck objections with respect to one or more of the accounting periods covered by the complaint. With respect to any such employees who, with reasonable promptness after receiving the notices, elect nonmem- ber status and file Beck objections for any one of those periods, we shall order the Union, in the compliance stage of the proceeding, to process their objections, nunc pro tunc, as it otherwise would have done, in ac- cordance with the principles of California Saw & Knife Works, 320 NLRB 224 (1995), enfd. sub nom. Machin- 20 May 24, 2008, is the date 6 months prior to the filing and service of the amended charge in Case 02–CB–021762; see Sec. 10(b) of the Act. 21 September 24, 2008, is the date 6 months prior to the filing and service of the amended charge in Case 02–CB–021931; see Sec. 10(b) of the Act. NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 257 ists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. de- nied sub nom. Strang v. NLRB, 525 U.S. 813 (1998). The Union shall then be required to reimburse the ob- jecting nonmembers for the reduction, if any, in their dues and fees for nonrepresentational activities that oc- curred during the accounting period or periods covered by the complaint with respect to which they have ob- jected. See, e.g., Paperworkers Local 987 (Sun Chemi- cal Corp. of Michigan), 327 NLRB 1011, 1012 (1999). We shall also order the Union to notify Daniel Altieri in writing that it will not seek to prevent him from be- ing employed by any employers because of his purport- ed failure to pay dues while he was employed at his last employer. Where a make-whole remedy is appropriate, backpay due to unfair labor practices resulting in cessation of employment status shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded on a daily basis as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Otherwise, backpay shall be computed in accordance with Ogle Protection Ser- vice, Inc., 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons for the Retarded, supra, compounded on a daily basis as prescribed in Kentucky River Medical Center, supra. Finally, any amounts to be reimbursed to Beck objec- tors under our Order will be with interest as prescribed in New Horizons for the Retarded, supra. ORDER The Respondent, Newspaper and Mail Deliverers’ Union of New York and Vicinity (NMDU), Long Is- land City, New York, its officers, agents, and represent- atives, shall 1. Cease and desist from (a) Giving effect to or enforcing any collective- bargaining agreements or any other agreements that it has or had with the New York Post, City and Suburban Delivery Systems, Inc., or the New York Times that in any way give preferences to one group of employees over another group of employees based on their mem- bership in the NMDU and/or their employment with an employer that has or had a collective-bargaining rela- tionship with the NMDU. (b) Causing or attempting to cause the New York Post to discriminate against employees in the New York Post bargaining unit by giving hiring preferences to nonunit individuals based on their membership in the NMDU and/or their employment with an employer that has or had a collective-bargaining relationship with the NMDU. (c) Causing or attempting to cause the New York Post to prevent the promotion of individuals from Group 3 to Group 1 status in order to give preference in promotion to nonunit individuals based on their em- ployment with an employer that has or had a collective- bargaining relationship with the NMDU and/or their membership in the NMDU. (d) Causing or attempting to cause City & Suburban Delivery Systems and the New York Times to discrimi- nate against certain employees in their respective bar- gaining units by entering into and implementing a clos- ing agreement that gave an employment preference based on employment with an employer that has or had a collective-bargaining agreement with the NMDU and/or membership in the NMDU. (e) Failing to inform employees whom it seeks to ob- ligate to pay dues and fees under a union-security clause of their right under NLRB v. General Motors Corp., 373 U.S. 734 (1963), to be and remain nonmem- bers, and of the rights of nonmembers under Communi- cations Workers v. Beck, 487 U.S. 735 (1988), to object to paying for union activities not germane to the Un- ion’s duties as bargaining agent, and to obtain a reduc- tion in dues and fees for such activities. (f) Threatening to bar employees from employment with other employers because of a purported dues ar- rearage at their last employer. (g) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Revise the seniority lists so that those employees who were hired from City and Suburban Delivery Sys- tems, Inc. by the New York Post will have seniority on- ly from the date of their employment at the New York Post, and further revise seniority lists so that other New York Post employees who have worked longer at the Post are given greater seniority status either as regular situation holders or as Group 1 extras; submit these re- vised lists to the Adjustment Board for approval; and request from the New York Post that it also request ap- proval of these lists from the Adjustment Board. (b) Make whole, with interest, and as specified in the Amended Remedy, any employees of the New York Post for any loss of earnings and other benefits suffered as a result of (1) the enforcement or application of any provision in the NMDU-New York Post collective- bargaining agreement that resulted in the inclusion of any non–New York Post bargaining unit employee in 258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Group 1 list ahead of existing Group 3 extras and Group 4 casuals; (2) the enforcement or application of provisions in the NMDU-New York Post collective- bargaining agreement that resulted in the assignment of extra work to individuals on the NMDU’s Group 2 list rather than to Group 3 extras or Group 4 casuals; or (3) the NMDU’s failure in July 2008 to hold a meeting of the Adjustment Board to elevate Group 3 extras to available positions on the Group 1 list. (c) Notify the Post and all bargaining unit employees who have been employed by the Post on or after April 10, 2008, that it will no longer seek to enforce the dis- criminatory employment preferences that have been found unlawful. (d) Compensate any Post employees entitled to be made whole, as set out in paragraph 2(b) of this Order, for any adverse income tax consequences of receiving their backpay in one lump sum. (e) Revise the bid list pursuant to which C&S em- ployees made their bids for buyouts and transfers to the New York Times so that relative seniority for former C&S regular situation holders is determined by their published and recognized made steady dates instead of by the length of time that C&S employees worked as regular situation holders for other union-signatory em- ployers. If any C&S employees who bid for buyouts had their bids rejected because of their placement on the old list, and their bids would have been accepted based on the revised list, the Union shall request the New York Times to pay each of these employees $100,000. If the New York Times denies the request, the Union shall make whole, with interest, any C&S employee whose buyout bid should have been accepted based on unit seniority with C&S. Further, if any C&S employees who bid for transfers had their bids rejected because of their placement on the old list, and their bids would have been accepted based on the revised list, the Union shall make them whole, with interest, for any loss of wages and other benefits suffered by reason of the NMDU’s discrimination against them. (f) Request the New York Times to revise the sen- iority of the former C&S employees it hired so that, within this group of employees, their relative seniority vis-à-vis each other reflects their unit seniority as em- ployees of C&S as determined by their published and recognized made-steady dates instead of by their union seniority as employees of other union-signatory em- ployers, and make whole, with interest, those employ- ees for any loss of wages and other benefits suffered by reason of the Union’s decision to define seniority in the closing agreement by industry-wide priority numbers. (g) Compensate any C&S employees entitled to be made whole, as set out in paragraphs 2(e) and (f) of this Order, for any adverse income tax consequences of re- ceiving their backpay in one lump sum. (h) Notify in writing all bargaining unit employees of the New York Post and the New York Times of their right to be and remain nonmembers, and of the rights of nonmembers to object to paying for union activities not germane to the Union’s duties as bargaining agent, and to obtain a reduction in dues and fees for such activi- ties. In addition, this notice must include sufficient in- formation to enable employees intelligently to decide whether to object, as well as a description of any inter- nal union procedures for filing objections. (i) Notify in writing those Post employees whom the Union initially sought to obligate to pay dues or fees under the union-security clause on or after May 24, 2008, of their right to elect nonmember status and to file Beck objections with respect to one or more of the accounting periods covered by the complaint. (j) Notify in writing those former C&S employees whom the Union initially sought to obligate to pay dues or fees under the union-security clause on or after Sep- tember 24, 2008, of their right to elect nonmember sta- tus and to file Beck objections with respect to one or more of the accounting periods covered by the com- plaint. (k) With respect to any employees who, with reason- able promptness after receiving the notices prescribed in paragraphs 2(i) and (j) of this Order, elect nonmem- ber status and file Beck objections, process their objec- tions in the manner set forth in the amended remedy section of this decision. (l) Reimburse with interest any nonmember unit em- ployees who file Beck objections with the Union for any dues and fees exacted from them for nonrepresenta- tional activities, in the manner set forth in the amended remedy section of this decision. (m) Notify Daniel Altieri that the Union will not cause or attempt to cause any employer to refuse to give him employment because of his purported failure to pay union dues when he was employed by his last employ- er. (n) Within 14 days after service by the Region, post at its office in Long Island City, New York, and on any union bulletin board(s) maintained by it at the New York Post’s facility in Bronx, New York, and at the New York Times facility in New York, New York, cop- ies of the attached notice marked “Appendix.”22 Cop- 22 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 National Labor Relations Board” shall read “Posted Pursuant to a NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 259 ies of the notice, on forms provided by the Regional Di- rector for Region 2, after being signed by the Respond- ent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are customarily posted. In addition to the physical posting of paper notices, notic- es shall be distributed electronically, such as by email, posting on an intranet or an internet site, or other elec- tronic means, if the Respondent customarily communi- cates with employees and members by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. Because City and Suburban Delivery Systems, Inc. has gone out of business, the Union shall duplicate and mail, at its own expense, a copy of the notice to all former employees employed by C&S at any time between November 20, 2008, and January 4, 2009, inclusive. (o) Within 14 days after service by the Region, deliv- er to the Regional Director for Region 2 signed copies of the notice in sufficient number for posting by the New York Post at its Bronx, New York facility, if it wishes, and for posting by the New York Times at its New York, New York facility, if it wishes, in all places where notices to employees are customarily posted. (p) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS 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 vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” WE WILL NOT give effect to or enforce any collective- bargaining agreements or any other agreements that we have or had with the New York Post, City and Subur- ban Delivery Systems, Inc., or the New York Times that in any way give preferences to one group of em- ployees over another group of employees based on (1) their union membership and/or (2) their employment with an employer that has or had a collective- bargaining relationship with the Newspaper and Mail Deliverers’ Union of New York and Vicinity (NMDU). WE WILL NOT cause or attempt to cause the New York Post to discriminate against employees in the New York Post bargaining unit by giving hiring preferences to nonunit individuals based on (1) their union member- ship and/or (2) their employment with an employer that has or had a collective-bargaining relationship with the NMDU. WE WILL NOT cause or attempt to cause the New York Post to prevent the promotion of individuals from Group 3 to Group 1 status in order to give preference in promotion to other individuals based on (1) their union membership and/or (2) their employment with an em- ployer that has or had a collective-bargaining relation- ship with the NMDU. WE WILL NOT cause or attempt to cause the New York Times to discriminate against certain employees in the Times bargaining unit by giving an employment preference based on (1) union membership and/or (2) employment with an employer that has or had a collec- tive-bargaining relationship with the NMDU. WE WILL NOT fail to inform employees whom we seek to obligate to pay dues and fees under a union- security clause of their right under NLRB v. General Motors Corp., 373 U.S. 734 (1963), to be and remain nonmembers, and of the rights of nonmembers under Communications Workers v. Beck, 487 U.S. 735 (1988), to object to paying for union activities not germane to our duties as bargaining agent, and to obtain a reduction in dues and fees for such activities. WE WILL NOT threaten to bar employees from em- ployment with other employers because of a purported dues arrearage at their last employer. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights listed above. WE WILL submit revised seniority lists of those em- ployees who were hired from City and Suburban Deliv- ery Systems, Inc. so that they will have seniority only from the date of their employment at the New York Post, and further revise any seniority lists so that other New York Post employees who have worked longer at the Post are given greater seniority status either as Reg- ular Situation Holders or as Group 1 extras; WE WILL 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD submit these revised lists to the Adjustment Board for approval; and WE WILL request from the New York Post that it also request approval of these lists from the Ad- justment Board. WE WILL make whole, with interest, any employees of the New York Post for any loss of earnings and oth- er benefits suffered as a result of (1) the enforcement or application of any provision in the NMDU-New York Post collective-bargaining agreement that resulted in the inclusion of any non-New York Post bargaining unit employee in the Group 1 list ahead of existing Group 3 extras and Group 4 casuals; (2) the enforcement or ap- plication of provisions in the NMDU-New York Post collective-bargaining agreement that resulted in the as- signment of extra work to individuals on the NMDU’s Group 2 list rather than to Group 3 extras or Group 4 casuals; or (3) our failure in July 2008 to hold a meet- ing of the Adjustment Board to elevate Group 3 extras to available positions on the Group 1 list. WE WILL notify the Post and all bargaining unit em- ployees who have been employed by the Post on or af- ter April 10, 2008, that we will no longer seek to en- force the discriminatory employment preferences found unlawful. WE WILL revise the bid list pursuant to which C&S employees made their bids for buyouts and transfers to the New York Times so that seniority is determined by their published and recognized made steady dates in- stead of by the length of time that C&S employees worked as regular situation holders for other union- signatory employers. If any C&S employees who bid for buyouts had their bids rejected because of their placement on the old list, and their bids would have been accepted based on the revised list, WE WILL re- quest the New York Times to pay each of these em- ployees $100,000. If the New York Times denies the request, WE WILL make whole, with interest, any C&S employee whose buyout bid should have been accepted based on unit seniority with C&S. Further, if any C&S employees who bid for transfers had their bids rejected because of their placement on the old list, and their bids would have been accepted based on the revised list, WE WILL make whole, with interest, those employees who should have qualified for transfers to the Times for any loss of wages and other benefits suffered by reason of our discrimination against them. WE WILL request the New York Times to revise the seniority of the former C&S employees it hired so that, within this group of employees, their relative seniority vis-à-vis each other reflects their unit seniority as em- ployees of C&S as determined by their published and recognized made steady dates instead of their union seniority as employees of other union-signatory em- ployers, and WE WILL make whole, with interest, those employees for any loss of wages and other benefits suf- fered by reason of our decision to define seniority in the C&S closing agreement by industry-wide priority num- bers. WE WILL compensate any employees of the New York Post, City & Suburban Delivery Systems, and the New York Times entitled to be made whole by reason of our discrimination against them for any adverse in- come tax consequences of receiving their backpay in one lump sum. WE WILL notify in writing all bargaining unit em- ployees of the New York Post and the New York Times of their right to be and remain nonmembers, and of the rights of nonmembers to object to paying for union ac- tivities not germane to our duties as bargaining agent, and to obtain a reduction in dues and fees for such ac- tivities. In addition, this notice will include sufficient information to enable employees intelligently to decide whether to object, as well as a description of any inter- nal union procedures for filing objections. WE WILL notify in writing those New York Post em- ployees whom we initially sought to obligate to pay dues or fees under the union-security clause on or after May 24, 2008, of their right to elect nonmember status and to file Beck objections with respect to one or more of the accounting periods covered by the complaint. WE WILL notify in writing those former C&S em- ployees whom we initially sought to obligate to pay dues or fees under the union-security clause on or after September 24, 2008, of their right to elect nonmember status and to file Beck objections with respect to one or more of the accounting periods covered by the com- plaint. WE WILL, with respect to any employees who, with reasonable promptness after receiving the notices pre- scribed above, elect nonmember status and file Beck objections, process their objections in the manner set forth in the Board’s decision. WE WILL reimburse with interest any nonmember unit employees who file Beck objections for any dues and fees exacted from them for nonrepresentational ac- tivities, in the manner set forth in the Board’s decision. WE WILL notify Daniel Altieri that we will not cause or attempt to cause any employer to refuse to give him employment because of his purported failure to pay un- ion dues when he was employed by his last employer. NEWSPAPER AND MAIL DELIVERERS’ UNION OF NEW YORK AND VICINITY NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 261 The Board’s decision can be found at www.nlrb.gov/case/02–CB–021740 or by using QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. Olga C. Torres, Esq., Susannah Ringel, Esq., and Colleen Fleming, Esq., for the General Counsel. Dan Silverman, Esq. and Warren Mangan, Esq., for the Re- spondent. Michael J. Lebowich, and Corinne M. Osborn, Esqs., for the New York Times and Elliot S. Azoff, Esq., for the New York Post. