El Diario Publishing Co., Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1955

114 N.L.R.B. 965 (N.L.R.B. 1955)

EL DIARIO PUBLISHING CO., INC. 965
El Diario Publishing Co., Inc. and August Serrano
New York Printing Pressmen's Union, Local No. 2, International
Printing Pressmen & Assistants' Union of North America,
AFL and August Serrano. Cases Was. 2-CA-4147 and 2-CB-1405.
November 14, 1955
DECISION AND ORDER
On August 23, 1955, Trial Examiner Alba B. Martin issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair la-
bor,practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report with-supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the Respondents' exceptions and briefs, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner except as modified herein.'
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
I. The Respondent, El Diario Publishing Co., Inc., of New York
City, its officers, agents, successors, and assigns, shall :
A. Cease and desist from :
1. Engaging in or maintaining any practice of requiring member-
ship in Respondent Union as a condition of employment in its Man-
hattan plant except as authorized by Section 8 (a) (3) of the Act.
2. Encouraging membership in Respondent Union or any other
labor organization by discriminating in regard to any term or condi-
tion of employment of any employee or prospective employee because
of membership in or failure to obtain membership in Respondent
Union.
3. In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities except to the extent that such right may be affected
by an agreement requiring membership in a'labor organization as a
i The only modifications relate to the `recommended order which has been clarified and
supplemented in certain respects.
114 NLRB No. 153.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
B. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
1. Offer August Serrano immediate and full,reinstatement to the
position he occupied prior to the discrimination against him, or a posi-
tion equivalent thereto, without prejudice to his seniority or other
rights and privileges, and without regard to his membership or non-
membership in the Respondent Union or any other labor organization.
2. Post in its pressroom in Manhattan, New York, copies of the
notices attached hereto marked "Appendix A" and "Appendix B."
Copies of said notices, to be furnished by the Regional Director for
the Second Region, shall, after Appendix A has been signed by Re-
spondent Company's representative, be posted by Respondent Com-
pany and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent Company to insure that said notices are not altered, defaced,
or covered by any other material.
3. Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply therewith.
'II. The Respondent, New York Printing Pressman's Union, Local
No. 2, International Printing Pressmen & Assistants' Union of North
America, AFL, its officers, agents, successors , and assigns, shall :
A. Cease and desist from :
1. Maintaining any practice with El Diario Publishing Co., Inc.,
which requires membership in, or affiliation with, the Respondent
Union, as a condition of employment, except as authorized by Section
8 (a) (3) of the Act.
2. Causing or attempting to cause El Diario Publishing Co., Inc., to
discriminate against August Serrano or any other employee or any
applicant for employment, because they are not members in Respondent
Union or in any manner to discriminate against them in violation of
Section 8 (a) (3) of the Act.
3. In any other manner restraining or coercing employees of, or
applicants for employment with, El Diario Publishing Co., Inc., in the
exercise of their rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
B. Take the following affirmative action,, which the Board finds
will effectuate the policies of the Act :
1. Notify El Diario Publishing Co., Inc., in writing that it with-
draws all objections to the employment at its Manhattan operations of
EL DIARIO 'PUBLISHING CO., INC. 967
persons' who are not members of or affiliated with Respondent Union
and that it requests said Company to employ persons at its Manhattan
operations without regard to their membership or nonmembership in
the Respondent Union or any other labor organization. -
2. Notify El Diario Publishing Co., Inc., in writing and send a
copy to August Serrano at 310 Pacific Street, Brooklyn, New York,
that it withdraws all objections to the employment of August Serrano
at its Manhattan operations in the position he occupied prior to the dis-
crimination against him, without regard to his membership or nonmem-
bership in the respondent Union or any other labor organization, and
without prejudice to his seniority or other rights and privileges; said
notification shall contain a request that El Diario Publishing Co., Inc.,
offer August Serrano employment in his former or substantially equiv-
alent position at the Manhattan operations of said Company.
3. Post at its office and meeting halls in New York, New York, copies
of the notice attached hereto marked "Appendix B." Copies of said
notice, to be furnished by the Regional Director for the Second Region,
shall, after being signed by Respondent Union's representative, be
posted by Respondent Union and maintained by it for sixty (60) con-
secutive days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
4. Mail to the Regional Director for the Second Region signed copies
of the notice attached hereto marked "Appendix B," for posting in El
Diario's pressroom in Manhattan. Copies of said notice, to be fur-
nished by the Regional Director for the Second Region, shall, after
being signed by Respondent Union's representative, be forthwith re-
turned to the Regional Director for posting.
5. Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date.of this Order, what steps the Re-
spondent Union has taken to comply therewith.
MEMBER MURDOCK took no part in the consideration of the above De-
cision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees and pro-
spective employees that :
WE WILL NOT require that August Serrano or any other em-
ployees working at our Manhattan operations be members of or
affiliated with New York Printing Pressmen's Union, Local No. 2,
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Printing Pressmen & Assistants' Union of North
America, AFL, as a condition of employment. We will not engage
in any employment practice which makes any such requirement,
except as authorized by Section 8 (a) (3) of the National Labor
Relations Act, as amended.
