New York Typographical Union Number Six, ITU

National Labor Relations Board - Board Decisions

Nov 14, 1963

144 N.L.R.B. 1555 (N.L.R.B. 1963)

NEW YORK TYPOGRAPHICAL UNION NUMBER SIX, ITU 1555
WE WILL NOT, through any course of conduct subject to proscription as a
refusal to bargain, interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form labor organizations, to join
or assist United Packinghouse, Food and Allied Workers, AFL-CIO, or any
other labor organization, to bargain collectively through representatives of their
own free choice, and to engage in other concerted activity for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activity, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act, as amended.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of any labor organization, except to the extent that this right
may be affected by a lawful agreement requiring membership in a labor organization
as a condition of employment.
VALLEY DATE GARDENS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate with the Board's Regional Office, Eastern Columbia
Building, 849 South Broadway, Los Angeles, California, Telephone No. Richmond
9-4711, Extension 1031, if they have any question concerning this notice or com-
pliance with its provisions.
New York Typographical Union Number Six, International
Typographical Union, AFL-CIO and Lawrence F. Cafero and
The New York Times Company; and Publishers' Association
of New York City, Parties in Interest . Case No. 2-CB-3604.
November 14, 1963
DECISION AND ORDER
On July 2, 1963, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs,' and the Respond-
ent also filed a request for oral argument.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the 'Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
1 The International Typographical Union filed a brief amicus curiae in opposition to the
conclusions and recommendations of the Trial Examiner.
2 As the record, including the exceptions and briefs, adequately sets forth the issues and.
the positions of the parties, the request is hereby denied.
144 NLRB No. 146.
727-083-64-vol. 144-99
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and briefs, and hereby adopts the findings 3 and conclusions
of the Trial Examiner only insofar as they are consistent with the
following :
The complaint alleges that through its control over the hiring,
selection, and retention of composing-room employees of the Times
and other members of the Association, the Union in violation of Sec-
tion 8(b) (1) (A) and (2) caused Lawrence F. Cafero, a longtime
employee of the Times, to lose employment and employment oppor-
tunities by placing his name at the bottom of the Times' seniority list.
More specifically, the General Counsel does not contend that the
Union's control of hiring and layoff is itself unlawful. Rather, he
asserts only that the implementation of that control in the case of
Cafero was a violation of the Act.
The composing-room employees of the Times sand the other employee
members of the Association are represented for collective-bargaining
purposes by the Respondent Union. At the time material herein,
the terms and conditions of employment of composing-room employees
were embodied in a contract between the Union and the Association.
The agreement provides, inter alia, that the Union is required to fur-
nish the Association's members with "as many skilled" employees as
they need "for the operation" of their composing rooms. It further
provides that control over hiring, direction of work, and discharge is
vested 'in the general foremen, who are required to be members of
the Union. However, when hiring, the foremen must recognize the
priority of "regular situation holders." 4 Despite the contractual pro-
vision which formally vests control of hiring and layoff in the general
foreman of Association members, it is clear, as found by the Trial
Examiner, that, in practice, at least at the Times,' the general fore-
man does not control the selection of the specific individuals who work
in its composing room but that in fact such control lies with Union
and its chapel chairman, who compiles and maintains the priority list
of regular situation holders and substitutes.
Since 1946, the Charging Party, Lawrence F. Cafero, has been a
member of the Respondent Union and has worked for the Times as a
proofreader on the night shift. At the start, he was placed by the
Union's chapel chairman at the bottom of the proofreaders' substi-
8 At one point in his Intermediate Report, the Trial Examiner inadvertently referred to
September 8, 1962, rather than December 8, as the starting date of the New York City
newspaper strike.
4 A regular situation is defined as a workweek of 5 full days.
5 The Trial Examiner concluded that the General Counsel had failed to prove that at
the establishments of members of the Association, other than the Times , the Union controls
hiring, selection, and retention of composing-room employees, as alleged in the complaint.