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. I heard this case in New York on various dates from September 19, 2011, to October 5, 2011. The charges and the amended charges in these consolidated cases were filed by the respective charging parties on various dates commencing in October 2008. On January 26, 2011, the Acting Regional Director issued a consolidated complaint in Cases 02–CB–21740, 02–CB–22366, 02–CB–21749, 02–CB–21762, 02–CB–21827, 02–CB–21828, 02–CB–21829, 02–CB–21845, and 02–CB–21905. These charges and the consolidated complaint based on these charges all relate the events and transactions involving the New York Post. On January 26, 2011, the Acting Director issued a consoli- dated complaint in Cases 02–CB–21842, 02–CB–21899, 02– CB–21931, and 02–CB–21941. This consolidated complaint dealt with a set of facts relating to a company called City and Suburban and the New York Times. This complaint was later amended on April 25, 2011, and added three additional charges in Cases 02–CB–219946, 02–CB–22015, and 02–CB–22051. All of these charges and allegations arose out of the circum- stance that a company called City and Suburban, a newspaper wholesaler, went out of business in late 2008. (City and Subur- ban will mainly be referred to as C&S). The delivery depart- ment employees of that Company, numbering about 500, which was a wholly owned subsidiary of the New York Times, were represented for bargaining purposes by the respondent union. (Herein called either the Union or the NMDU). In anticipation of the closing, the Union sought and made arrangements with the New York Times (the parent corporation), to either offer the permanent employees or a class of regular part-time employees of C&S (a) a buyout of $100,000, (b) an arrangement where some of the employees would to be transferred to the payroll of the New York Times, or (c) to receive severance pay. (The severance pay option was the least favorable to the employees). In addition, the Union sought and obtained the consent of some of the other union-signatory companies, including the New York Post, to hire at least some of these C&S employees. The Contentions of the Parties Issue I In the context of the New York Post cases, the General Counsel alleges that a longstanding provision in the Hir- ing/Seniority clause of the collective-bargaining agreement (and predecessor contracts), relating to Group 2 employees is illegal on its face. The theory is that this contract provision gives automatic preference for daily job assignments at the Post to certain permanent and regular part-time employees employed at other companies having contracts with the NMDU (union signatories), and who, for the most part, are union members, over a category of regular part-time employees of the Post who are classified in Group 3 and who are not eligible for union membership. It is noted, that this provision in the NMDU/Post contract is identical to almost all contracts that the Union has maintained with other employers in the industry and the provi- sion has been in existence for at least 40 years.1 This priority preference has been in multiple successive contracts and the General Counsel alleges that its continued application within the 10(b) statute of limitations period is a continuing violation. A more complete description of the hiring/seniority practices will be described below. With respect to the above, it should be noted that the collec- tive bargaining agreements between the NMDU and the various employers including the Post do not explicitly state that any preference for hiring, job assignments, or anything else is based on union membership or length of time that an individual has been a union member. On the other hand, the contract clearly does set up a category of employees (Group 2), who are given daily preferences over nonunion employees, with respect to hiring assignments based on the former’s length of service with union-signatory compa- nies in circumstances where these employees are not part of a multiemployer bargaining unit. See Seafarers International Union, 244 NLRB 641 (1979), where the Board concluded that the General Counsel established a prima facie case that Re- spondent’s implementation of a hiring hall referral system, in strict adherence to the seniority preferences and in tandem with the union-security requirements upon signatory employers, unlawfully favored jobseekers who were union members over nonmembers and also required signatory employers to discrim- inate with respect to hiring. If it is determined that the Group 2 hiring provisions in the 1 An exception involves a predecessor company of C&S (Imperial Delivery), that had negotiated a separate contract with the NMDU and had been successful in eliminating the hiring/seniority provision in the typical contracts that the NMDU made with other employers in the industry. 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Post contract is a violation of the Act, the remedy would be to require the NMDU to not enforce or to rewrite its collective- bargaining agreement with the Post to eliminate the Group 2 preference entirely. Presumably, this would also form a prece- dent requiring the reformation of all contracts between the NMDU and other employers having the same or substantially similar contract provisions. A remedy might also require the Union to make whole any employees of the Post who lost job opportunities because of the Group 2 hiring preference. How- ever, any backpay would be limited to a period starting from 6 months prior to the filing of the charges. Issue II Another allegation in the New York Post cases involves the contention that in January 2009, about 50 employees of the closed City and Suburban (C&S), who opted for job transfers (instead of the buyouts), were hired by the Post (with the lat- ter’s agreement), and were given seniority preferences over a category of existing New York Post part-time employees who were not union members at the time. It is alleged that this pref- erence that was acceded to by the Post, was based on the fact that the employees transferred from C&S were either union members and/or were employed in union-signatory shops, as opposed to the particular group of adversely affected Post em- ployees who were not eligible for union membership. Because the Post and the C&S bargaining units were separate and dis- tinct, the General Counsel alleges that this preference was un- lawful and that the Union, by entering into such an agreement with the Post, caused or attempted to cause the Post to discrim- inate against employees who were not union members. Or put in a different way, to discriminate in favor of individuals who were union members or who had worked in shops having a collective-bargaining agreement with the Union. If the General Counsel is successful in proving its case in re- lation to the Post, one aspect of the remedy would be that em- ployees who were employed by the Post before the transfers and who were passed over in terms of Post seniority, should bump all of the employees of C&S who were hired by the Post. To the extent that it is shown, either in the principle case or in a compliance setting, that some of the disadvantaged employees did not receive work because of their lower rank, the Union would be liable to make them whole for lost income or benefits. (No charges were filed against the Post and therefore the com- pany is not a party defendant to these actions. Accordingly, it would not be liable for damages or subject to any mandatory affirmative relief.) Issue III The allegations involving C&S and the New York Times al- so arise out of the events that transpired in anticipation of and after C&S went out of business. As noted above, C&S was a wholly owned subsidiary of the New York Times. In anticipation of its closing, the Union and the Times entered into an agreement that provided for the fol- lowing. The permanent employees of C&S (as opposed to any casual employees), were offered three choices. A buyout in the amount of $100,000 was offered to 140 employees and the opportunity to make this selection was based on a form of sen- iority represented by what is called an industrywide priority number. This, as will be explained later on, is not necessarily the same as the seniority date for the employees of C&S and in some cases may be older. For many of the older employees nearing retirement, the buyout was the optimal choice and ulti- mately there were 140 C&S employees whose choice for this option was initially granted. The Times also offered 65 posi- tions on its own payroll for those individuals who opted for that choice. Again, the employees were selected on the basis of their industrywide priority numbers instead of their seniority with C&S. Finally, for the remainder, who neither had the requisite low priority number to obtain 1 of the 140 buyouts or 1 of the 65 transfers, they were relegated to a rather meager severance pay package. Without going into all the details, it is the General Counsel’s theory that this agreement with the Times that was made in late 2008 and implemented in January 2009, was unlawful and that the Union violated Section 8(b)(2) because it caused the Times to utilize a method for selecting employees for buyouts or transfers based not on their actual seniority with C&S, but based on their total length of service in the industry including their employment with other employer’s having collective- bargaining agreements with the Union. If the General Counsel is successful in proving the above al- legations, the remedy would require the Union to recalculate the list of people who chose and were selected for the buyouts and/or the transfers. The Union would then be required to pre- sent the new lists to the Times which would be asked to make the payouts based on their seniority status with C&S and not based on the lowest industrywide priority numbers. If the Times refused to make the payments pursuant to the revised order, the Union would then be liable for the money. In this case, the Times had held back payment to the last six individu- als on the buyout list pending the outcome of this case. Thus, it is possible that some or all of these individuals will get the money and that another group of individuals will not. A subset of this issue is whether within the group of former C&S employees hired by the Times, their relative seniority vis- a-vis each other was improperly determined. Issue IV There is an alternative allegation in the New York Times cases involving three employees named Grados, Atkins, and Gojani. The General Counsel claims that these three individuals should have had their buyout bids accepted because they should have been given lower industrywide priority numbers than the ones that they actually received. It also is claimed that when requested to change their numbers within the 10(b) period, the Union refused to do so for arbitrary or invidious reasons. I must confess that I am not sure what the General Counsel proposes should be their correct numbers. The evidence seems to point to the fact that numbers were assigned to them as of the time that they received promotions at C&S to regular situation holder status, which would be consistent with the Union’s longstanding practice. The General Counsel pointed to Newspaper & Mail Deliv- ers’ Union of New York (City and Suburban Delivery System), 332 NLRB 870 (2000), where the Board concluded that the Union caused C&S to refuse to promote, in 1998, three other NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 263 individuals (Eduardo Valentin, Jimmy Clark and Willie Miles), to permanent regular situation holder positions because they either were or were perceived by the Union to be strike break- ers in 1992. I may be mistaken, but it seems that the General Counsel is implying that Grados, Atkins, and Gojani, who also were strike breakers at the same time, should be placed in the same shoes as Valentin, Clark, and Miles. But the Board’s deci- sion in that case only included the three charging parties in the Remedy and since that case has been closed for a good long time, the Respondent could argue that the General Counsel is improperly attempting to relitigate the prior case on behalf of a new set of charging parties. Issue V The complaint alleges violations of the Act under Communi- cations Workers of America v. Beck, 487 U.S. 735 (1988). Basically, the complaint alleges that employees have not been given adequate notice of their rights to refrain from joining the Union and that the agency fees should not be required on non- members. Issue VI The charge filed by Daniel Altieri (Case 02–CB–22701), as- serts that on August 6, 2010, the Union, by letter, threatened him with loss of employment with any union-signatory em- ployer because he was in arrears on his union dues at C&S. A summary of the arguments by the General Counsel and the Union The Union does not contest the fact that it sought and ob- tained agreement by the Post to give the full-time employees and a category of regular part-time employees of C&S certain preferences over certain part time employees of the New York Post. There is also no question but that as a result of this pref- erence, the transferred C&S employees thereby enjoyed certain benefits over the preexisting nonunion Post part-time employ- ees in terms of job selection, vacation selection, etc. Nor does the Union contest the fact that among the former employees of C&S, the closing agreement with the Times af- fected their ability to choose buyouts and/or job transfers. Thus, some employees who had more seniority with C&S were passed over by some other employees of C&S who had lower industrywide priority numbers, meaning that they had worked longer in the “industry.” Coincidently, as priority numbers generally are given out at the time that an employee becomes eligible for union membership (and for the most part such em- ployees join the union), the priority number will in almost all cases correspond to the date that an individual becomes a union member. (There are a very few exceptions which will be dis- cussed below). The Union argues that in accordance with the terms of its collective-bargaining agreements with the Post and the Times, both companies had agreed that in the event that if any of a named group of companies (all having contracts with the Un- ion), went out of business, then the remaining employers would give preference in hiring to certain employees of the defunct company and upon hire, place those people ahead of certain casual employees that were already employed by the acquiring employers. In this respect, the Union argues that it is or should be legal for it to make an agreement with unionized employers whereby a system of industrywide “seniority” is used to deter- mine how to manage a situation where a large number of em- ployees at a union-signatory company lose their jobs when that company goes out of business. The Union contends that the preferences were not based on whether individuals were union members or on their length of union membership, but rather on their length of service within the “industry.” I do note howev- er, that when the Union uses the word “industry” it is referring only to companies that have collective-bargaining agreements with the NMDU. Excluded from its definition of the “industry” are any companies that deliver newspapers or magazines within the same geographic area but whose employees are not repre- sented by the Union. And in this connection, it is apparent from the record that such companies do exist and have been utilized by the Post in the past. Moreover, the Union’s definition of the “industry,” which limits it to companies who only deliver newspapers and maga- zines could be construed artificial in itself. The essential func- tion of this group is to deliver a physical product from one place to another, utilizing trucks. As far as I can see, the work here does not involve any kind of specialized knowledge or skills. There are, no doubt, tens of thousands of people in the greater New York Metropolitan area who have Commercial Drivers Licenses and who drive trucks for thousands of compa- nies that do not have contracts with the NMDU. Thus, the universe of potential employees who could do this work is huge and all of these people, if they seek work at the Post, would be at a disadvantage vis-a-vis any person who was a steady em- ployee at an NMDU signatory company other than the New York Post and who was in the Group 2 category. And as noted above, people in the Group 2 category are and have been, with the most minor of exceptions, NMDU members. The General Counsel counters that even if the arrangements made in late 2008 were based on industry seniority, that meas- ure of seniority (in the form of industrywide priority numbers), was based on an employee’s length of service with union- signatory companies. While agreeing that the use of a form of industrywide seniority might have been appropriate if it were applied to employees within a multiemployer bargaining unit encompassing C&S, the New York Times, and the New York Post, the General Counsel argues that by the time of the events in this case, none of these companies bargained through a mul- tiemployer association and neither the employees of the Times, the Post, nor C&S were part of any multiemployer bargaining unit. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed, I make the following2 FINDINGS AND CONCLUSIONS I. JURISDICTION The parties agree and I find that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. It 2 The unopposed motion to correct the transcript filed by the Gen- eral Counsel is hereby granted. See Appendix A. 