WE WILL NOT interfere with, restrain, or coerce our employees
or applicants for employment in the exercise of the rights guar-
anteed by Section 7 of the Act, except to the extent such right may
be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by Section
8 (a) (3) of the Act.
EL DIARIO PUBLISHING CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF NEW YORK PRINTING PRESSMEN'S UNION,
LOCAL No. 2, INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS'
UNION OF NORTH AMERICA, AFL AND TO ALL EMPLOYEES OF EL
DIARIO PUBLISHING CO., INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT maintain or enforce any employment practice with
El Diario Publishing Co., Inc., which requires that employees of
El Diario Publishing Co., Inc., who work on, or work at the Man-
hattan operations of the Company, be members of or affiliated with
our organization.
WE WILL NOT cause or attempt to cause El Diario Publishing
Co., Inc., its officers, agents, successors, or assigns, to discriminate
against August Serrano or any other employees or applicants for
employment because they are not members of, or affiliated with,
our organization, or in any other manner to discriminate against
them in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of, or applicants for employment with, the above-named Com-
pany, its successors, or assigns, in the exercise of their rights guar-
anteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
EL DIARIO PUBLISHING CO., INC. 969
organization as a condition of employment , as authorized by Sec-
tion 8 (a) (3) of the Act.
NEW YORK PRINTING PRESSMEN'S UNION,
LOCAL No. 2, INTERNATIONAL PRINTING
PRESSMEN & ASSISTANTS' UNION OF
NORTH AMERICA, AFL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT '
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the Labor Management Rela-
tions Act of 1947, 61 Stat . 136 (herein called the Act), was heard in New York,
New York , on June 1 and 6 and July 25 , 1955, pursuant to due notice to all the
parties. The complaint , issued on May 13, 1955, by the General Counsel of the
National Labor Relations Board I and based on charges duly filed and served,
alleged that El Diario Publishing Co., Inc., referred to herein as Respondent Com-
pany, El Diario, and the Company , had engaged in unfair labor practices pro-
scribed by Section 8 (a) (1) and ( 3) of the Act, and that New York Printing
Pressmen 's Union , Local No. 2, International Printing Pressmen & Assistants' Union
of North America, AFL, referred to herein as Respondent Union and the Union,
had engaged in unfair labor practices proscribed by Section 8 (b) (1) (A) and (2)
of the Act . The complaint alleged that since about November 15 , 1954 , Respondent
Union has demanded and required of Respondent Company that it employ only
members of Respondent Union to do pressroom work and that it exclude its em-
ployee August Serrano from performing any pressroom work because of his lack
of membership in Respondent Union . The complaint alleged further that since
that date and because of the Union's demands, Respondent Company has hired
only members of Respondent Union to do pressroom work , and has excluded its
employee August Serrano from performing any pressroom work because of his
lack of membership in Respondent Union . At the hearing the parties stipulated the
accuracy of the commerce facts alleged in the complaint . In their answers both
Respondents denied the commission of any unfair labor practices.
All parties were represented at the hearing and were afforded full opportunity to
be heard , to examine and cross -examine witnesses , to introduce relevant evidence,
to argue orally, and to file briefs . All parties made short oral summations and no
party filed a brief.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
El Diario Publishing Co., Inc., a New York corporation having its principal office
and place of business in New York, New York, is engaged in the publication of a
newspaper known as "El Diario de Nueva York" and in the news service printing
and publishing business . During the year just prior to the issuance of the complaint
Respondent Company field membership in or subscribed to various interstate news
services , including International News Service and United Press , published various
nationally syndicated features , advertised various nationally sold products , and had
a gross volume of business in excess of $500 ,000. It is held that El Diario Publishing
Co., Inc., is engaged in commerce within the meaning of the Act, that the Board
1 The General Counsel and the staff attorney appearing for him at the hearing are
referred to herein as the General Counsel, and the National Labor Relations Board as
the Board
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has jurisdiction over it, and that under its present standards the Board will assert
its jurisdiction. The Daily Press, Incorporated, 110 NLRB 573.
II. THE ORGANIZATION INVOLVED
New York Printing Pressmen 's Union, Local No . 2, International Printing Press-
men & Assistants' Union of North America, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. El Diario's operations in Brooklyn
For some years prior to November 1954, Respondent El Diario Publishing Co.,
Inc., carried on its business in Brooklyn, New York. There it employed both union
and nonunion employees under the same foreman, John Jones, who was in charge
of running the press, the stereotyping, mailing, and delivery. In Brooklyn the
stereotypers, the mailers, and the deliverers were "union" and so were some
of the employees in the pressroom. However, some of the employees in the press-
room were not members of any union. As labeled by Jones, it was a "combination
shop . . where one man from one department does work in another department."
And the record suggests that some of the departments ran on less than a "full
complement" of employees.
- Respondent Company has never had a contract with the Pressmen 's Union, in-
cluding Respondent Local No. 2.
B. Respondent Union's demands and Respondent
Company's reluctant assent thereto
In November 1954, Respondent El Diario began printing its newspaper in -New
York City, referred to herein as Manhattan, the first issue being printed Friday night,
November 12, 1954. As plans for the move were being made, at least Foreman
Jones, among the management, understood that the Company would operate the same
in Manhattan as it had in Brooklyn, except for necessary changes required by newer
and speedier presses, and except for the impact of unions in Manhattan which he
understood, from his general knowledge, would require the "full complement" in each
department, with "no interchange between categories whatsoever. That is not
done, especially in New York." Jones had worked in newspaper printing plants for
some 27 years and been a foreman for some 11 years.