In view of the basis for our decision, infra, we deem it unnecessary to consider the General
Counsel's exception to this conclusion.
NEW YORK TYPOGRAPHICAL UNION NUMBER SIX, ITU 1557
tute seniority list, and gas a substitute proofreader, worked only gas an
"extra" when additional proofreaders were needed by the Times, or
as a substitute when a regular situation holder was absent. However,
by March 1948, Cafero had acquired priority status as a regular
situation holder, in which capacity work was always available to him
whenever he reported. Also for the past 13 years, in addition to his
night job at the Times, Cafero has had a regular daytime position, the
last 3 years as principal of a junior high school, a position he held
at the time of the hearing.
In July 1962, a story appeared in the Times which, among other
things, referred to Cafero as a school principal. About a week later,
Thomas Kopeck, the Union's secretary-treasurer, told Cafero over
the telephone that a number of the Times' employees had complained
about Cafero's priority, and confirmed from Cafero's ready disclosure
that he in fact worked full time as a high school principal. Kopeck
then advised Cafero that he would have to reclassify him as "not at
trade." On July 17 Cafero visited with Kopeck at the Union's head-
quarters and there received personal delivery of a letter signed by
Kopeck, stating, inter alia, that Cafero had been classified "not at
trade," because he was employed full-time in another occupation, and
that this decision was based upon section B6 of the Dues Circular
issued by order of the executive council.6
Cafero then had a conversation with Powers, Respondent Union's
president, in which Powers stated that he felt Cafero was using his
priority as a convenience and that in view of Kopeck's "not at trade"
classification he had no alternative under the Dues Circular but to
remove Cafero's "priority," which he then did in a telephone call to
the chapel chairman at the Times. On a number of occasions there-
after Cafero was denied night work at the Times as a proofreader,
which work he could have had if he had retained his "priority."
The Trial Examiner found that the Union's treatment of Cafero
violated the Act. In reaching his result, he concluded in substance
that the action taken against Cafero was "arbitrary, unfair, and in-
vidious," not warranted by the applicable bargaining agreement, and
thus in contravention of Section 8(b) (1) (A) and (2). He relied
essentially on the Board's decision in Miranda Fuel Company, Inc.,
140 NLRB 181, to support his ultimate findings of violation. We
disagree with the Trial Examiner.
In Miranda the Board found unlawful certain union action ad-
versely affecting an employee's job status because such action was
predicated on certain arbitrary and invidious grounds and was in
O The Dues Circular of the executive council of the International Typographical Union,
AFL-CIO , provides in relevant part : "Members who have full -time employment at other
occupations are classed as `N.A T.' and are not eligible for employment at the printing
trade except with permission of proper officers of the local union when all available sub-
stitutes are employed."
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conflict with the provisions of the existing, applicable bargaining
agreement. The union had failed, the Board held, to comply with its
statutory obligation of fair representation for all employees. Here,
however, the Respondent's actions against Cafero were for the legiti-
mate purpose of attempting to give the work of the trade to those
who presumably needed it, rather than to those who held, full-time
positions elsewhere. Consequently, we find that the Respondent's
conduct in classifying Cafero "not at trade" was one based not on an
arbitrary or invidious, but rather upon a reasonable, classification of
employees 7 Furthermore, we cannot conclude, as did the Trial Ex-
aminer, that the Respondent's action was contrary to the terms of the
existing bargaining agreement. The general laws of Respondent's
International, which are incorporated by reference into the contract,"
provide that a local may establish a regulation providing that a
situation holder may work outside the trade for 90 days without losing
his situation. Section 33(f) of the contract appears to reflect an
agreement between the Respondent,and the Times to just such effect,
and it is the Union's position that that section expressly warrants
the action taken with respect to Cafero. The Trial Examiner found,
however, that section 33(f) was inapplicable to Cafero's situation,
basing his reasoning on the heading to the section referring to "Neces-
sary Absence" and reasoning that the subsection referred only to such
absences. He, thus, concluded that the contract did not provide for
Cafero's loss of situation and that in fact such loss violated the length-
of-service seniority provision.