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also is agreed that the New York Times and the New York Post are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It therefore is concluded that the actions by the Respondent union would affect com- merce within the meaning of the Act. II. THE FACTS There is little or no dispute about the facts in these cases. The basic facts are well known and the different positions of the parties relate to what inference can reasonably be drawn from those facts and how the law should be applied. (a) A Bit of History The Union has been in existence from the beginning of the 20th century and has represented in the New York Metropolitan area, employees who have been delivering newspapers and magazines.3 These employees, who basically work as truck drivers, have been employed either directly by publishers, such as the New York Times, the Daily News, the Post, and a variety of other smaller or now defunct newspapers, or by a group of relatively small companies that perform delivery services for the publishers. The latter enterprises are called wholesalers. For many years, the Union has represented these types of employees in two major multiemployer associations. The Pub- lishers’ Association of New York City essentially was an asso- ciation of newspaper publishers that bargained collectively on behalf of its employer members with respect to their delivery department employees. At one time or another, the New York Times and The Post were members of this association. The other major association was the Suburban Wholesalers’ Associ- ation which represented a group of wholesale delivery compa- nies. There also have been some publishers, such as the Daily Forward, that have always bargained separately from any asso- ciation. At the time that the events in these cases transpired, both multiemployer associations had become defunct and the there no longer existed any multiemployer bargaining units. The nature of this industry is that the Employers have tended to employ a group of regular employees (mostly men), who work day in and day out throughout the year. These people are called regular situation holders and are sometimes referred to in the contract or other documents as RHSs. However, the prac- tice has been that employers have, at times, also tended to em- ploy extra employees who shape up for work and who are given assignments on a daily basis when the regular work force is insufficient to get the newspapers out. The other basic tendency regarding employment in this in- dustry is that there has been a significant degree of nepotism whereby the sons of current employees and union members have had a big leg up in obtaining employment and preferred seniority status. See Judge Pierce’s Decision in Patterson v. NMDU et al, 384 F. Supp. 585 (S.D.N.Y. 1974). 3 The employees represented by the Union have been employed by a variety of companies within a geographic area consisting of the City limits of New York City, and all territory within a radius of about 50 miles from Columbus Circle. This area includes Long Island, parts of New Jersey, parts Westchester, and portions of lower Connecticut. In or about 1952, the Union convinced all of the employers with which it maintained contracts to set up a hierarchal struc- ture for hiring extra employees.4 Thus, each employer would have a group of steady employees that were called regular situ- ation holders and would also be required to employ extras with- in a defined structure. The extras were divided into four cate- gories as follows: Group 1. Until 1974, this group consisted of persons who once had regular situations in the industry. That is, anyone who at any time had been employed as a regular situation holder by any employer within the Greater New York Metropolitan area that had a collective-bargaining agreement with the Union. Each union-signatory publisher or wholesaler maintained its own Group 1 list and the individuals on that list would general- ly have first crack at delivery jobs that were available on any given day in the order of their seniority on the Group 1 list. After 1974, the Group 1 list was changed to include former regular situation holders who had lost their regular situations or Group 1 status at another NMDU signatory employer within the industry. 5 Group 2. The people on the Group 2 list consist of individu- als who are employed by any union-signatory employer within the Greater New York Metropolitan area and who either are employed by those companies as regular situation holders or have been employed as Group 1 extras by those companies. The Group 2 list is an industrywide list that is compiled by the Union and this is unlike the Group 1 lists that are maintained separately by each employer. People on the industrywide Group 2 list are entitled to shape for extra work at any signato- ry company and be accorded the next highest preference after all people on the particular employer’s Group 1 list have been exhausted. Relative seniority on the Group 2 list depends on when an individual first was promoted to a Group 1 list. Be- cause an individual almost invariably becomes a union member and given a union number at the same time he is promoted to a Group 1 list, his place on the Group 2 list is coextensive with the date that he because a union member. (Except for the very rare instance where a person may have decided not to become a member and opted to pay an agency fee instead). Group 3. The people on this list are those individuals who regularly shape for work at a particular employer and who ob- tain regular work over a given period of time.6 Each employer maintains its own Group 3 list and the people on that list could be described as regular part-time employees of that particular employer. The individuals on an employer’s Group 3 list will obtain work by their particular employer after that company’s regular situation holders go out; after the Group 1 list has been 4 At that time, the Union dealt with employers within a multiem- ployer bargaining context and it thereby was far easier to reach agreements affecting multiple employers. 5 It is significant to me that it is agreed that when the word indus- try is used by the parties they mean to include only employers that utilize delivery employees within the Greater New York area that have collective bargaining agreements with the Union. 6 For an individual to maintain his Group 3 status, he is required to work 5 days/nights per week and shape 6 days/nights per week. The people on any employer’s Group 3 list, therefore cannot by any stretch of the imagination, be described as casual employees. NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 265 exhausted; and after anyone who shows up for work and who happens to be on the Union’s Group 2 list has been sent out to work. People on the Group 3 lists generally have seniority within that list and within the particular company that employs them. Unlike employees who are regular situation holders or on Group 1 lists (and who therefore also have Group 2 status), people on a Group 3 list are prohibited from becoming a union member although their conditions of employment are defined by whatever collective bargaining agreement the Union has with their employer. Also, although barred from union mem- bership, people on Group 3 lists are required to pay regular fees to the Union. As employees who are regular situation holders leave their employers for retirement, illness etc., employees who are on that employer’s Group 1 list will move up to fill the spaces of those regular situation holders who leave. This then makes space for additions to the employer’s Group 1 list, and often, but not always, those openings are drawn from individuals on that employer’s Group 3 list as mutually agreed to by the Union and the employer involved. Upon being elevated from an em- ployer’s Group 3 list to that employer’s Group 1 list, the em- ployee, under the terms of the collective-bargaining agree- ment’s union-security clause, is required to become a union member. (At some point, it was recognized by the union that the union-security clause could not require actual membership; albeit the Union could require the payment of reasonable fees). As a practical matter, the evidence shows that with extremely rare exceptions, the people who are promoted from Group 3 to Group 1 status invariably and simultaneously become union members. Group 4. People in Group 4 are true casual employees and if a company even chooses to have a Group 4 list, the individuals on this list are given work as a last resort. Like people on a Group 3 list, people on a Group 4 list cannot become union members although their wages and conditions of employment are determined by the relevant contract with the employer from whom they seek work. For purposes of this case, the Group 4 provision of the contract is not relevant as there is no conten- tion here that any people in this category were discriminated against. As noted above, although there never was a single multiem- ployer bargaining unit comprising all of the New York publish- ers and/or wholesalers, a good many of the employees repre- sented by the Union, either as regular situation holders or as members of one of the extra groups, were employed by compa- nies that in the past were members of two major employer as- sociations. However, this changed when those associations ceased to exist as bargaining organizations. Therefore, whatev- er multiemployer bargaining units that may once have existed, have long since been disappeared. In 1973, the EEOC sued the Union and most or all of the publishers and wholesalers having contracts with the Union. Additionally, a class of minority persons sued the Union and the employers, claiming racial or ethnic discrimination in terms of hiring practices in violation of Title VII of the Civil Rights Act of 1964. These cases were consolidated and were tried before a Judge of the United States District Court. After 4 weeks of hearings, a settlement was reached and exe- cuted by the Union and the defendant employers, including the New York Times and the New York Post. Notwithstanding some objections by some of Union’s members, the Judge issued a decision approving the settlement. This is reported as Patter- son v. Newspaper & Mail Deliverers’ Union, 384 F. Supp. 585 (S.D.N.Y. 1974) affd. 514 F.2nd 767 (2d Cir. 1975). In review- ing the settlement, the Court of Appeals stated: Although the Union represents all delivery workers, member- ship is limited to Regular Situation holders and Group 1 members. Historically the Union has excluded minorities and has limited its membership to the first born son of a member. Aside from the chilling effect which restriction of union membership to whites might by itself have upon minority per- sons seeking delivery work, there is evidence that minorities were also discouraged from gaining entrance to Group 3 lists, even though Group 3 shapers are not members of the union… While the current group Structure, which was adopted in 1953, appears on its face to open Union membership to any- one in the labor force, union membership, because of lax ad- ministration of the contract provisions, has largely remained attainable only by the family and friends of a union member. Due to the artificial inflation of the Group 1 lists, no person has in practice made the theoretically possible jump from Group 3 to Regular Situation since 1963. The evidence sug- gests that this expansion of the Group 1 lists has been accom- plished primarily by use of voluntary transfers of Group 1 or Regular Situation holders from the lists of smaller distributors to the Group 1 lists of more desirable, larger employers and ultimately to Regular Situations there. Other devices include fictitious lay-offs, enabling the Union member to transfer to Group 1 of a different employer and outright false assertions of Group 1 status by persons who have obtain union member- ship cards, the validity of which have not been challenged by employers. Among other things, the settlement required that the Group 1 definition and the Group 1 promotion procedure be revised so that a regular an orderly number of Group 3 people would be promoted to Group 1 status. It also provided that an outside administrator would be appointed to monitor the process and resolve disputes. The Union contends that the Board should defer to the EEOC settlement which allowed the Union and the signatory employers to retain, with slight modification, the Group Extra system that was contained in its contracts with employers, many of whom were then in multiemployer associations that no longer exist. The General Counsel contends and I agree that the Title VII settlement, while interesting because of the Court’s description of the Union’s history and industry hiring practices, cannot be binding on the NLRB which was not a party to that action. Moreover, the issues in that case involved claims of racial and ethnic discrimination and those are a com- pletely different from the issues that are presently before the Board. That the Union and signatory employers may have resolved claims of racial or ethnic discrimination is admirable; but that resolution has nothing to do with the claims herein that the Union has discriminated in favor of union members and against individuals on the basis of their lack of union member- 266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ship. (b) The New York Post Cases (Exclusive of the Beck issue) The New York Post is a newspaper published by NYP Hold- ings Inc. which is a division of the News Corporation. Its print- ing facility is located in the Bronx where it also prints the Wall Street Journal, Barron’s, and a bunch of smaller community newspapers. The delivery of publications produced at the Bronx facility is done by people directly employed by The Post and they are represented by the Union. As described above, the delivery department employees are either regular situation holders, having permanent positions, or extra workers divided into Groups 1, 3, and 4. All extra employees (apart from Group 2 people who are employed at other companies and who may occasionally shape at the Post), are people who seek work as- signments at the Post. In the case of Group 1 and 3 extras, these individuals are most accurately described as regular part- time employees of the Post. (Group 4 shapers have a more tenuous relationship to the employer). I note that because of a steady diminishment of the newspaper industry, the Post by 2011, no longer had or utilized a Group 3 or 4 list. At one time the Post had been a member of the Publisher’s Association and had maintained its collective-bargaining rela- tionship with the Union through that multiemployer associa- tion. It was during that time that the hiring provisions of the contract were established. It could be said that these contractu- al provisions were at one time, applicable to employees in a multiemployer bargaining unit consisting of various publishers such as the Post and the New York Times. The 1973–1975 collective-bargaining agreement between the Union and the Publishers Association was the last contract to which the Post was a party. In 1975, the Post bargained sepa- rately with the Union and subsequently reached a separate col- lective-bargaining agreement covering its own employees. In 1984, the Publishers Association ceased to function as the bargaining agent for its employer members and thereafter, all surviving publishers negotiated separate collective-bargaining agreements with the Union. The current contract between the New York Post and the NMDU is based on a 2003–2010 agreement as modified by subsequent memoranda of understandings in 2006 and 2008. The 2008 memorandum of understanding extended the expira- tion date of the contract to December 15, 2015. During the 2003 negotiations, the Post and the Union agreed to create a new Group 1 and Group 3 list.7 The Union, though its Business agent initially, Thomas LoDico, sent the Post a proposition that 18 people be included on a Group 1 list, 12 of whom would be based on their length of service in the industry as determined by their union card numbers. He also proposed that 6 persons be chosen for the Group 1 list based on their seniority as casual employees and who had worked 50 or more shifts at the Post in 2003. This union proposal was accepted by the Post and an entity called the Adjustment Board (jointly staffed by employer and union representatives), approved the 7 For reasons not in the record, it seems that for a period before 2003, the Post did not have a Group 1 or Group 3 list. placing of these 18 individuals on the Post’s Group 1 list.8 As of 2003, the Post employed about 184 regular situation holders and the contract allowed that number to be reduced by attrition to 170. In 2006 and 2008, the parties agreed to in- crease the number of regular situations holders respectively to 193 and 204. In the event that regular situation holders retired or died, their spots would be taken by promoting individuals, in order of seniority from the Post’s Group 1 list. And this is what happened over time; with regular situation holders retiring, Group 1 persons were being promoted to those jobs and new people were being placed on the Post’s Group 1 list. It should be noted that as vacancies on the Post’s Group 1 list became open, they sometimes were filled by people on the Post’s Group 3 list and sometimes by people who were em- ployed at other employers who already were NMUD members and who apparently wanted to switch their employment to the Post. For example, General Counsel Exhibit 12 is an Adjust- ment Board order dated August 2004 that shows that when six individuals as on the Post’s Group 1 list were elevated to be- come regular situation holders, another group of six people were elevated to the Post’s Group 1 list. Four of those people already were members of the NMDU and the other two were Group 3 employees who had worked 180 shifts or more during 2003-2004 at the Post. This means that four people who were not extra employees at the Post but who were employed at other companies and were union members, were given preference over the employees on the Post’s Group 3 list who were not union members. Similarly, General Counsel Exhibit 13, dated April 13, 2005, shows that when one person on the Post’s Group 1 list was elevated to being a regular situation holder, George Holtzer was placed at the bottom of the Post’s Group 1 list based on the fact that he was the recipient of a “Father/Son card” and as such was a member of the NMDU in good standing with “no shop.” The exhibit therefore shows that Holtzer, simply by virtue of his union membership bumped everyone on the Post’s Group 3 list.9 The current contract between the New York Post and the Un- ion contains a union-security clause that requires Post employ- ees who are employed as regular situation holders or as Group 1 employees to become or remain members of the Union no later than 30 days after they attain such status. The provision provides that retention of membership is a condition of em- 8 While it is clear that 6 of the individuals chosen for the new Group 1 list were people who had worked on a regular basis for the Post in 2003, it is not clear to me where the other 12 people came from. I am not sure if they were extra workers who also worked on a regular basis at the Post or if they were people who normally worked at other union-signatory employers and who wished to work at the Post as Group 1 regular part-time employees. In any event the evi- dence establishes, primae facie, that in 2003, at least 12 people were chosen by the Union and the Post to be placed on the Post’s newly established Group 1 list based on their union membership seniority. This, however, was outside the statute of limitations period set forth in Sec. 10(b) of the Act. 9 Other exhibits indicate that after 2005, additions to the Post’s