One evening around 9 o'clock, as the stereotypers were preparing the plates and the
presses were not yet running, William Meyers and six other men presented themselves
in El Diario's pressroom in Manhattan and demanded that the work of running the
press be given to them. The principal spokesman for this group was Meyers,
who was then Respondent Local Union's so-called "Chapel Chairman" for the
employees in the pressroom of the New York Post. He had been elected as chair-
man by the "members of my Chapel" to represent them in their dealings with their
management concerning grievances and working conditions. He held no other post
in the Union.
The witnesses were in disagreement as to what night this was, August Serrano
placing it about 2 weeks after the paper began publishing in Manhattan; Theodore E.
Kluck, El Diario's general manager, placing it as the Monday following the first
issue the previous Friday night; and Jones and Meyers placing it on the Friday
night itself while the first issue was being prepared. Meyers testified that he knew
the paper was going to press that first Friday because "my men were helping to get
the press ready," and so "that was the time I decided I was going to make my move
and try to get into the plant. . I wanted to organize a shop. . I thought this
was the opportune time to organize this particular plant, for my particular members,
in my particular organization, and that is why I did what I did." Under all the
circumstances of the case I believe and find that this incident occurred during the
Friday night that the first paper was being prepared, November 12, 1954.
As to what occurred during the incident, the record is not in much conflict.
Kluck first encountered Meyers and his group in the pressroom, they representing
themselves as being "members of the pressmen's union," though not referring to any
particular local. Kluck ordered them out of the pressroom, and they all went to
the office where a discussion, sometimes heated, took place between Meyers and
Kluck in the presence of Foreman Jones, Serrano, and the men who came with
Meyers. According to the undenied testimony of Kluck, Meyers introduced him-
self and said that he represented the group with him and the Pressmen's Union.
EL DIARIO PUBLISHING CO., INC. 971
Meyers said that the men with him were members of the Pressmen 's Union, and he
demanded that Kluck put,five of them to work running the presses that night. Kluck
stated that the paper could not afford to put these men to work, that if they went to
work they "simply couldn't run a newspaper." According to the undenied testimony
of Jones, Meyers "didn't say so, but referred to the fact he was the organizer
of El Diario. " Meyers said "he was going to work that night, that's why he
was there ." Muck said that he would shut down the newspaper first.
After this discussion Kluck asked all but Meyers to leave the room, and a further
discussion occurred between just the two of them. According to the undenied testi-
mony of Kluck, Meyers prescribed the number of men who should run the presses-
2 men with a foreman if 1 press was running, 4 men with a foreman if 2 presses
were running, 6 men with a foreman if 3 presses were runnning-and Meyers also re-
quired that all pressmen should be union pressmen. Asked, "Did Meyers threaten
your plant with a close down f you didn't use Union men," Kluck replied, "Definitely."
Finally Kluck and Meyers reached a compromise, and Kluck put 2 or 3 of the men
brought by Meyers to work that night running a press. Kluck testified that "we com-
promised so as we could get out a newspaper." Later he explained that language as
meaning that "I took the 2 men under duress.... I was forced to take the 2 men,
otherwise we would not have a newspaper.. . And that was the minimum what I
could get by with." Kluck testified further that Meyers told him "flatly that we would
not publish and just what their procedure would have been, I don't know, but I was
told I wouldn't publish."
Concerning this first night of publication Meyers testified that "... I spoke with
Mr. Kluck, and we harangued and we tussled and argued the point out, and Mr.
Kluck agreed, agreed specifically, to speak with Mr. Dwyer, and I would let my men
work." To the question, "Did you ask Mr. Kluck to speak with Mr. Dwyer?" Meyers
replied, "That's the only way I would let my men go to work. I said, `If you will
speak to Mr. Dwyer, you can go to press.' " The Mr. Dwyer referred to was Joseph
F. Dwyer, president of Respondent Union Local No. 2.
The following Monday, November 15, 1954, Meyers told Dwyer about his con-
versation with Kluck the previous Friday night. He also told Dwyer that he had
made an appointment for Dwyer with Kluck. On about the same day, Monday, Kluck
telephoned Dwyer, and pursuant to an appointment made with him, met him that
afternoon at the office of Respondent Company's attorney. Representing the Com-
pany were Kluck, Jones, and the attorney. With Dwyer were Meyers and a press-
man named Bobby Dull. Kluck testified that both Meyers and Dull told him that
"they were some sort of officials of the Union. Just what they were, they did not
explain. However, they were in on all conferences."
This Monday conference lasted about 2 hours. According to the undenied
testimony of Kluck, which is credited, the position of Dwyer, Meyers, and Dull was
that union pressmen from Local No. 2, and only they, must be employed on the
presses of Respondent Company. Kluck testified that "Dwyer specifically said
that unless we cooperated with them and used the Union men, that they would see to
it that we did not print a paper. That is the way that was put." They also discussed
how many men should be used to run the presses, and Local No. 2's existing wage
scale in New York. Meyers produced a printed page setting forth this wage scale,
addressed "to the members of New York Newspaper Printing Pressmen's Union No.