It is not, in our opinion, necessary for us to determine which inter-
pretation is correct. Rather, we believe it is enough to note here that
the Respondent's construction is at least a reasonable one, and con-
sequently, that there is no basis for finding that the treatment of
Cafero necessarily violated the terms of the contract.' Neither is
there any substantial basis for concluding that section 33(f) was
arbitrarily applied in Cafero's case or that he was otherwise singled
out for discriminatory treatment. There is, to be sure, some evidence
suggesting that the Respondent or its sister locals have to some extent
unevenly applied the "not at trade" status to employees holding posi-
tions outside the trade.10 Nevertheless, the record also shows that
7In accordance with his dissent in Miranda Fuel Co., Inc., supra , Chairman McCulloch
does not rely for his finding of no violation in this case on any criteria which judge the
Respondent 's action in terms other than those of encouragement of union membership or
loyalty, the acknowledgment of union authority , or the performance of union obligations
Section S.
Of course, if a court of competent jurisdiction or a duly designated arbitrator had
interpreted the disputed provisions of the contract in a manner contrary to that urged by
the Respondent , or if the parties had consistently in practice given it another clear, un-
ambiguous meaning, we would be confronted with a situation that might well require a
different result.
11 Thus, there is evidence of a Chicago local's failing to classify as "not at trade" an
individual who worked at night as a printer but operated a law office during the day,
while Respondent permitted an individual to retain his situation who apparently became
NEW YORK TYPOGRAPHICAL UNION 1VUMBER SIX, ITU 1559
the Respondent classified as "not at trade," and thus deprived of their
priority or situation, two individuals working full-time as school
teachers, and that a west coast local similarly treated an individual
working as an engineer on a fireboat. Consequently, there is no basis
for concluding that Cafero was subject to capricious, disparate treat-
ment. Lastly, there is no evidence-and in fact no allegation-that
the action taken against Cafero was related to his union or other
concerted activities or his failure to engage in such activities or that it
was for the purpose of encouraging or discouraging union activities."
In view of the foregoing, we find that the action of Respondent
against Cafero was not arbitrary or capricious and that it did not
represent a failure by Respondent in carrying out its representative
responsibilities in a fair and even-handed manner. Accordingly, we
conclude that the General Counsel has failed to prove by a prepond-
erance of evidence that the Respondent violated Section 8(b) (1) (A)
and (2) of the Act. We shall, therefore, dismiss the complaint.
[The Board dismissed the complaint].
physically unable to perform his duties and, therefore, worked but rarely at the trade, and
consequently supplemented his income by occasional employment as a singer However,
there is no evidence showing that either of these individuals looked to the trade only for
income supplementing a substantial income from a nontrade position as was the situation
with respect to Cafero. Consequently, on the record before us-which is at best unclear
on the point-Cafero's situation and those of the "lawyer" and "singer" are distinguishable.
11 That the treatment of Cafero may in fact have had some effect in encouraging or dis-
couraging union activities would not alone afford a sufficient basis for finding the conduct
unlawful See Local 357, International Brotherhood of Teamsters , etc (Los Angeles
Motor Express ) v N.L R B., 365 U S. 667, 675, 676. See also Millwrights' Local Union
1102 , United Brotherhood of Carpenters and Joiners of America ( Planet Corporation),
144 NLRB 798.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed November 23, 1962, by Lawrence F. Cafero, the General
Counsel of the National Labor Relations Board issued a complaint dated February 28,
1963, against New York Typographical Union Number Six, International Typo-
graphical Union, AFL-CIO (herein called the Union or the Respondent ), alleging
that the Union had engaged in and is engaging in unfair labor practices within the
meaning of Section 8(b)(1) (A ) and (2 ) and Section 2(6) and (7) of the Act.