Group 1 list came from employees who were on the Post’s Group 3 list. NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 267 ployment. As noted above, individuals who are in Group 3 or Group 4 status are not permitted by the Union to obtain membership status even if, as in the case of Group 3 extras, they work on a regular basis. They are however, covered by the terms of the contract and are required to pay an agency fee as a condition of working for the employer. The 2003 contract also contained a side letter dated October 29, 2003, which is also a provision that is contained in other contracts that Union has with other employers. This letter states: If the Daily News, Newark Star Ledger, Hudson News Com- pany, El Diario, Wall Street Journal, Jersey Journal, the New York Times, City and Suburban Inc., or Oggi cease operation, the New York Post shall add to its Group 1 list RSHs and bo- na fide Group 1 Extras who, through no fault of their own, lose their employment as a result of the cessation of operation and who meet the New York Post’s reasonable qualifications in a number equal to the new York Post’s pro rata share of the total number of RSHs employed pursuant to NMDU con- tracts. After such placement on the Group 1 list, the Group 1 list may once more atrit to 10% of the RSH list. By early 2008, it was becoming apparent to everyone that the side agreement described above might be put to use as there was a distinct possibility that a company called City and Sub- urban (C&S), that was owned by the New York Times was likely to go out of business in the near future. At a later point I will describe in more detail the history of C&S. But for now, it is sufficient to say that C&S, as of 2008, was a wholly owned subsidiary of the New York Times and was engaged in the wholesale delivery of newspapers and mag- azines throughout the New York Metropolitan area. It was, at this time, the result of a conglomeration of smaller companies that had been purchased by the Times and it employed over 350 delivery department employees as regular situation holders or Group 1 extras. These employees were all represented by the NMDU under a separate collective-bargaining agreement and therefore constituted not only a separate bargaining unit from any other employer but also a separate bargaining unit from the group of delivery employees that were directly employed by the Times. Also in 2008, the Post began to feel a need to add additional people to its Group 1 list. Therefore, on July 9, 2008, the Post wrote to the Union and stated: We have a substantial number of openings on the One List. The contract provides that the One List will be maintained at ten percent for the RSH List. I would request a meeting of the Adjustment Board to elevate employees from the Three List to fill the vacancies and bring the Company into compliance with the contract. If the Union continues to refuse to meet to elevate employees because of a citywide freeze on issuing new Union cards, please confirm that fact. The Union’s response dated July 10, 2008 was as follows: In reply to your July 9th, 2008 letter concerning both of our compliance with the New York Post’s One List being main- tained at 10%, please be advised that there is an industrywide “Freeze” on all One Lists, not just the New York Post. In no small part based on the New York Post removing its product from City and Suburban’s Lake Success facility, as well as the Hauppauge facility, as well as economic uncertain- ty through our industry, we, the Union, see no need to fill the- se vacancies on the One Lists throughout the industry at this time. It is obvious to me that in responding to the Post’s request, the Union wanted to keep the Post’s Group 1 list (and the Group 1 lists at other union-signatory companies), unfilled because it and everyone else was aware that City and Suburban was going out of business and therefore, the Union was going to make an effort to have the C&S employees placed elsewhere. One of the effects of the Union’s freeze on adding to the Post’s Group 1 list was that employees on Post’s Group 3 list were denied an opportunity to be promoted to the Post’s Group 1 list. This meant that individuals on the Post’s Group 3 list were subject to losing potential job assignments to people who were on the Union’s Group 2 list, which as noted above, is a separate list generated by the Union and consists of all delivery employees working for all union-signatory employers within the Union’s geographic jurisdiction. As noted above, seniority standing on the Group 2 list is based on the date that an indi- vidual becomes eligible for union membership because he or she was promoted to a signatory employer’s Group 1 list. The person with the lowest number on the Group 2 list has the most seniority on that list. C&S closed its doors in the first few days of January 2009. And pursuant to the side letter described above, the Post agreed to employ a number of people who had lost their jobs at C&S. There were discussions between the Post and the Union regard- ing how this would be accomplished and who would be hired. In February 2009, an agreement was reached and memorialized in an “order” of the Post/NMDU Adjustment Board dated Feb- ruary 18, 2009. This stated in pertinent part: NOW THEREFORE, the Adjustment Board, having met for the purpose of placing displaced City and Suburban Inc. RSHs who lost employment as result of the Employer’s ces- sation of employment on the Post’s One List and to formalize its WSJ 10 One List does determine as follows: 1. The Post’s One List will be expanded to include those named on Exhibit A in the order shown in compliance with the contractual side letter. It is further understood that the foregoing individuals on Exhibit A have been elevated one at a time in the priority listed on the Exhibit. 2. Each of those individuals listed on Exhibit A will be warned that they must shape 6 shifts per week or work 5 shifts per week in order to retain such listing. 3. Any individual who does not shape 6 shifts per week or work 5 shifts per week will on a 4 week basis be warned on his failure to comply with the contract. A second occurrence with a 12 month period will result in immediate removal from the One list. 10 WSJ refers to the Wall Street Journal 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Exhibit A contains 75 names and is described as the Post’s Group 1 list. In this regard, the evidence was that 75 former employees from C&S applied and were accepted by the Post but that there were 25 individuals who failed to show up. Therefore, what seems to have occurred is that 50 individuals who had previously been employed by C&S, all or almost all of whom were union members were placed on a new Post Group 1 list.11 For purposes of this case, the salient fact is that the set of C&S employees who were hired by the Post and placed on the newly expanded Group 1 list bumped all of the people who had been employees on the Post’s Group 3 list, many of whom remained on that list. Moreover, even as to those individuals who were promoted from the Post’s Group 3 list to the newly established Group 1 list, they were placed in lower seniority status than the displaced individuals who were hired from C&S. The criteria used to establish seniority within the new Post Group 1 list was the union’s industrywide number, which as noted above, is a number that one gets from the Union when an individual becomes eligible for union membership. And be- cause most or all of the people who came from C&S had been employed for many more years in union-signatory shops, they were given greater seniority standing than the employees who were on the Post’s Group 3 list and who either remained on the Group 3 list or were promoted in February 2009 to the new Post Group 1 list. As pointed out by the General Counsel, the relative seniority position of people on the Post’s Group 1 list not only affects the order in which people are assigned to daily jobs,12 but it also affects other aspects of their work, such as vacation preferences.13 The evidence also shows that in 2010 and 2011, the Post promoted a number of employees from its Group 1 list to regu- lar situation holders. All of these individuals were former C&S 11 In accordance with the Decision in Beck, the Union issued a no- tice to its members through its publication that the union-security clauses in various contracts did not actually require union member- ship. This was published on one occasion in 2003 and was not repub- lished thereafter. It therefore is possible that the small number of in- dividuals who have worked in Union shops have either not become members or given up their membership after receiving this notice. There is evidence that as of January 2008, there were about 2700 people employed at employers having NMDU contracts and that at least 95 percent of them were union members. The evidence also shows that as of August 2011 there were over 1000 employees work- ing in NMDU contract shops, of which fewer than ten were not union members. See Respondent Exhibit 25. Moreover, of the people who have worked in NMDU signatory shops, there is a small category of people who although not members, have been denied membership because they admitted that worked at one time at a company having an active dispute with the Union. 12 Work is assigned on a daily basis first to the regular situation holders and then to Group 1 people in their order of seniority on that list. As noted above, if a Post Group 3 person had not been promoted to the Group 1 list in February 2009, he or she would be subject to being bumped for a job assignment by any person who showed up and was on the Union’s Group 2 list. 13 After February 18, 2009, the Post Group 1 list was slightly mod- ified and additional people were added to the Post Group 1 list on August 5 and 7, 2009 and on January 10, 2010. See GC Exhs. 23, 24, and 25. employees, who as noted above, were afforded greater seniority than existing Post employees despite the fact that the Post em- ployees had worked longer at the Post than the newly hired C&S employees. This obviously adversely affected the em- ployees of the Post who did not come from C&S. 14 Another example of where Post Group 3 employees were adversely affected was in an Adjustment Board “order” dated August 17, 2010, where the Post’s Group 1 list was augmented by a number of people and where former C&S employees (hav- ing more union seniority) were placed ahead of three Group 3 employees who were promoted, but to the bottom of the Post’s Group 1 list.15 (c) The C&S/New York Times Cases The New York Times originally created City and Suburban by purchasing, over time, four wholesale distributors. In 1992 it purchased Metropolitan News Company and the Newark Newsdealer Supply Company. In 1996 it purchased Imperial Delivery Service and another company called Raritan Periodi- cal Sales Company. All of these companies employed delivery employees who were represented by the NMDU. And when these employees were incorporated into C&S, the collective- bargaining agreement between the NMDU and C&S contained the same provisions. These contracts also contained the same union-security provisions in relation to regular situation holders and Group 1 extras and the same agency fee provisions relating to all other extras. At one time, some of the acquired wholesalers were mem- bers of the Suburban Wholesalers’ Association an organization that represented its employer/members in bargaining with the NMDU. Nevertheless, by the time C&S was created, this As- sociation had ceased to exist and C&S negotiated separately with the Union. In fact, before 1999, C&S negotiated two sep- arate if similar collective-bargaining agreements with the Un- ion; one covering the employees of Newark Newsdealer and Metropolitan News and the other for the former employees of Raritan. As to Imperial, C&S assumed the existing contract between that company and the Union. It was not until 1999 that a single overall contract was made between C&S and the Union and this agreement was in effect until March 30, 2008. It thereafter was extended by the parties until March 30, 2020. Unlike the publishers, C&S’s contact provided for two cate- gories of delivery department employees; regular situation holders who were guaranteed five shifts per week and extras. Seniority for regular situation holders was determined by what is called a “make steady date.” This is the date that an employ- ee became a regular situation holder with C&S or with one of the predecessor companies that C&S acquired. This is not the same seniority date that is used when individuals become union members and acquire a union “industrywide priority numbers.” At C&S, there were separate seniority lists. One was for the New Rochelle and Moonachie facility (Westchester); a second was for the Edison and Wall facilities (New Jersey); and the third was for the Lake Success and Hauppauge facilities (Long Island). 14 This is reflected in GC Exh. 29. 15 This is reflected in GC Exh. 26. NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 269 The situation was somewhat complicated for employees who had previously worked for Rockland County News employees because many were transferred from their facility to the New Rochelle facility. Although the Union and C&S agreed to merge the seniority of the two groups of employees, there was a dispute as to how to accomplish that result. Accordingly, the issue was placed before an arbitrator who, pursuant to an award issued on January 1, 2002, decided that the employees who were on the Rockland County seniority list should be dove- tailed with the employees who were on the New Rochelle sen- iority list.16 In accordance with the award, an individual’s sen- iority status at the consolidated facility was then determined by the date that the driver became a regular situation holder at the facility that he had worked at before the two facilities were merged. In reading the award, the principle dispute was wheth- er the seniority lists should be dovetailed or end tailed. Alt- hough there was a contention that an individual’s industrywide priority number (i.e. his total length of employment with union- signatory employers), should be the basis for determining sen- iority, this contention, at least as it appears from the arbitrator’s decision, does not seem to have been seriously argued and was rejected. As in the case of other NMDU signatory employers, when C&S needed to utilize employees after exhausting its regular situation holder list, it referred employees to job assignments by the aforementioned Group 1 and 2 complements, plus an- other more amorphous group of casuals. As noted above, Group 2 extras are people who have industrywide priority numbers issued by the Union on the basis of when they attained RHS or Group 1 status at any signatory employer and therefore became eligible for union membership. Also as noted above, it is a rare exception when anyone chose not to become a union member. There was, however, a small group of individuals who would otherwise have become eligible for union member- ship but who were refused membership. Insofar as C&S is concerned, individuals who, from time to time, sought and obtained employment based on their Group 2 seniority status were placed ahead of any individuals who sought employment on a more casual basis. In 1992, Imperial, a predecessor to C&S was engaged in a labor dispute with NMDU and during a work stoppage, it hired a group of employees as replacements. These included Enrique Grados, Richard Atkins, Djevalin Gojani, Willie Miles, Jimmy Clark, and Eduardo Valentin. When C&S purchased this com- pany it hired the predecessor’s employees including these peo- 16 In 1997 or 1998, C&S closed the Rockland facility acquired through the purchase of Rockland News and transferred those drivers to other facilities, a majority of which were transferred to New Ro- chelle. Following the transfer to New Rochelle, the company operated with two seniority lists, one for the former New Rochelle employees and the other for the former Rockland News employees. In 1999, C&S and the NMDU agreed to merge the two seniority lists for the employees working out of New Rochelle facility and merge the lists for the employees who were working at two facilities in New Jersey. In merging the New Rochelle lists there was a dispute as to whether the Rockland employees should be dove tailed or end tailed for sen- iority purposes. When no agreement was reached the matter was arbi- trated. ple. In NMDU (City & Suburban Delivery System), 332 NLRB 870 (2000), a case involving charges filed by Miles Clark and Valentin, the Board issued a decision which concluded that the Union violated Section 8(b)(1)(A) and (2) by vetoing, in May 1998, the promotion of these specific individuals to regular situation holder positions at C&S because they had crossed a picket line in 1992. Complying with the Board’s Order, Miles, Clark, and Valentin were reassigned new made steady dates to May 4, 1998. Therefore their seniority status on the C&S regu- lar situation holder was made retroactive to May 4, 1998, in- stead of May 21, 2000, when the employer actually promoted them to the regular situation holder list. The Board’s Order did not deal with any other employees who crossed the picket line and the Order did not require the Union to modify the seniority dates of any persons other than the three charging parties in that case. In May 2000, C&S notified the Union that it was elevating all of the above named individuals to regular situation status effective on May 21, 2000. The company added them to the New Rochelle seniority list with a “steady date” of May 21, 2000. When they, along with other employee also promoted to regular situation status, were invited to the Union hall they were asked if they crossed a picket line and they admitted that they had. As a consequence, the Union while accepting the other employees into membership told these “strike breakers” that they would not be admitted to union membership. There- fore, as a result of the May 2000 promotions and the Board’s Decision and Order in 332 NLRB 870, Miles, Clark, and Val- entin were ultimately promoted to regular situation holders at C&S with seniority dates of May 4, 1998, instead of May 21, 2000. But Enrique Grados, Richard Atkins, and Djevalin Gojani who were not parties to the Board case, which did not require relief for any persons other than the charging parties, and who were also promoted by the Company to regular situa- tion status in May 2000 were given C&S seniority as of May 21, 2000. At a much later date when their seniority status be- came important, the Union refused requests to alter their senior- ity dates. On September 8, 2008, C&S held meetings with it drivers to announce that the company was going out of business. As noted above, this possibility was well known in the industry and the Union in anticipation of the closing was making efforts to keep open regular situation holder and Group 1 jobs at other employers to which the C&S employees might be hired. On November 20, 2008, the NMDU and the New York Times entered into a closure agreement to deal with the situa- tion once C&S terminated operations as of January 4, 2009. By the terms of this agreement, the Times consented to hire 65 C&S regular situation holders