2," and stating, "This is to advise you that the following scale of wages are now
effective. These schedules apply to our members employed in Newspaper Press-
rooms and are retroactive to December 8, 1953." The document was dated August
30, 1954, and bore the typed names at the bottom of Joseph F. Dwyer, president, and
John L. McFadden, secretary-treasurer. According to the undenied testimony of
Kluck, Meyers pointed out "that this was the rate for the pressmen's rate for the type
of work that they were doing for us at the hours that we ran out [sic] paper."
About a week or two later another meeting was held between the parties, with
Dwyer, Meyers, and Dull representing the Respondent Union, and representing the
Respondent Company, Mr. Kluck, the attorney, and Dr. Dominici, referred to in
Kluck's testimony as "president and publisher of the corporation." At this meeting
there was some discussion about August Serrano, considered below. Also, accord-
ing to Kluck, the discussion "was relatively the same that went on at the first
meeting, except that it was more specifically indicated [by Dwyer] as to the number
of men we had to have for the number of pages that we ran , whether it was
collect, or whether it was straight run...." Also, according to Kluck, Dwyer said
that "they did not want to accept any` negroes in the Pressmen's Union , and they
claimed that Serrano was a negro ." Kluck added that actually Serrano is a Puerto
Rican and is very dark , which testimony was not denied.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his testimony Dwyer stated that he remembers nothing about the first meet-
ing except that it took place . As to the second he stated in substance that the
purpose of his going to it was to see that the Union got the number of men on
the press that the "contract" called for, although it is undisputed that there was no
written contract between El Diario and Respondent Union. Dwyer testified that at
this second meeting he told the company representatives what they would "have to
do" as to numbers employed in the pressroom in order that El Diario employ about
the same number of pressmen as the other newspapers of its approximate size in
the area. By the end of the meeting, according to Dwyer, they had "come to an
agreement" as to manpower.
Both Kluck and Jones testified in substance that all employees who have worked
on the presses for Respondent Company in Manhattan since Meyers' first visit have
been obtained through Respondent Union. The size of the paper determines how
many men they will need. Kluck stated that Jones "notifies the Local as to the
number of pages, 2 days before, and they supply us with the men. . . We have used
nothing but Union men since this all came about, and we don't intend to use any-
thing but Union men." Jones testified that at first Meyers supplied the men, then
for a while Robert Dull, a union pressman who worked some for El Diario. More
recently Jones telephones the home of a union member who has previously worked
for him in Manhattan and asks him if he will work that evening. As all of the men
have other daytime jobs-most of them on the New York Post-they do not always
want to work at night. As a rule some 4 or 5 men are used each night, and while
operating in Manhattan some 18 to 22 different individuals have been used in all,
including about 8 the first week. Kluck testified that in the pressroom in Man-
hattan "we have not had a regular crew other than our foreman." On cross-
examination by counsel for Respondent Union, he testified without motion to strike,
"We have been compelled to employ all union help in New York." Jones, the fore-
man, appears to be the only exception, for he continues to work even though he is not
a union member . No exception is Duffy, who in Brooklyn had done both stereotyp-
ing and presswork, but who in Manhattan does "no press work." In Brooklyn
Duffy had done presswork 4 days a week and, according to Kluck, "Duffy was the
qualified pressman who put on the plates and adjusted the ink, and so on, for the
proper printing of the paper." Kluck stated also that Duffy was a competent press-
man. But in Manhattan Duffy does no work in the pressroom. No exception,
also, was Dick Price, a stereotyper who in Brooklyn served as a pressman "on the
sixth day of the week," but who in Manhattan did no presswork even though Kluck
judged him to be a competent pressman . No exception was Serrano , whose situation
is discussed below.
Conclusions
The above considerations, and the entire record in the case considered as a whole,
compel the conclusion , hereby made , that in the operation of the presses in Man-
hattan, Respondent Union and Respondent Company have , by mutual understanding,
carried out a closed -shop hiring practice requiring membership in Respondent Union
as a condition of employment. Such a practice is no longer permitted under the
Act. Respondent Company's complete surrender to the Union's demands in this re-
gard does not excuse it from liability under the Act . By enforcing and giving effect
to this unlawful practice Respondent Company has violated and is violating Section
8 (a) (1) and (3) of the Act , and Respondent Union has violated and is violating
Section 8 (b) (1) (A) and (2) of the Act . George D. Auchter Co., 102 NLRB
881, 883, enfd . 209 F. 2d 273 (C. A. 5); Construction Specialties Company, 102
NLRB 1542, International Brotherhood of Boilermakers , etc., 94 NLRB 1590; Con-
solidated Western Steel Corporation , et al, 108 NLRB 1041 , 1042; International
Brotherhood of Teamsters, etc., 111 NLRB 952; United Brotherhood of Carpenters
and Joiners of America, Local #517, AFL, 112 NLRB 714.
C. The changing duties of August Serrano
Shortly after the move to Manhattan, Serrano's duties were changed, the basic
question being whether they were changed because he was not a member of the
Respondent Union or for some other reason or reasons.
Serrano had worked in the pressroom in Brooklyn for Respondent Company since
1948 (and prior to that he had worked as a pressman at El Mundo, a newspaper in
Puerto Rico). Without specific reference to when he had performed them, Ser-
rano testified that his duties in Brooklyn included cleaning and oiling the machine,
checking the spinners and gears of the machine ( the machine presumably being
the press ), cleaning the plates , putting the plastic photographs in position , putting the
EL DIARIO PUBLISHING CO., INC. 973
plates in the machine, and closing the machine. Then, after the plates were set, he
ran the machine to get proofs in order to see if there were any defects in the form.
When the paper had to be changed, he changed it. When the paper tore, he helped
to thread it. When the machine was running, he went to the fly and flew the papers.
This meant that as the printed newspapers accumulated at the end of the run, he
picked them up by hand and set them aside for the next operation, which was
mailing and delivering.
According to Foreman Jones, Serrano had been employed in Brooklyn "to fly
the papers and clean the pressroom. Since then, he has had various duties. He has
been called in on overtime to help me fix the press, he put the plates on, oiled the
press, he did a lot of other things. You can't expect anybody to remember every single
order I ever gave him in 6 years." Jones testified further that at the end in Brook-
lyn, just before the move, Serrano "took the papers off the press-what we call flying
the papers. He put the plates around the press, prepared the rolls for the press .
prepared the paper rolls for the press." Right up to the move he came in Fridays
on overtime and greased the press. He also had the job of removing the plates after
the run; helped lead the paper through the rollers when it broke; and changed the
position of the fly from straight run to collect.
General Manager Kluck testified that Serrano was a satisfactory employee, that
he "did everything that a pressman, a fully qualified pressman did," and that Kluck
(who has worked "in newspapers in and about New York" for 30 years) considered
him a fully qualified pressman.
On the basis of the above testimony, and upon all the testimony on the subject,
I conclude that just before the move from Brooklyn Serrano's regular duties in-
cluded not only taking "the fly," but also at least the following: Getting the plates
from the stereotypers and putting them around and near the press; removing the
plates from the press after the run; preparing the paper rolls for the press; when
the paper broke, helping to lead it through the rollers to the fly; changing the posi-
tion of the fly from straight run to collect.
The testimony is conflicting as to what duties Serrano performed just after the
move to Manhattan. Serrano testified that during the first few days, until the
Tuesday following the first visit of Meyers and his group on Friday-which I find
to have been Tuesday, November 16, 1954-Serrano performed in Manhattan all
the duties he had performed in Brooklyn, which included flyboy duties and many
more, as found above. Serrano testified further that on that Tuesday "they put me
to work at the fly" and that thereafter for several weeks he did nothing but flyboy
work.
General Manager Kluck stated that "when we first started to operate in Man-
hattan" Serrano performed the duties of a flyboy and many additional duties. He
testified that in Manhattan a flyboy carried the plates from the stereotyping depart-
ment and put them near and around the press, from where the pressman placed
them on the press; after the run he removed the plates from the press; he oiled;
he wiped down the ink. According to Kluck, Serrano performed these duties and
in addition he threaded the paper, handled the tension, greased, the press, and saw
that the ink flows were correct.
In direct contradiction of his general manager, Foreman Jones testified that during
the first night's operation in Manhattan Serrano neither put the forms on the press
nor took them off the press-but Jones did not remember who did perform these
operations. Nor did Serrano put the plates around the press-but Jones did not
remember who did. That first night they had much trouble with paper breaking,
all of them working, as it turned out, some 16 hours before quitting. All Serrano
did during this shift, according to Jones, was to work on the fly and to help thread
the paper through when it broke. Jones testified that the only original duties assigned
to Serrano in Manhattan besides flying the paper was greasing the press and preparing
the paper rolls for the press.
Asked why Serrano did not perform in Manhattan the duties he had performed in
Brooklyn, Foreman Jones attempted to account for some of them by explaining that
they were done on overtime and he had cut them out after Kluck had asked him to cut
out overtime. Neither Serrano nor Kluck had testified to anything about cutting
out overtime as affecting the duties of Serrano. Once in Manhattan, according to
the credited testimony of Serrano, he tried to "get the plates. Then Mr. Jones said
I couldn't touch the plates at all . because the union didn't want me to." Jones
admitted that he stopped Serrano from "trying to put the plates on the press," and
did not deny that the Union had caused it. As to why Serrano does not remove
the plates from the press, Jones testified, "I never gave him specific instructions that
he should not do it. It's just one of those things that came about. He doesn't do
it, and I am satisfied ." Elsewhere he stated, however, that a pressman puts the
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plates on the press and that the same man who puts the plates on "must remove
them." He did not state who or what furnishes the compulsion, but on this record
it is clear. As to why Serrano does not make the change in the collect cylinder,
Jones said that he does it himself rather than teach Serrano.
Jones testified further that nowadays Jones himself greases the press, two pressmen
do the oiling, and an apprentice cleans the press.
By their demeanor on the witness stand Kluck impressed me as a more forthright
and credible witness than Jones. Where their testimony is in conflict, I credit the
version of Kluck. On the basis of Kluck's testimony, and in the light of the entire
record, I conclude and find that when they started operating in Manhattan and until
the following Tuesday Serrano was regularly assigned to perform the following duties-
Pick up the papers at the fly and lay them aside in bunches for the next operation;
carry the plates from the stereotyping department and put them near and around the
press; after the run remove the plates from the press; oil the press; clean the press;
thread the paper; handle the tension; grease the press; see that the ink flows were
correct; prepare the paper rolls for the press.