and place them at the bottom of the Times regular situation holder seniority list. The Times also agreed to pay a buyout worth $100,000 to regular situation holders of C&S who opted to not transfer to the Times and to leave the industry. The agreement provided that these choices applied only to regular situation holders employed by C&S and that they would make their selection in order of seniority. The agreement also provided that any remaining C&S regular situa- tion holders (and C&S Group 1 employees), who neither got 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the buyout nor the transfers would receive 8 weeks of sever- ance pay.17 In a letter attached to the closure agreement from Terry Hayes to Douglas Panattier Jr. it states: This confirms our understanding that the term “seniority,” when used in this Closing Agreement, refers to industry-wide priority. This definition of “seniority” is intended to apply on- ly to the Closing Agreement and is not to have any preceden- tial effect for either party in the future. As described in this letter, this means that seniority for the purpose of selecting the buyouts and/or the transfers would not be based on a regular situation holder’s seniority date with C&S but rather would be based on how long that individual had worked for companies having contracts with the union. Thus, under this system of determining seniority, a person with the lowest priority number would be the individual who became a regular situation holder or Group 1 employee with any union- signatory employer in the past. Moreover, as that would make the individual eligible for union membership, the industrywide priority number would essentially be equivalent to when that individual joined the Union pursuant to a union-security clause. In some cases, an individual’s C&S seniority date and his prior- ity date would be the same if the individual first started to work in the industry at C&S and stayed with C&S throughout his employment history. However, in other cases, the industrywide priority date would be lower than the C&S seniority date if an individual became a steady employee at another union- signatory employer prior to his employment at C&S. (Or a predecessor company taken over by C&S).18 In that case, the individual would have obtained a priority number and most likely a union membership number, at a date earlier than the date that he obtained his C&S seniority. In a form letter dated December 10, 2008, the Times notified the C&S regular situation holders and Group 1 employees of their options. It indicated that C&S would close effective on January 4, 2009 and it gives these employees until January 26, 2009, to make a selection. (The letter provided a form for elec- tion). The employees were notified that if someone chose a buyout and got it, he would not be eligible to be hired by the New York Times and vice versa. Also, if an employee accept- ed the buyout, he would lose all of his industrywide seniority which meant that he no longer could seek jobs at other union- signatory employers as a Group 2 extra. (This means that he effectively would be retired from the industry). During the period from November 2008 through January 2009, the Union prepared and transmitted to the Times several seniority lists for the C&S employees. The first listed the C&S 17 Exhs. A and B to the closing agreement shows that as December 31, 2008, C&S employed 362 regular situation holders plus 64 Group 1 extras. The record does not show how many other casual employees may have been employed by C&S during 2008, but that seems to be irrelevant to the issues in this case. 18 GC Exh. 46 is a list of regular situation holders and Group 1 employees who were employed by C&S as of September 2008. The list has 426 names. In addition, the exhibit shows the locations where the employee worked; their hire date with C&S; their seniority dates with C&S; and the hire date at any predecessor employer which had been purchased by C&S. employees by their union card numbers. This, however, was superseded by a second list dated November 19, 2008, that ranked the C&S employees by their industrywide seniority numbers. The lowest being the person with the most seniority. Another revised list was sent on November 18 and this was again revised by the Union on January 8, 2009. A final revi- sion was made on January 29, 2009, after the Times pressed the Union to make certain that it had an accurate list. On December 29, 2008, a meeting was held where the eligi- ble C&S employees gathered to make their choices. (Employ- ees could also mail in their choices if they chose not to attend this meeting). Ultimately, the C&S employees made their elections and these were presented to the New York Times. In February 2009, the Times began to distribute $100,000 checks to certain former C&S employees. Also, the Times hired a group of for- mer C&S employees. There is no question but that the use of industrywide priority numbers to select the buyouts or the transfers gave some C&S employees with less C&S seniority some degree of preference in terms of having their choices selected. In the case of the buyouts, the Times has set aside $600,000 representing pay- ments to six individuals because there is a question as to which six individuals should have had their buyout elections accepted. Although the General Counsel has not identified any specific individuals, other than Grados, Atkins, and Gojani who should have had their buy out elections accepted, it seems reasonable to assume that there were at least a total of six who were ad- versely affected by using industrywide priority numbers instead of using C&S seniority as the basis for the selection process. Further, even as to those people who elected to transfer to being regular situation holders at the Times, the use of indus- trywide priority number seniority as opposed to C&S seniority meant that when these 65 people were placed on the Times seniority list, their places on that seniority list were affected either favorably or adversely. And because seniority status among regular situation holders can make a difference in vari- ous terms and conditions of employment, the use of seniority based on time worked for all signatory employers gives a dis- tinct advantage versus those whose seniority is measured only by their employment with C&S. In the cases involving Grados, Atkins, and Gojani, it is pos- sible that if the seniority basis for the selection of the buyouts was changed from being based on seniority with union- signatory companies to seniority solely within C&S as of the time that they were promoted to regular situation holders (May 2000), that they would have had sufficient seniority to have had their picks for the $100,000 buyouts accepted. The General Counsel also posits an alternative theory on be- half of these three employees. As I understand the argument, the General Counsel assert that the Union should have altered their industrywide priority dates and that it breached its duty of fair representation in refusing to do so. In May 2000, Grados, Atkins, and Gojani were elevated to regular situation holder status at C&S’s New Rochelle facility along with other employees. When they were invited to the union hall, they were asked if they had ever crossed a union picket line and when they answered affirmatively, they were NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 271 told that they could not become union members. As I under- stand the situation, both their seniority date as a regular situa- tion holder with C&S and their union industrywide priority numbers would be based on this date as this is the date that they were promoted to being regular situation holders. It is true that there have been instances where employees at C&S have had their seniority dates with C&S corrected and there was an instance in 2001 when, pursuant to a settlement of a grievance, a group of nine drivers had their dates changed from June 2, 1998, to May 4, 1998. This included three drivers Dunn, Naclerio, and Antonaccio. But if their C&S seniority dates were changed from June 1998 to May 1998, they still would be ahead of Grados, Atkins, and Gojani, whose seniority dates at C&S were in May 2000. After their picks for the buyouts were rejected, Grados and Gojani complained to the Union and asserted that there were some (unnamed) drivers with less C&S seniority who had low- er industry priority numbers and therefore trumped them when they made their buyout bids. At one point Gojani complained that the Union had changed the priority number of Miles and the Union’s representative replied that Miles was a charging party in the previous Board case whose priority number had been changed as a result of that decision. Gojani was told that he was not a party to that case and that the Union was therefore not obligated to change his number. And this is, in my opinion, a correct interpretation of the Union’s obligation pursuant to the previous Board decision as it had not been alleged in that case that Gojani, Atkins, or Grados had been discriminatorily denied promotions to regular situation holder status at C&S in 1998. In my opinion, the General Counsel has not shown sufficient evidence that Grados, Atkins, or Gojani should have had their priority numbers changed to a number consistent with a date earlier than the date that they actually were promoted to regular situation holder status at C&S.19 Nor am I satisfied that there has been a dispositive showing in this current proceeding that any C&S drivers, promoted to regular situation holder status after Grados, Atkins, or Gojani at C&S, received lower (and therefore better), union industry priority numbers. At this stage of the proceeding, I cannot say that these three individuals would have been in a position to beat out any of the other C&S regular situation holders in vying for the buyouts. However, in the event that it is determined that the Union violated the Act by using industrywide priority numbers, instead of C&S senior- ity as the basis for making the buyout selections, then the Gen- eral Counsel could show at the compliance stage of the pro- ceeding that Grados, Atkins, and/or Gojani had better seniority status than other C&S employees who bid for and were selected to receive the buyouts.20 19 Maybe I am missing something, but I really don’t understand the General Counsel’s argument that the seniority status for these three individuals as regular situation holders at C&S should be changed to a date earlier than when they were actually promoted. 20 This could be demonstrated simply by seeing if any C&S drivers who had their buyout bids accepted, were made regular situation holders after the dates that Grados, Atkins, and Gojani were promoted to be regular situation holders. If that were the case, then the three alleged discriminates would each be entitled to the $500,000 buyouts. (d) Agency Fee and Beck Issues The General Counsel contends that the NMDU violated the Act by requiring certain employees to pay agency fees while denying them union membership and work opportunities. I don’t agree. The collective-bargaining agreements between the Union, the Post, C&S and most or all other signatory employees, re- quire employees in Group 3 or Group 4 status to pay agency fees to the Union as a condition of continued employment. General Counsel Exhibit 71 is an agency fee form that states that the fee amount per shift may not exceed 5 percent of the dues payable monthly by union members. That is, a person who works as a Group 3 or Group 4 extra, is required (after 30 days of employment), to only pay an amount for each shift that he actually works. The agency fee form further states: I further understand that this fee is for services provided and creates absolutely no rights or privileges of membership in the NMDU, nor any preference for or expectancy of membership. I note that apart from some trivial expenses used to reim- burse union officials who go to members’ funerals, there is no evidence that the Union uses union dues or agency fees for any purpose other than collective bargaining or contract administra- tion. In support of this contention, the General Counsel cites Bricklayers Local 1 (Denton’s Tuckpointing), 308 NLRB 350, 352–353 (1992). That case involved a situation where the Un- ion charged a work permit fee to nonmembers while at the same time refusing to refer them from its hiring hall. Not sur- prisingly, the Board concluded that a union which charges nonmember a fee for referrals but refuses to carry out its im- plied promise to refer them to jobs from its hiring hall, has violated the Act. As the Judge noted; The fee is not a service or referral fee since nonmembers are not referred. The fee, on this record, serves no purpose except to enrich the Union, to restrain nonmembers and to keep track of employers employing nonmembers. Indeed, the require- ment of nonmembers obtaining union clearance, in the form of a work permit, as a condition of gaining or retaining em- ployment, is merely part of closed-shop mechanics and vio- lated Section 8(b)(1)(A) and (2) of the Act.” The cited case is not really pertinent to the case at hand. The NMDU charges an agency fee which is based only on the days that an individual actually works. This is not a case where a fee is charged for an illusory promise of work. On the contrary, the fee is only charged when an individual nonmember actually works and gets paid. And in the case of the Post at least, the evidence was that individuals on the Group 3 list tended to work 5 days a week on a regular basis. Further, while not being allowed to become members, it cannot be said that people who obtain employment by virtue of their Group 3 or Group 4 status are not beneficiaries of the Union’s role in collective bargain- ing. Notwithstanding their nonmembership, these nonembers Complications could however, arise if only one or two other C&S drivers with less C&S seniority had their buyout bids accepted. 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD receive the same wage rates and the same contractual benefits as any other driver in the bargaining unit. 21 The General Counsel also alleges that the Union violated the Act by failing to provide Beck notices to the employees of the New York Post. Under Communication Workers of America v. Beck, 487 U.S. 735 (1988), the Supreme Court held that employees who choose to be nonmembers can only be required to pay an agen- cy fee in circumstances where a collective-bargaining agree- ment requires the payment of union dues. Moreover, the Court held that the amount required can only be equal to that portion of normal union dues that are used for collective-bargaining activities. Thereafter, in California Saw & Knife Works, 320 NLRB 224 (1995), the Board concluded that a union must notify all unit employees of their right to refrain from union membership before requiring nonmember employees to pay agency fees under a union-security contract. The Board required, inter alia, that unit employees be given sufficient information to enable an employee to decide whether to object to becoming a union member and to be apprised of any internal procedures for filing an objection. In Paperworkers Local 1033 (Weyerhaeuser Paper), 320 NLRB 349 (1995), the Board required that all employees (members and nonmembers alike), covered by union-security clauses must be given affirmative notice of their rights to object to union membership and their right to pay an agency fee. In this regard the Board stated: This notice requirement is satisfied by giving the unit em- ployee notice once and is not a continuing requirement. Thus, newly hired nonmembers must be given Beck and General Motors notice once—at the time the union first seeks to obli- gate them to pay dues. The same notice to members is like- wise required to be given once, if they have not previously re- ceived it. The form of such notice is not prescribed by the Board, moreover, and ‘‘the union meets [its] obligation as long as it has taken reasonable steps’’ to notify employees of their Beck rights before they become subject to obligations under the union-security clause. California Saw & Knife, su- pra, slip op. at 10. The same holds true of their General Mo- tors rights. In the present case, the only evidence that the Union gave any notice to any members or unit employees was a one time notice in the Union’s in house bulletin that was published in 2003. Notwithstanding a subpoena issued by the General Counsel, the Union did not produce, other than the 2003 bulle- tin any documents that would show that any other notices were ever issued to employees covered by the union-security clause. Nor was there any testimonial evidence to show that as a mat- ter of course or standard operating procedure, employees at the Post were told of their Beck/General Motors rights before they become subject to the obligations of the contractual union- security provisions. 