The Tuesday after the visit of Meyers and his group the previous Friday-which
I find was Tuesday, November 16, 1954-in the language of Serrano "they put me to
work at the fly." From then until about the end of December 1954, he did nothing
but "flyboy."
The question arises, English being a foreign tongue to Serrano, as to whether
during this period Serrano performed all of the duties of a flyboy, given above, or
whether he simply took the papers at the fly and did not perform the other duties of
the flyboy, such as putting the plates around the press, removing them after the
run, oiling and cleaning the presses-duties which included work on the press. To
be noted in this regard is that this reassignment of Serrano (presumably by Jones
who was his immediate superior) followed by only a few hours the first meeting of
Dwyer with Kluck and Jones during which, as found above, Dwyer insisted, upon
pain of not printing a newspaper, that only members of Local No. 2 be employed
on the presses of the Company. Serrano was not a member. Jones testified that
the second night of printing they had different men working in the pressroom than
they had the first night. In the second meeting between Dwyer and Kluck, which
fell during this period, Jones testified that Jones told Dwyer that Serrano "was at the
end of the press, flying the papers . . ." which suggests that he was not performing
other duties in the operation of the press. As found below, some weeks later Meyers,
speaking for the Union, told an employee that he, Meyers, had ordered Jones to
take Serrano "off the machine." And finally when, as appears below, the installa-
tion of an escalator eliminated taking the fly by an employee, Serrano was left with
no duties to perform, an unlikely circumstance if, while he was taking the fly, he
was also performing other duties. Under all the circumstances I believe and find
that during the period from November 16 to about December 30, Serrano was per-
mitted to take papers at the fly and nothing else, thereby being deprived of all the
other duties of the flyboy in Manhattan, enumerated above, and also the other
duties, given above, which he had performed in Manhattan prior to Tuesday,
November 16.
In the second meeting between the Company and union representatives, which
occurred about November 22 or 29, Dwyer testified that "after we had agreed on
the number of men that we should use on the presses," they talked about Serrano.
According to Dwyer, "we said that he didn't belong in the press room-he belonged
in another department." When asked who was going to pay Serrano, Dwyer said,
"I don't know who is going to pay him-you fellows, I guess." Dwyer added that
"I knew that we were going to have installed there an escalator on that press. As
long as there is no escalator on a press, we hold jurisdiction. Once they put an
escalator on it, that escalator puts the papers off on a different level than [sic]
belongs to the mail room."
At about the turn of the year Respondent Company installed an escalator, which
carried the papers, without manual assistance , directly from the presses up to the floor
above to the mailroom, where they were removed from the escalator by a "flyboy"
in the mailroom . At that time Jones sent Serrano upstairs to take the fly, but a
member of the "Mailers' Union" up there who was taking the fly would not let Serrano
do it. So Serrano returned to the pressroom where Jones told him to do nothing.
The rest of that shift and the next two shifts Serrano continued to report for work
and stay the full shift, but he did no work.
Then, according to the credited testimony of Serrano, he spoke to Kluck about
his plight and the latter told him not to worry, that he would speak to Jones about it.
Then Serrano went to see Meyers at the New York Post. When he asked Meyers11why each time I asked Mr. Jones that he would answer that it was a union matter,"
EL DIARIO PUBLISHING CO., INC. 975
Meyers replied that he had "ordered Mr. Jones not to allow me to touch the ma-
chine." Then Meyers raised the question as to Serrano's joining the "paperhandlers'
union"-meaning, presumably, the "Mailers' Union"-and said that he had tried hard
to get Serrano into the pressmen's union, but to no avail.
The following day Serrano returned to talk with Meyers, bringing with him his
brother Carlos Serrano and a friend, Juan Rivera, both of whom had worked for
El Diario for a number of years. According to the undenied and credited testimony
of Carlos Serrano, when August Serrano asked Meyers why Jones did not let
August work on the press, Meyers replied that he, Meyers, had ordered Jones to take
August off the machine because he was not a member of the Union. Meyers also
told August that he would help him get into this other union, but not into the Press-
men's Union. When the employees contended that August was a pressman, not a
mailer, Meyers did not change his position. According to the undenied and credited
testimony of Juan Rivera, when they asked Meyers why he would not let August
Serrano work as a pressman, the latter replied that anyone who did not belong to the
Union could not work in the pressroom, and August did not belong to the Union.
Shortly after August Serrano spoke to Kluck, during which Kluck said he would
speak to Jones, Serrano was put to work again, presumably by Jones, but at very
limited duties-bringing rolls of paper from where they are stored to the pressroom,
removing the covers, and preparing the end of the roll for the press. Until the press
is ready for another roll he just stands around and waits. He stays on duty the entire
shift, and during that time he actually works only about 15 to 30 minutes. For this
he gets paid for a full shift of work. This has been going on ever since early January
1955.
Insofar as the record reveals, all functions in the pressroom remain as they were
from the beginning in Manhattan, except the change occasioned by the installation of
the escalator. Thus the duties originally performed by Serrano in Manhattan continue
to be performed, but now they are performed by a member of Local No. 2, which ac-
cording to its president will not admit Serrano to membership.