21 There is no contention by the General Counsel that the agency fees are excessive or greater on a prorated basis than union member- ship dues. Having established that the only notice given to employees was the one issued in a union publication in 2003, it is my opin- ion that this simply is not enough. Therefore I shall conclude that in this respect the Union violated Section 8(b)(1)(A) of the Act. (e) Daniel Altieri The record shows that Daniel Altieri, in January 20009, quit his job at C&S to went to work at El Diario. As of July 2010, he was $1445 in arrears on his union dues. In a letter dated August 10, 2010, the Union wrote to him as follows: In accordance with Article XIV, Section 5, you are expelled from the [NMDU] because you are 6 months or more in ar- rears in union dues. As a result of being an expelled member, you can lose all claims to employment at your employer or at any employer that is governed by a collective bargaining agreement between the NMDU and those employers. Clearly the Union could expel Altieri for his failure to pay union dues. That, however, is not the issue here. While at C&S, Altieri chose to be a member of the Union and pursuant to the contract’s union-security clause, he was required to pay the periodic dues that are ordinarily required of membership. And if he remained employed at C&S or its suc- cessor, the New York Times, he could have been terminated from employment if he continued to not pay union dues after being properly notified of that obligation. But Altieri at the time he received this notice, was not an employee of C&S/New York Times and was employed at El Diaro. Therefore, the fact that he was in arrears at his former employer cannot, under Board law, be used to preclude his employment at another employer covered by a contract in a separate bargaining unit. Iron Workers Local 118 (Pittsburg Des Moines Steel Co.), 257 NLRB 564, 566 (1981), enfd. 720 F.2d 1031(9th Cir. 1983). In that case the Board stated: Thus, it is well settled that a union lawfully may seek the dis- charge of an employee whose dues are in arrears if it has a valid union-security clause in its collective-bargaining agree- ment with the employer. The Radio Officers’ Union of the Commercial Telegraphers Union, AFL. (Bull Steamship Co.) v. N.L.R.B., 347 U.S. 17, 40-41 (1954). Furthermore, a valid union-security clause can be enforced at the hiring hall level by a refusal to refer an employee whose dues are in arrears, so long as the employee has already worked for the statutory grace period in the bargaining unit to which the collective- bargaining agreement containing the union-security clause applies. Mayfair Coat & Suit Co., 140 NLRB 1333 (1963). However, the Board has held that a member who has become delinquent in dues under a contract covering one bargaining unit cannot be denied employment under a contract covering a separate bargaining unit without affording him the statutory grace period in which to become current in his or her dues. Therefore, it is my opinion that the August 2010 notice is- sued to Altieri was too broad and exceeded (probably inadvert- ently), what was permitted under the statute. I therefore shall conclude that in this respect, the Union violated Section 8(b)(1)(A) of the Act. NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 273 (f) Analysis I can recall a time in the 1950s when my father brought home three newspapers every day; the New York Post, the World Telegram, and Sun, and the Herald Tribune. Of these, only the Post continues to exist and its existence, for a time, hung by a thread. I will take notice that the newspaper industry in New York has been in a continual decline with fewer and fewer papers being published and delivered. This trend, no doubt has been accelerated with the advent of the Internet. All of the significant allegations in these cases arise from the fact that in late 2009, a big employer of NMDU represented drivers was about to go out of business and the Union found itself in the unfortunate position of trying to either (a) obtain substantial severance packages for at least some of these em- ployees or (b) jobs elsewhere for those individuals who wanted to continue being employed. This was, no doubt, a difficult circumstance for the employees, the employers and the Union. And in my opinion, the Union was trying to do its best in a bad situation to mitigate the damage that C&S’s closing would cause to a great many employees. The question here is not whether the Union acted with good or malicious intent; but rather in dealing with this difficult cir- cumstance, whether it acted and made agreements with the respective employers within the limits allowed by the National Labor Relations Act. In setting up a preference system to deal with the C&S clos- ing, the Union decided to use seniority as the basis upon which employees would be able to make choices. The Union con- tends that the seniority system it chose to utilize was not in any way based on union membership, but rather based on the amount of time that an employee spent working in the industry. This would be represented, according to the Union, by an in- dustrywide priority number where the lower the number, the better one’s seniority preference. The problem is that the defi- nition that the Union has used is one based on when an individ- ual started working as a regular situation holder or Group 1 extra at any employer, within the New York Metropolitan area, having a contractual agreement with the NMDU. That is, the seniority system that the Union chose and that was acceded to by the Post and the Times, was one based on the amount of time that an employee worked for union-signatory shops and not one that measured seniority by the amount of time that the employee worked with either C&S or the New York Post. Moreover, while the Post at one time may have been a mem- ber of the Publisher’s Association and the companies acquired by C&S may have been members of the Suburban Wholesaler’s Association, there never was any multiemployer bargaining unit that covered all NMDU represented drivers throughout the greater New York metropolitan area. And at the time that the most recent collective-bargaining agreements were made and when the seniority preferences were implemented in 2009 and 2010, neither C&S, the New York Times, nor the Post were part of any multiemployer bargaining unit. Section 8(b)(1)(A) and 8(b)(2) states: It shall be an unfair labor practice for a labor organization or its agents-- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7, Provided; That this para- graph shall not impair the right of a labor organization to pre- scribe its own rules with respect to the acquisition or reten- tion of membership therein; or (B) an employer in the selec- tion of his representatives for the purposes of collective bar- gaining or the adjustment of grievances; (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection [8 (a) (3)] or to discriminate against an employee with respect to whom membership in such organization has been denied or termi- nated on some ground other than his failure to tender the peri- odic dues and the initiation fees uniformly required as a con- dition of acquiring or retaining membership. Section 7 of the Act gives employees the rights to join, assist or support labor organizations or to engage in concerted activity for their mutual aid or protection. This provision also gives employees the right to refrain from such activities or from be- ing union members. Section 8(a)(3) makes it unlawful for an employer, except to the extent that there exists a lawful union-security clause re- quiring membership after 30 days of employment, to discrimi- nate, in regard to hire or tenure of employment or any term or condition of employment in order to encourage or discourage membership in any labor organization.22 Thus, although loyalty is a trait much admired, this is trumped where the provisions of the National Labor Relations Act, impose constraints against favoring union members over nonmembers. Whiting Milk Corp., 145 NLRB 1035 (1964), represents an early Board case involving a situation somewhat analogous to the present cases. And the basic rule of law as espoused by the Board’s in these types of cases has continued to the present, even though the Board’s decision was not enforced by the First Circuit Court of Appeals. NLRB v. Whiting Milk Corp., 342 F.2d 8 (1st Cir. 1965). In Whiting, an employer and a union had a collective- bargaining agreement through a multiemployer bargaining association that contained a clause that provided that if any employer acquired or merged with “another Union Company,” the preexisting seniority of the employees of the acquired com- pany shall be preserved and integrated with the seniority of the employees of the acquiring company. In that case, Whiting acquired another company called White Milk Company that had five facilities. At four, the employees had been represented by the Union and at the fifth, the employees were unrepresent- ed. In conformity with the contractual provision, the former 22 In NLRB v. General Motors Corp., 373 U.S. 734 (1963), the Su- preme Court held that notwithstanding the existence of a valid union- security clause, an employee could not be required to become an ac- tual member of a labor organization, albeit he or she could be re- quired to pay reasonable fees. The Court held that it was sufficient for employees to become “financial core” members without requiring them to become actual union members. In so holding, the Court did not require contracts containing union -security clauses written in ac- cordance with the statutory language of 8(a)(3) to be rewritten. It was only later that the Board required unions to notify employees of their right to refrain from becoming union members. California Saw & Knife Works supra. 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees at the four represented plants were accorded pre- ferred seniority status over those at the unrepresented plant. The employees in the first group were treated as carrying their seniority over to Whiting. The other employees were treated for seniority purposes as if they were newly hired employees. For some time after the merger, the seniority situation did not affect the charging parties who had been employed at the un- represented facility and who had been placed at the bottom of the seniority list. Nevertheless when a layoff came about, the charging parties were laid off and their selection for layoff was governed by the contractual provision that had been previously been implement and that had caused them to be at bottom end of seniority. In finding a violation, the Board stated: But for clause 81, which requiring Whiting to place their names at the bottom of the companywide seniority list and thereafter to maintain their inferior status on that list, they would not have been laid off at all. That their selection for layoff was substantially related to their earlier lack of mem- bership in the Union was reaffirmed by Whiting at the time of such action. As found by the Trial Examiner, the Hyannis plant manager, when laying off Walsh and O’Neil made statements to the effect that their replacements had been in the Union longer than they had and that if Walsh and O’Neil had joined the union while working for White, they could not have been selected for layoff. Also relevant to the present case, I note that the Board in Whiting rejected a claim that the statute of limitations in Sec- tion 10(b) of the Act should run from the date that the seniority status was first established (pursuant to clause 81) and not from the date that the two employees were laid off. In this regard, the Board stated: Respondents contend that Section 10(b) operates as a bar to any violation finding as to these layoffs because Walsh and O’Neil were first subjected to the terms of the discriminatory seniority provision though not to the actual operation thereof which effectively disrupted their employment tenure--when they were first placed on this discriminatory seniority roster more than 6 months prior to the filing of charges giving rise to this proceeding. We reject that contention. The seniority roster on which Walsh and O’Neil were placed prior to the 10 (b) period was dependent upon, and had no durability or binding force of its own apart from the contractual provision which required it . The Charging Parties’ continued discriminatory retention on the seniority roster, which otherwise might have been corrected, was compelled by the uninterrupted mainte- nance of the illegal contract term within the 10(b) period. The selection for layoff of Walsh and O’Neil also within the 10(b) period thus resulted from the enforcement of the unlawfully maintained seniority provision. Our finding of a violation need not, and does not, depend on a subsidiary finding that Respondents engaged in a time-barred unfair labor practice. Wholly apart from any such earlier unfair labor practice, it is sufficient to spell out a violation here that the layoffs of Walsh and O’Neil were directly attributable to the application within the 10(b) period of an unlawfully main- tained discriminatory contract provision. Here, as in the closely parallel Potlatch Forest case, which was cited with apparent approval by the Supreme Court in the Bryan Manufacturing case and which we regard as square authority for the holding we make, Respondents’ conduct during the barred period has been considered merely for the purpose of bringing into clearer focus the current conduct which, even without reliance on any earlier unfair labor practice, supports a finding of statutory violation in the layoffs. (citations omitted).23 Not only is preference based on union membership vs. non- membership unlawful, but preferences granted on the basis of any membership considerations would violate the Act. For example, in Reading Anthracite Co. (United Mineworkers of America, Local 807), 326 NLRB 1370 (1998), a Local 7226 was merged into a Local 807 for a single unit and the surviving union (Local 807), caused the employer to assign all the former Local 7226 members seniority dates that reflected the day they joined Local 807 and not the dates that they began work at the mine. The Board stated: Local 807 and District 2 violated the Ac . . . . It is unlawful to use “membership” considerations, e.g., date of local member- ship, to determine conditions of employment. Such conduct violates Section 8(b)(2) by discriminatorily encouraging membership in that local. In IATSE, Local 659, 197 NLRB 1187 (1972), the Board dealt with a contractual hiring system whereby certain employ- ees who were placed on a roster received hiring preference by virtue of the amount of time that they had worked at union- signatory employers. In determining whether an employee was eligible to be placed on the roster, his work experience with employers other than those who signed one of the aforemen- tioned collective-bargaining agreements was not considered. Therefore, under this arrangement, qualifying experience was generally limited to experience with employers having a collec- tive-bargaining agreement with the Respondent and/or IATSE. The Board stated: There can be no doubt that the actions of Respondent in ap- plying the roster restrained and coerced employees in the ex- ercise of rights guaranteed in Section 7 of the Act. In part, Section 7 gives employees the right to bargain collectively through representatives of their own choosing, or to refrain therefrom, subject of course to majority rule. Respondent’s actions penalize employees for having exercised their statuto- ry right to refrain from bargaining collectively through Re- spondent in the past, while rewarding those employees who have chosen to work in units represented by Respondent. Respondent contends that the roster provisions, as interpreted and applied, are lawful because the employers, both the Inde- pendents and members of the Association, in effect, formed a multiemployer bargaining unit for seniority purposes. Respondent further contends, however, that even if a mul- tiemployer bargaining unit does not exist, there is still no vio- 23 In Teamsters Local Union 896 (Anheuser-Busch), 296 NLRB 1025 (1989), the Board rejected a similar argument based on Sec. 10(b). See also District 17, United Mine Workers of America, 315 NLRB 1052 (1994). NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 275 lation of the Act since the seniority provisions are unrelated to union considerations and merely protect the so-called “integri- ty of the bargaining unit.” We find this contention to be with- out merit. It is well settled that a bargaining representative for the em- ployees of a particular unit has the right to make seniority de- pend on the date of hire in the unit and thus to give an inferior seniority ranking to employees transferred from another unit. General Drivers and Helpers Local Union 229, Teamsters (Associated, Transport, Inc.), 185 NLRB No. 84. We have heretofore concluded that each Independent employer com- prised a separate bargaining unit. We are not faced here with a situation where new employees are being placed at the bottom of a unit seniority list. On the contrary, this case presents a situation wherein Respondent prevents an applicant from ob- taining initial employment unless he has had prior employ- ment at which he was represented by the Union. The question here is not what seniority rights an employee acquires after working in a unit represented by Respondent, but what rights the applicant has to start with when he seeks employment with an employer who is party to a collective-bargaining agreement with Respondent and/or IATSE. Respondent ad- mits that if an employee had acquired seniority rights under a collective-bargaining contract to which Respondent and/or IATSE is a party, those rights will be honored where the em- ployee seeks employment in an entirely separate unit which is also represented by Respondent. On the other hand, an em- ployee cannot commence work in a unit represented by Re- spondent unless he has previously worked in a unit covered by a collective-bargaining contract to which Respondent and/or IATSE is a party. Since the existence of a collective- bargaining contract connotes representation by a labor organi- zation, the deprivation of employment with employers who are parties to collective-bargaining contracts with Respondent and/or IATSE flows from the failure of an employee to have been previously represented by Respondent. The above illustrates that initial employment in a unit repre- sented by Respondent is based strictly on union considera- tions. No matter what qualifications an employee brings with him, if he has not in the past been represented by Respondent, he cannot gain employment with any employer who is party to a collective-bargaining agreement with Respondent and/or IATSE. Accordingly, we conclude that Respondent, by apply- ing the seniority provisions against any Association or Inde- pendent employer as if all such employers comprise a single bargaining unit, and in particular by the manner in which Re- spondent has applied the roster provisions with respect to Colman and Lapenieks, has unlawfully restrained and coerced employees in the exercise of their statutory rights and thereby violated Section 8(b)(1)(A) of the Act.24 24 See also Directors Guild of America Inc., 198 NLRB 707 (1972), and Painters Union, Local 77 (Colorite Inc.), 222 NLRB 607 (1976). The latter case deals with the unlawful granting of prefer- ences in hiring hall referrals to employees who have worked for un- ion-signatory employers as opposed to employees who did not. The Board stated: ‘Thus it is clear that the preference in employment is In Seafarers International Union, 244 NLRB 641, the Union operated a hiring hall pursuant to a contract with various signa- tory employers pursuant to which job applicants were sorted into groups A, B, and C and where priority was based on work experience for signatory employers for a minimum of 90 days for 2 consecutive years. In finding a violation, the Board stated: Contrary to the Administrative Law Judge, we find that the General Counsel has established a prima facie case that Re- spondent’s implementation of its hiring hall referral system, in strict adherence to the seniority preferences and in tandem with the union security requirements upon signatory employ- ers, unlawfully favors jobseekers who are union members over nonmembers and also requires signatory employers to discriminate with respect to hiring. The General Counsel’s case is strongly supported by the testimony of Worley, Re- spondent’s own witness with respect to the referral practices of the parties which shows that membership is not only en- couraged but actively suggested, if not required, in the form of the request of individuals seeking to upgrade seniority ratings to make application for membership at that time. We do not agree with the Administrative Law Judge that spe- cific examples of discrimination are required for the finding of a violation herein. Nor do we fault the General Counsel for failing to foreclose the theoretical possibility that nonmem- bers could obtain sufficient work experience with signatory employers to qualify, for example, for B seniority ratings without having to join the Union under the applicable union- security provisions. For the burden of negating the General Counsel’s prima facie case of discrimination in hiring refer- rals falls on Respondent as the sole custodian of the hiring hall records. Its failure to do so creates an adverse inference that such evidence in its possession is not favorable to Respond- ent’s case. Finally, we disagree with the Administrative Law Judge’s blanket acceptance of Respondent’s business justification de- fense and his conclusion that such valid business criteria ren- der the referral procedures lawful. Assuming, arguendo, that the evidence proves a genuine necessity for requiring experi- enced workers relating to reasons of safety, Respondent has failed to adduce any evidence to distinguish between the work experience acquired with signatory employers in contrast to other employers, or to show how experience with the former meets the legitimate requirements while the latter does not, or even whether the factor of work experience has any valid bearing upon referral seniority. There are exceptions of course. If a Respondent can show that the contractually based seniority system is ambiguous and therefore not facially invalid and/or if there are legitimate rea- sons for establishing a preference based at least in part, on em- ployment with other union-signatory employers, then the Board not based on length of service with a particular employer or within a multiemployer bargaining unit, but rather on considerations of prior union representation. Such a preference is violative of Section 8(b)(1)(A) and (2) of the Act.” 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD may conclude that there is no violation. For example in Team- sters Local Union 896 (Anheuser-Busch), 296 NLRB 1025 (1989), the issue was whether the Teamsters violated Section 8(b)(1)(A) and (2) by invoking a provision of its contract with Anheuser-Busch giving permanent employees laid off by other employers who have contracts with the Respondent, a preferen- tial seniority right to work for Anheuser-Busch instead of tem- porary employees whose job seniority with that Employer would otherwise have entitled them to work. The Board stated: For the reasons set forth below, we find that the stipulated record does not establish that the contractual seniority bump- ing preference, on its face or as applied, violates Section 8(b)(1)(A) and (2) of the Act. First, there is no evidence that the continuation of the preference in the more than 15 years since Anheuser-Busch withdrew from the multiemployer bar- gaining unit has actually resulted in any discrimination against any employee or hiring hall applicant on the basis of nonun- ion or non-unit status. In the absence of such evidence, it can- not be presumed from the contractual language itself, which is amenable to a lawful interpretation that the Respondent would act unlawfully by refusing to dispatch as a permanent em- ployee “bumping” an individual claiming credit for employ- ment with a California brewer, such as Anchor Steam, whose employees are not represented by the Union. Second, the cir- cumstances and the background of this case present an unusu- al justification for the bumping practice in that the preference is but one of three seniority-based contractual vestiges of the multiemployer relationship voluntarily continued by An- heuser-Busch and other surviving employer-members after their withdrawal from the formal multiemployer unit. The contractual bumping preference clearly does not discriminate on the basis of union membership. It does entail a credit for work experience with employers having a contract with the Respondent, but the preference challenged here differs signif- icantly to signatory employment found unlawful by the Board in cases cited by the General Counsel and the Charging Party. These critical differences relate specifically to the statutory is- sues of whether there is discrimination in the preference that expressly relates to union considerations and if so whether and to what extent it is discrimination that encourages union representation. Here, in contrast to the cited cases, the permanent employee bumping right does not prevent a job applicant “from obtain- ing initial employment unless he has had prior employment at which he was represented by the Union,” does not create a general referral class preference based exclusively on work experience under union-signatory and union security condi- tions, does not preclude anyone from achieving permanent employee status, and does not permit one permanent employ- ee to bump another permanent employee on the basis of prior non-unit experience. Thus, the contract provision at issue is arguably skill based. Furthermore, the bumping right cannot be secured or avoided merely by joining the Union or by working for employers who have contracts with the Union. Rather, individuals claiming the right must also have worked a specific length of time to attain permanent employee status and thereafter have been laid off by a signatory employer. Fi- nally, the language of section 4(a)(1) of the contract ambigu- ously defines a permanent employee as one who has worked 45 weeks “under this Agreement in one classification in one calendar year as an employee of the brewing industry in this State.” The italicized phrase is capable of an interpretation, in the absence of actual practice to the contrary and in light of the nondiscrimination clause in the contract that the parties may give credit towards permanent employee status to work performed for non-signatory California brewers.” Admittedly, the provision’s limiting of the bumping right to permanent employees who have been laid off by signatory employers appears to discriminate on its face against brewery workers whose last employer did not have a contract with the Union, but it also discriminates against permanent employees who left their prior employment with a signatory employer for reasons other than layoff. To the extent that the union- signatory layoff requirement discriminates on the basis of un- ion considerations, it is highly speculative to suggest that such discrimination would encourage brewery workers to restrict their work experience to union signatories. In any event, as further discussed below, multiemployer considerations carry- ing over from the defunct multiemployer unit fully justify this incidental, potentially discriminatory feature. Thus, the chal- lenged seniority preference is capable of an interpretation that it is a lawful seniority-based contractual right. (Footnotes omitted). In my opinion the facts in the Anheuser-Busch case and the Board’s rationale is distinguishable from the present cases. First, there is no ambiguity that the seniority system utilized in the various circumstances herein was based on an individual’s length of employment for another employer having a collective bargaining agreement with the NMDU. There is no ambiguity here. The intent clearly was not to give seniority credit to em- ployees who were employed as drivers for companies that were not signatories to a contract with the NMDU; either inside or outside of the newspaper industry. Second, there is no evi- dence to suggest that the preferences granted in the present case were in any way skill based or required by virtue of safety rea- sons. Thirdly, as neither C&S, the New York Times, nor the New York Post were every members of any overall single mul- tiemployer bargaining unit (and have not been part of any multibargaining units for many years), there is, in my opinion, no basis for any claim that a seniority system based on em- ployment at other NMDU signatory employers was a justifiable “vestige” from a previous multiemployer contract. And finally, there is no doubt (as there was in Anheuser Busch), that a num- ber of employees in the present cases suffered actual as op- posed to theoretical discrimination. In the present cases, the use of seniority based on employment at other employers hav- ing NMDU contracts has tangibly and adversely affected iden- tifiable groups of employees at the New York Post and em- ployees at C&S/New York Times. The Respondent places a good deal of emphasis on a case involving the New York Typographical Union, a case where the Board found that the Union violated the Act, but the Second Circuit Court of Appeals did not. In New York Typographical Union No. 6, 242 NLRB 378 NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 277 (1979), the Union had collective-bargaining agreement with a large number of companies, many of which were through a contract with a multiemployer association. It also had contracts with other shops which, although not members of the associa- tion, had agreed to bound to the terms of the association-wide contract. The charging parties were job applicants to a compa- ny that was not a member of the association and they contended that the hiring hall provisions of the collective-bargaining agreement gave priority in hiring to any employees who were either employed by or laid off by union-signatory employers. The Board concluded that the independent employers were not part of a multiemployer bargaining agreement and that the con- tractual provisions as applied to independent employers violat- ed Section 8(b)(1)(A) & (2). The Board stated: Inasmuch as League members and Independent employers are not part of a single multiemployer unit, the preference in question is not based upon the seniority or work experience acquired by an employee in a single bargaining unit. Rather, it is based upon an employee’s employment in a shop under contract with the Union. Therefore, it directly related to membership in the Union. Such a provision discriminates in favor of union members over nonmembers and, consequently, restrains and coerces employees in the exercise of their Sec- tion 7 rights. In NLRB v. New York Typographical Union No. 6, 632 F.2d 171 (2d Cir. 1980), the court started out by disagreeing with the Board’s finding that the employers involved were not part of a single multiemployer bargaining unit. Nevertheless, the court stated that its reason for reversing the Board was not limited to that finding. Notwithstanding the ALJ’s conclusion that the contract provision establishing a Class A group that favored only union members over nonmembers, the court noted that at least one person (out of 3700), in the “favored” category was not a union member and that the criteria for placement in this category allowed at least some nonunion employees to be treat- ed equally with employees in union shops. Since the persons in the favored category were almost all union members and were given preference over job applicants who were not members, I must say that I am somewhat confused by the court’s analysis. I do note, however, that the court may have concluded that irrespective of the contract’s granting of preference to employ- ees who worked in union-signatory shops, there nevertheless, were other legitimate and compelling reasons to allow this type of discrimination. The court noted that the Union had been confronted with problems resulting from mechanization in the printing industry and the decrease in the number of skilled jobs. The court noting the history of the industry and the declining role of skilled typographical work stated: The principal thrust of the agreement was to open the doors of book and job shops to automation through use of “any and all computers,” to provide for the training of employees in the skills needed to operate such equipment, and to require the payment of guaranteed income to certain unemployed or un- deremployed employees from a fund established by the em- ployers. In light of the income guarantees, exclusive hiring hall procedures were instituted and supervised by the fund’s trustees to give highest priority in job referrals to employees who were eligible for guaranteed income payments. Thus, as a preference may be permissible because of safety or skill considerations, the court in the cited case seems to have been reasonably concerned with the continuing financial viabil- ity of the fund established to ease the path for employees to exit the industry because of the automation that was making many of their jobs obsolete. I also note that because the NLRB is required to interpret a federal law consistently throughout the United States in the geographic areas covered by all the circuit courts, I am bound by the decisions of the Board and not by a single reviewing court of appeals. The Respondent also cites Interstate Bakeries Corp., 357 NLRB 15 (2011). In that case, the Union represented sales representatives in two separate units having separate contracts. In 2005, the Employer decided to consolidate the routes and an agreement was made with the Union to have the units merged. They also agreed that the employees who worked at Dolly Madison (where the charging party was employed) would be dovetailed according to unit seniority with the employees work- ing at Wonder Bread. When it was discovered that the Charg- ing Party had never been in either unit, the company and the Union agreed that he should be included in the merged unit and although he had the most company seniority, he was placed at the bottom of the newly created seniority list covering employ- ees in the merged unit. Thereafter, he was told that when a route was going to be eliminated, the company and union were going to use “union seniority” to bump him out of his own route. Ultimately this caused the charging party to lose his position at the plant where he worked and required him to commute to another plant 70 miles away. Disagreeing with the ALJ’s decision to dismiss the complaint, the Board concluded that “in the context of a unit merger, a union and an employer are not lawfully permitted to discriminate against all or, as in this case, some of the merged employees on the basis of their previously unrepresented status.” The Board, reiterating much of what has already been described as the law, stated: The Board has drawn a clear distinction between discrimina- tion based on unit seniority and that based on union seniority. A union and an employer do not discriminate in a manner prohibited by the Act by contracting to vest certain employ- ment rights based on seniority in a represented unit. Nor do the parties to a collective bargaining agreement engage in un- lawful discrimination by placing a single employee or a group of employees hired or merged into the unit at the end of the seniority list on the grounds that they lacked seniority in the unit. “It is settled,” the Board has held, “that a bargaining rep- resentative for the employees of a particular unit has the right to give an inferior seniority ranking to employees transferred from another unit.” General Drivers and Helpers Local 229 (Associated Transport, Inc.), 185 NLRB 631, 631 (1970). In short, “a union may lawfully insist on the endtailing of new bargaining unit employees’ seniority when it is based on unit rather than union considerations.” Riser Foods, supra, 309 NLRB at 636. What is unlawful under the Act is for such parties to place employees at the end of the seniority list because they were 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unrepresented by a particular union or any union in their prior employment. That is the form of discrimination which was at issue in Whiting Milk. In that case, the contract provided for the dovetailing of seniority in the event of merger with “an- other Union Company.” Id., 145 NLRB at 1036. The Board found that “[t]he term ‘Union Company’ is construed by the parties as meaning an employer whose employees have been represented by the Respondent Union.” Id. Thus, the Board found that the selection of employees for layoff based on end- tailed seniority “was substantially related to their earlier lack of membership in the Union.” Id. at 1037. The same is true in other cases in which the Board found endtailing unlawful. See Woodlawn Farm Dairy Co., 162 NLRB 48, 50 (1966) (“This sentence [of the contract], on its face, affords preferential treatment to employees of new branches or plants who are Local 869 members and discriminates against those who are not.”); Teamsters Local 435 (Super Valu, Inc.), 317 NLRB 617, 617 fn. 3 (1995) (“the unions advocated granting less seniority to one of the employee groups on the impermissible basis that the employees in that group had not been represent- ed by a union as long as the employees in the other group.”); Teamsters Local 480 (Hilton D. Wall), 167 NLRB 920, 920 fn. 1 (1967) (agreement provided that Wall would be placed on the bottom of the seniority list “because employees of Cookeville Motor Lines had not been represented by a labor organization”). Frankly, I do not see how the Board’s decision in Interstate Bakery affords much comfort to the Respondent’s position in the present case. If anything it seems to affirm the legal propo- sitions of the General Counsel. It is my conclusion that the agreements made between the NMDU, the Post, C&S, and the New York Times, to the extent that they have been implemented (and continue to be imple- mented), within the 10(b) statute of limitations period, have afforded preferences to individuals based on union seniority instead of unit seniority and have caused actual discrimination against employees at these employers who, although covered by the collective-bargaining agreements, were not permitted to become members of the NMDU. CONCLUSIONS OF LAW 1. The collective-bargaining units involving employees rep- resented by the NMDU at the New York Post, City and Subur- ban, and the New York Times have at all times material herein been separate collective-bargaining units. 2. In my opinion, the hiring provisions of the collective- bargaining agreement between the NMDU and the New York Post, which gives a preference to Group 2 people is illegal as it confers a preference based on an individual’s length of em- ployment with companies having agreements with the Union other than the Post. As the Post is not and has not been for many years, a member of any multiemployer bargaining unit, the Group 2 preference, is based on union and not unit seniori- ty. Accordingly, it discriminates against employees who are not members of the NMDU and is therefore violative of Section 8(b)(1)(A) and (2) of the Act. 3. On July 9, 2008, the New York Post wrote to the Union and requested that the Post’s Group 1 list be opened up so that vacancies could be filled. On July 10, 2008, the Union refused to open up the Post’s Group 1 list thereby denying promotions to some of the New York Post’s Group 3 nonunion employees. In my opinion, the Union’s reason for refusing to open the Group 1 list was to require the Post, pursuant to its contract with the Post, to give preference in hiring and seniority when hired, to employees from the soon to be closed C&S, almost all of whom were union members. In this regard, I conclude that the Union thereby violated Section 8(b)(1)(A) & (2) by causing the Post to refuse to promote certain of its own employees be- cause of their nonmembership in the Union. 