Conclusions
Under the Act it is a violation of Section 8 (a) (3) for an employer to engage in
,"discrimination in regard to . . . any term or condition of employment . . ," of an
employee. Although Serrano continues to receive full-shift wages for only a few
minutes' work per night, there can be no doubt that a "condition" of his employ-
ment is the nature of the duties he performs for those wages. The duties an em-
ployee performs relate not only to his present contentment with the job and his own
estimate of its duration, but also to his future career as the result of his retention or
loss of any acquired skills because of the use or nonuse of them. On the basis of the
entire record I conclude that at all times since the change of his duties on November
16, 1954, Respondent Company has engaged in discrimination in regard to a condi-
tion of Serrano's employment.
Section 8 (a) (3) provides further that the discrimination must have been "to en-
courage or discourage membership in any labor organization," a phrase considered
by the Supreme Court in the Radio Officers', Teamsters, and Gaynor cases? Here,
the inherent effect of the discrimination against Serrano was encouragement of union
membership in the Pressmen's Union by other employees, such as Duffy and Price,
if they wished to work as pressmen in Manhattan as they had done in Brooklyn.
This inherent effect is not negatived by the Union's present restrictive practices con-
cerning the admissions of members (which were somewhat described in the record)
for these practices might at any time change at the will of the Union, the change of
the employees' "Quantum of desire" to join the Union then having later manifestations.
As the Court said in the above cases,
... it is common experience that the desire of employees to unionize is raised
or lowered by the advantages thought to be attained by such action. Moreover,
the Act does not require that the employees discriminated against be the ones
encouraged for purposes of violations of Section 8 (a) (3). Nor does the Act
require that this change in employees' "Quantum of desire" to join a union have
immediate manifestations.
On the basis of the entire record considered as a whole I•,conclude that at all times
since November 16, 1954, Respondent Company has discriminated against Serrano
'Radio Officers' Union of Commercial Telegraphers Union, AFL v N. T, R B
N. L. R B v International Brotherhood of Teamsters, Chauffeurs, Warehousemen t
Helpers of America et at , Gaynor News Company, Inc v N. L R. B, 347 U S 17
976 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
in regard to a condition of his employment to encourage membership in Respondent
Union , Respondent Company thereby violating Section 8 (a) (3) and ( 1) of the Act.
As to whether the violation of Section 8 (a) (3) was caused by Respondent Union,
the first question is whether the Union was responsible for the acts and statements
of Meyers . In substance Dwyer and Meyers testified that Meyers had no authority
from the Union with reference to organizing . In fact , of course , in 1955 Meyers
did not undertake to organize El Diario employees , but rather to substitute members
of the Union for El Diario employees who were not members of the Union . Meyers'
original demands and the almost immediately following demands of President Dwyer
were identical : if the Company was to publish , only members of the Union could
work on the presses of the Company . Thus as president of the Respondent Union,
Dwyer not only did not repudiate the position Meyers had taken , but adopted it
and announced it as the Union 's own position . Further, in both meetings Dwyer
had with management, Meyers accompanied him and conducted himself, with
Dwyer's tacit approval, as a spokesman for the Union. In that capacity Meyers
produced a copy of the Union 's printed wage scale bearing the names of its presi-
dent and secretary -treasurer and pointed out where the El Diario operation would
fit into it . At the beginning Meyers was the instrument through which the Union
supplied union pressmen to El Diario . Later, Meyers took the same position Dwyer
had earlier taken at the meetings with management : that the Union did not want
to accept Serrano into the Union because he was a Negro . In substance he told
Carlos Serrano and Juan Rivera that August Serrano did not belong to the Union,
that anyone who did not belong to the Union could not work in El Diario 's press-
room, and that he had ordered Jones to take August off the press because he was
not a member of the Union. On the basis of the above evidence , and upon the record
in the case , I conclude and find that Meyers had general authority from the Union
to deal with Respondent Company and to carry out Respondent Union 's policy
towards that Company.3
The next question is whether in the activities revealed in this record , particularly
those with reference to Serrano , Meyers acted within the scope of this general
authority . As revealed in this record , the Union 's policy towards this Company was
to see that it employ only members of Respondent Union in pressroom jobs involv-
ing the handling of the presses and the plates. As found and enumerated above, in
the performance of his work during the first several editions of the paper , Serrano
carried out a number of duties involving the presses and the plates. It was, there-
fore, within the scope of Meyers ' general authority in carrying out the Union's policy
to see that Serrano cease from performing such duties . It was also within the
scope of Meyers ' general authority to tell Carlos Serrano and Juan Rivera that any-
one who did not belong to the Union could not work in El Diario 's pressroom and
that he had ordered Jones to take August Serrano off the press because he was not
a member of the Union . On the basis of the entire record I find that Respondent
Union was responsible for these statements by Meyers , and that as declarations against
interest and therefore an exception to the hearsay rule, the declarant 's (Meyers')
statements may be taken as the truth . In view of these considerations , I find that
the Union , speaking through Meyers, told Foreman Jones to take Serrano off the
press because he was not a member of the Union.