4. In January 2009, the New York Post and the Union agreed that the Post would employ about 50 employees who were being laid off as a result of the closing of C&S, an em- ployer having a contract with the NMDU. That agreement and its implementation provided that the Post would hire these for- mer C&S employees and place them on the Post’s Group 1 seniority list with their position on the list based on the length of their employment at union-signatory employers other than the New York Post. As a result, these individuals were, by agreement between the Post and the NMDU, granted greater seniority at the Post than other employees of the Post who had more unit seniority at the Post. This agreement therefore dis- criminated in favor of individuals who were, in almost all cas- es, union members and discriminated against employees of the Post who were on the Post’s Group 3 list and who were not members of the NMDU. I therefore conclude that in this re- spect, the Union violated Section 8(b)(1)(A) & (2) of the Act. 5. The NMDU and the New York Times entered into an agreement whereby (a) the Times agreed to make payments of $100,000 to 140 employees of C&S who agreed to retire from the industry and (b) the Times agreed to hire 65 C&S employ- ees and place them on its own payroll. (As noted above, the New York Post agreed to hire about 50 C&S employees and I believe that other union-signatory companies also chipped in). In devising a procedure whereby the C&S employees could make a choice as to whether to take the buyout or take a new job, the NMDU utilized a system of seniority that was based on the total length of time that a C&S employee worked for union- signatory companies instead of how long they had worked at C&S or a company that had been directly acquired by C&S. This system was acceded to by the New York Times and the result was that employees of C&S who had more seniority based on their length of employment at union-signatory em- ployers other than C&S, obtained a preference in the bidding process over employees who had greater seniority at C&S. As C&S, itself, has never been part of any multiemployer bargain- ing group, the seniority system chosen by the NMDU for the bidding was not based on unit seniority but rather based on seniority with union-signatory companies outside of the C&S bargaining unit. As a result, the evidence shows that at least 6 individuals who were employed by C&S may have had their buyout bids denied despite having greater unit seniority than other C&S employees whose buyout bids were accepted. The individuals that were discriminated against may have included Grados, Atkins, and Gojani. However, this is not certain at this stage of the proceeding and only a revision of the bid seniority list based solely on C&S seniority will reveal the names of NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 279 these people whose bids for buyouts were rejected but should have been selected for the buyouts but for the improper use of union-signatory seniority rather than C&S seniority. This can be determined, if necessary in any compliance proceeding. In any event, I conclude that in this respect, the Union violated Section 8(b)(1)(A) and (2) of the Act. 6. The evidence shows that pursuant to agreement between the New York Times and the NMDU, the Times agreed to hire a group of former C&S employees, whose bids for job transfers were accepted in accordance with the foregoing bid process. These employees were endtailed at the Times and given sen- iority status as of their date of hire by the Times. However, within the group of new hires, seniority between them was made on the basis of the amount of time they worked in NMDU signatory shops and not on the basis of their C&S seniority. In my opinion, this arrangement and its implementation is a viola- tion of Section 8(b)(1)(A) and (2) of the Act. 7. The General Counsel contends that the Union violated the Act by requiring employees to pay an agency fee while at the same time denying them union membership and work opportu- nities. As previously described, it is my conclusion that this allegation is without merit and should be dismissed. 8. The evidence establishes that the only notice that the Un- ion ever gave to employees of the New York Post of their rights to refrain from becoming union members (despite the existence of a union-security provision, requiring membership), was con- tained in a union bulletin in 2003. As I have concluded that this did not meet the notice requirements set forth in Paper- workers Local 1033 (Weyerhaeuser Paper), 320 NLRB 349 (1995), I find that that in this respect, the Union has violated Section 8(b)(1)(A) of the Act. 9. In my opinion, the Union by its August 10, 2010 letter to Daniel Altieri was violative of Section 8(b)(1)(A). This is be- cause the threat to bar him from employment at employers other than his last employer where he was in dues arrears went beyond what was permissible under the Act. 10. The unfair labor practices found to have been committed in these cases affect commerce within the meaning of Section 2(6) and (7) of the Act. THE 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. I note here that these cases deal with the enforcement of agreements made between the Union and employers who are not parties to these cases. Therefore, any remedy has to take into account the fact that no order can be issued against the employers. It is recommended that the Respondent be ordered to cease and desist from giving effect to or enforcing any collective- bargaining agreements or any other agreements that it has or had with City and Suburban, the New York Post, or the New York Times which in any way gives preferences to one group of employees over another group of employees based either on their length of time as union members or on the amount of time that they have been employed by companies having contracts with the NMDU other than the companies by whom they are employed. Among other things, this means that the Union should be ordered to refrain from enforcing or implementing the Group 2 preference in its collective-bargaining agreement with the New York Post.25 It is recommended that with respect to the New York Post’s regular situation holder and Group 1 lists, that the Union re- quest from the employer that the Adjustment Board approve a revision of those lists so that former employees of City and Suburban who were hired by the Post be given seniority stand- ing only from the time that they began their employment at the Post and further revise the lists so that other New York Post employees who have worked longer at the Post be given higher seniority status either as regular situation holders or as Group 1 extras. To the extent that any New York Post employees have suf- fered any loss of earnings because of the fact that they were disadvantaged by a granting of greater seniority status to former C&S employees, make them whole, with interest, for any loss of earnings or benefits. It is recommended that when any employees at the New York Post or the New York Times becomes eligible for union membership by virtue of being placed on a Group 1 list or be- coming a regular situation holder, that the employee be noti- fied, in writing, that he or she is entitled to refrain from becom- ing a union member. With respect to the $100,000 buyouts, it is recommended that the Union revise the list drawn up pursuant to which em- ployees of City and Suburban made their bids so that it is or- dered by the length of time that employees have worked for City and Suburban or an immediate predecessor and not by the length of time that employees have worked for other companies having collective-bargaining agreements with the NMDU.26 In the event that the revised list shows that employees who bid for the buyouts had their bids rejected because of their placement on the old list, but whose bids should have been accepted based on a revised list, the Union should request the New York to pay these employees the $100,000. If the request is not accepted by the New York Times, then the Union should make whole, with interest, any employee whose buyout bid should have been accepted based on unit seniority with City and Suburban. With respect to those former C&S employees who were hired by the New York Times it is recommended that the Union request that the Times revise their seniority so that within this group of employees, their relative seniority vis-a-vis each other reflects their unit seniority when they were employed by City 25 The charges do not allege that the current contract between the Union and the New Times is illegal insofar as the Group 2 preference is concerned and I shall therefore not recommend that the Board nul- lify that clause. However, since the same clause exists in the New York Times collective-bargaining agreement, it would be advisable, if this opinion is sustained, for that employer and the Union to voluntar- ily modify its contract in this regard. 26 Any revision of this list should be reviewed and approved by the General Counsel and any documents and/or records necessary to de- termine the proper placement of City and Suburban employees on this list should be provided to the extent not already in the possession of the General Counsel. 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Suburban and not by their union seniority or by the amount of time they worked for other NMDU signatory employers. With respect to Mr. Altieri, it is recommended that the Union notify him in writing that it will not seek to prevent him from being employed by any employers because of his failure to pay dues while he was employed at City and Suburban. Of course, if he is or becomes employed by an employer having a collec- tive-bargaining agreement that contains a valid union-security clause, he may be required to pay the period dues that are nor- mally required of members if he chooses to join, or the periodic agency fees that are required of members as a condition of em- ployment. Where a make-whole remedy is appropriate, backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB (1950), with interest at the rate prescribed in New Hori- zons for the Retarded, 283 NLRB 1187 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended.27 ORDER The Respondent, the Newspaper and Mail Deliverers’ Union of New York and Vicinity, Long Island, New York, its officers, agents, successor, and assigns, shall 1. Cease and Desist from (a) Giving effect to or enforcing any collective-bargaining agreements or any other agreements that it has or had with City and Suburban, the New York Post, or the New York Times which in any way gives preferences to one group of employees over another group of employees based either on their length of time as union members or on the amount of time that they have been employed by companies having contracts with the NMDU other than the companies by whom they are employed. (b) Causing or attempting to cause the New York Post to prevent the promotion of individuals from Group 3 to Group 1 status in order to give preference to other individuals based on their length of time as union members or based on their time employed by NMDU signatory companies other than the New York Post. (c) Failing to give employees proper and timely notice that they are entitled to refrain from becoming union members. (d) In any like or related manner interfering with, restrain- ing, or coercing employees in the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) No longer enforce or implement any contract or agree- ment with the New York Post that in any way gives preferences to one group of employees over another group of employees based either on their length of time as union members or on the amount of time that they have been employed by companies 27 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. having contracts with the NMDU other than the New York Post. (b) Request the New York Post that a revision of seniority be made for those employees who were hired from City and Suburban so that this set of employees be given seniority stand- ing only from the date of their employment at the Post and further revise any seniority lists so that other New York Post employees who have worked longer at the Post be given greater seniority status either as regular situation holders or as Group 1 extras. (c) Make whole with interest, any employees of the Post who have suffered by reason of the discrimination against them in the manner set forth in the remedy section of this Decision (d) Notify, in writing, all bargaining unit members of the New York Post or the New York Times of their right to refrain from becoming members in the Union. (e) Revise the list used to allow former employees of City and Suburban to make a bid for either a buyout or employment at the New York Times. This revision will order “seniority” by the length of time that these employees have worked for City and Suburban or its immediate predecessors and will not be based on the length of time that the former City and Suburban employees have been either union members or on the length of time that these employees have worked for other NMDU signa- tory employers. In the event that one or more employees who bid for the buyouts should have had their bids accepted under such revised list, the Union should request the New York Times to pay each of them $100,000. In the event that this request is unsuccessful, then the Union will make these employees whole with interest. (f) Request the New York Times to revise the seniority status of those employees it hired who had previously been employed by City Suburban to reflect their relative seniority vis-a-vis each other, based solely on their unit seniority with City and Suburban. (g) Notify Daniel Altieri that the Union will not cause or at- tempt to cause any employer to refuse to give him employment because of his failure to pay union dues when he was employed at City and Suburban. (h) Post at its office copies of the attached notice marked “Appendix B.” Copies of the notice, on forms provided by the Regional Director for Region 2 after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and/or members are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its members by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (i) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all records, including an electronic copy of such records if stored in electronic form, necessary to analyze the NEWSPAPER & MAIL DELIVERERS (NEW YORK POST) 281 required revisions to the various seniority lists involved in these cases and to determine, if necessary, the amount of any back- pay due under the terms of this Order. (j) 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. Appendix A Corrections to the record Page Line(s) Transcript reads Should read 101 2 accurate representation inaccurate representation 147 6 Light 154 22 Orientation Not sure 172 1 NYU MOU 188 15 New York Times New York Post 263 12 Elbiarea El Diario 263 12 Fisherman Not sure 263 16 New York Newark 263 20 OG Oggi 283 25 Newest Day Newsday 284 11 Newest Day Newsday 305 4 MLU MOU 325 4 “RICHGEL” “RINGEL” 329-320 Various “Ms. Fleming” “Ms. Ringel” 346 6 Governnient Gutterman 352 9 IBS IDS 356 16 reached Made 357 4, 14, etc. Minocqua Moonachie 359 15 Miller Show New Rochelle 361 25 For what purposes does For what purposes was seniority used in the shops? used in the shops? 362 6 industry work industry-wide 372 11 Mr. Silverman “The Witness” or “Mr. Biegner” 379 11 reporters Employers 380 22 Mr. Silvennan “The Witness” or “Mr. Biegner” 383 11 Betterman Gutterman 383 21 Rockwell Gran Gregorio Rocco Giangregorio 383 22-23 G.N.Gregorio Rocco Giangregorio 419 24 half assed half-asked 469 8-9 Dario El Diario 489 8 Ballantine and Park Valentin and Clark 490 8 artist stage RSH 498 9 artists’ pages RSHs 501 15 non-priority non-member 501 20 PR card 513 11 afforded sorted 516 1 if they had a fight isn’t it a fact 519 17 Beg Beck 521 8 2010 2009 532 25 Beg Beck 546 11 “Agency Demands” “Agency Fee” (re: GC-7 1) 600 8 “ grown-up” “blown-up” 601 11 2-NLRB-870 332 NLRB 870 603 9,20 Nutley Moonachie 14 Nutley Moonachie 609 23 Nutley Moonachie 626 10 Menocke Moonachie 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 653- (throughout Grados test) MS. RlNGEL MS. FLEMING 806 15 LD Aerio El Diario 809 22 Drove Joined 831 6 MS. RINGEL MS. OSBORN 832 13,15 MS. RINGEL MS. OSBORN 864 18 2268 22681 APPENDIX B NOTICE TO EMPLOYEES AND MEMBERS 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT give effect to or enforce any collective- bargaining agreements or any other agreements with City and Suburban, the New York Post, or the New York Times which in any way gives preferences to one group of employees over another group of employees based either on their length of time as union members or on the amount of time that they have been employed by companies having contracts with the NMDU oth- er than the companies by whom they are employed. WE WILL NOT cause or attempt to cause the New York Post to prevent the promotion of individuals from Group 3 to Group 1 status in order to give preference to other individuals based on their length of time as union members or based on their time employed by NMDU signatory companies other than the New York Post. WE WILL NOT fail to give employees proper and timely notice that they are entitled to refrain from becoming union members. WE WILL NOT on any like or related manner interfere with, restrain, or coerce employees in the rights guaranteed to them by Section 7 of the Act. WE WILL no longer enforce or implement any contract or agreement with the New York Post that in any way gives pref- erences to one group of employees over another group of em- ployees based either on their length of time as union members or on the amount of time that they have been employed by companies having contracts with the NMDU other than the New York Post. WE WILL request the New York Post to make a revision of seniority for those employees who were hired from City and Suburban so that this set of employees be given seniority stand- ing only from the date of their employment at the New York Post and further revise any seniority lists so that other New York Post employees who have worked longer at the Post be given greater seniority status either as regular situation holders or as Group 1 extras. WE WILL make whole with interest, any employees of the New York Post who have suffered by reason of the discrimina- tion against them. WE WILL notify, in writing, all bargaining unit members of the New York Post and the New York Times of their right to refrain from becoming members in the Union. WE WILL revise the list used to allow former employees of City and Suburban to make bids for either a buyout or employ- ment at the New York Times. This revision will order “seniori- ty” by the length of time that these employees have worked for City and Suburban or its immediate predecessors and will not be based on the length of time that the former City and Subur- ban employees have been either union members or on the length of time that these employees have worked for other NMDU signatory employers. In the event that one or more employees who had bid for the buyouts should have had their bids accepted under such a revised list, we will request the New York Times to pay them each $100,000. In the event that this request is unsuccessful, then we will make these employees whole with interest. WE WILL request the New York Times to revise the seniority status of those employees it hired who had previously been employed by City Suburban to reflect their relative seniority vis-a-vis each other, based solely on their unit seniority with City and Suburban. WE WILL notify Daniel Altieri that we will not cause or at- tempt to cause any employer to refuse to give him employment because of his failure to pay union dues when he was employed at City and Suburban. NEWSPAPER AND MAIL DELIVERERS UNION OF NEW YORK AND VICINITY