The Union contends in substance that Serrano 's duties were changed in Manhattan
because he was less competent as a pressman than the union members supplied by
the Union . The record does not establish, however, that he was less competent
than others to perform the precise duties he performed for the first several publica-
tions in Manhattan . Nor does the record establish that his duties were changed
because of any incompetence . Serrano had worked for El Diario for some 5 or 6
years doing pressroom duties, was a satisfactory employee, and when the paper
was moved to Manhattan , he was given pressroom duties commensurate with his
qualifications.
The entire record considered as a whole establishes , and I conclude, that the
discrimination against Serrano by Respondent Company on and after November 16,
1954, was caused by Respondent Union, the latter thereby violating Section 8 (b)
( 1) (A) and (2) of the Act.
As seen above , at about the end of December 1954, Respondent Company installed
an escalator , which had the effect of eliminating part of the flyboy's duties-taking
the completed papers from the press , jogging them, and setting them aside for the
next operation . The record is silent as to the considerations which led the Company
9 Cf. Sunset Line and Twine Company, 79 NLRB 1487, 1509.
EL DIARIO PUBLISHING CO., INC. 977
to make this change; in any case the record does not justify a finding that the change
was made as a result of pressure from the Union or because of the impact it would
have upon Serrano's duties. On the entire record I hold that by the installation of
the escalator Respondent Company did not further violate the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connec-
tion with the operations of Respondent Company described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, I
shall recommend that each of them cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondent Company and Respondent Union have carried
out an unlawful hiring practice by requiring membership in Respondent Union as a
condition of employment in the operation of the presses in Manhattan, I shall rec-
ommend that they cease and desist from such practice.
Having found that since November 16, 1954, August Serrano has been dis-
criminatorily deprived of the following duties in the pressroom because he is not
a member of Respondent Union, I recommend that Respondent Company offer
to Serrano regular work performing the following duties: Carrying the plates from
the stereotyping department to near and around the presses; after the run removing
the plates from the presses; oiling the presses; cleaning the presses; threading the
paper; handling the tension; greasing the presses; seeing that the ink flows are
correct; bringing up the paper rolls for the presses and preparing them for use.
Having found that Respondent Union caused the discriminatory change in Ser-
rano's duties, I recommend that Respondent Union immediately write El Diario
Publishing Co., Inc., that they withdraw all objections to the regular performance
by August Serrano of the duties listed just above.
As it has been found that the installation of the escalator was not discriminatorily
motivated and Serrano was not therefore discriminatorily deprived of the duty of
flying the paper, I do not recommend that he be restored to that duty.
Serrano having suffered no loss of pay as a result of the discrimination, there is
no back-pay issue involved.
The violations of the Act committed by the Respondents are persuasively related
to other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is to be anticipated from the Respondents' conduct in the past.
The preventive purposes of the Act will be thwarted unless the order is coextensive
with the threat. In order, therefore, to make more effective the interdependent guar-
antees of Section 7, to prevent a recurrence of unfair labor practices , and thereby
minimize industrial strife which burdens and obstructs commerce , and thus effectuate
the policies of the Act, I shall recommend that the Respondents be ordered to cease
and desist from infringing in any manner upon the rights guaranteed in Section 7 of
the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. New York Printing Pressmen's Union, Local No. 2, International Printing
Pressmen & Assistants' Union of North America, AFL, is a labor organization with-
in the meaning of Section 2 (5) of the Act.
2. By carrying out and continuing to use a closed-shop hiring or employment prac-
tice requiring membership in Respondent Union as a condition of employment on
the presses of the Company, the Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) in the
case of Respondent Union , and within the meaning of Section 8 (a) (1) and (3) in
the case of Respondent Company.
3. By discriminating in regard to the hire and tenure of employment of August
Serrano, thereby encouraging membership in a labor organization, Respondent Com-
pany has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act. '
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By causing Respondent Company to discriminate against August Serrano in
violation of Section 8 (a) (3) of the Act, Respondent Union has engaged in unfair
labor practices within the meaning of Section 8 (b) (2) and (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
H. P. Hood & Sons, Inc. and Milk Wagon Drivers and Creamery
Workers Union, Local 380, AFL, a/w International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America , AFL, Petitioner . Case No. 1-IBC-4063. November
14, 1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
relations Act, a hearing was held before Robert S. Fuchs, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks to represent a unit of all wholesale drivers and
helpers employed at the Employer's Charlestown, Massachusetts, milk
processing plant, including route foremen. The Employer contends
that the unit sought is inappropriate, asserting that the unit should
encompass all locations within its region 1, and should also include all
production and maintenance employees and retail drivers within that
region. The Employer contends further that in the event the Board
determines that a driver unit is appropriate, the unit should then in-
clude all wholesale and retail drivers in region 1.
The Employer is engaged in the processing and distribution of milk
and dairy products. It maintains its principal office in Charlestown,
Massachusetts, and operates processing plants and sales distribution
stations in the six New England States and in New York State. For
administrative purposes its operations are divided into four geo-
graphical regions. The Charlestown processing plant is a part of
the geographical area known as region 1, which includes 2 other milk
processing plants and 7 distribution stations. The processing plants
process milk in([ other raw products for sale and distribution. The
distribution stations contain refrigeration facilities where processed
inilk is stored for subsequent distribution.
114 NLRB No. 155.