In substance , the complaint alleges that the Union , which is the collective-bargaining
representative of the composing room employees of The New York Times Com-
pany (herein called the Times ) and other employer members of the Publishers'
Association of New York City (herein called the Association ), maintains an arrange-
ment with the Times and the Association whereby the Union , through the assign-
ment to it of maintenance and control of seniority and priority lists, controls the
hiring, selection , and retention of employees who work in the composing rooms of the
Times and other members of the Association . The complaint further alleges that
pursuant to such control , on July 17, 1962, the Union placed Cafero (a longtime
employee of the Times ) at the bottom of the Times' seniority list, and thereby
caused Cafero to lose employment and employment opportunities at the Times and
other employer members of the Association . The Union filed an answer which
denies the commission of unfair labor practices.
Pursuant to due notice , a hearing was held before Trial Examiner Samuel Ross
at New York , New York, on April 8 and 9 , 1963. All parties were represented
at the hearing by counsel and were afforded full opportunity to be heard, to intro-
duce evidence , to examine and cross-examine witnesses , to present oral argument,
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to file briefs. After the hearing, on May 20, 1963, the General Counsel 'filed
a brief which I have carefully considered.'
Upon the entire record in the case and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
I. COMMERCE
The Times, a New York corporation whose principal office and place of business
is located in the city and State of New York, is engaged in the business of printing
and publishing a daily newspaper called The New York Times. In the operation of
said business, the Times purchased and caused to be transported to its plant in
New York from points and places other than the State of New York, materials and
supplies valued in excess of $50,000. During the same period, the Times was a
member of, and/or subscribed to, various interstate news services, including, inter
alia, the Associated Press and the United Press, published various syndicated features,
advertised various nationally sold products, and derived gross revenues from said
publishing operations in excess of $200,000.
The Association, an unincorporated organization of employers who are engaged in
the publication of newspapers in and around New York City, engages, inter alia, in
the negotiation and execution of collective-bargaining agreement, on behalf of its
members, including the Times, with various labor organizations, including the
Respondent Union. During the past year, a representative period, in the operation
of their businesses, the employer members of the Association purchased and caused
to be transported to their respective places of business in the State of New York
from points and places outside the said State, materials and supplies valued in excess
of $50,000. During the same period, the members of Association held membership
in, and/or subscribed to, various interstate news services, including, inter alia, the
Associated Press and the United Press, published various syndicated features,
advertised nationally sold products, and derived gross revenues from said publishing
operations in excess of $200,000.
On the foregoing admitted facts, I find and conclude that the Times and Associa-
tion are engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union admits and I find that it is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
As noted above, the complaint alleges that through its control over the hiring,
selection, and retention of composing-room employees of the Times and other
members of the Association, the Union caused Lawrence F. Cafero, a longtime
employee of the Times, to lose employment and employment opportunities by
placing his name at the bottom of the Times' seniority list, in violation of Section
8(b)(1)(A) and (2) of the Act. The General Counsel concedes that the Union's
control of hiring and layoff is not, in itself, an unfair labor practice. He asserts,
however, that the implementation of that control by the Union in the case of Cafero,
was a violation of the Act.
A. The Union's control over hiring and layofl at the Times
The composing-room employees of the Times and the other employee members
of the Association are represented for collective=bargaining purposes by the Respond-
ent Union. At the times material herein, the terms and conditions of employment
of composing-room employees were embodied in a contract between the Union
and the Association. The agreement provides, inter alia, that the Union is required
to furnish the Association's members with "as many skilled" employees as they need
"for the operation" of their composing rooms. It further provides that control over
hiring, direction of work, and discharge is vested in the general foremen who are
required to be members of the Union. However, when hiring, the foremen must
I The Respondent's counsel waived oral argument at the hearing, at the same time ex-
pressing a preference for setting forth the Union's contentions in a brief. Thereafter,
although the time for filing its brief was extended at the Respondent's request, none was
filed.
NEW YORK TYPOGRAPHICAL UNION NUMBER SIX, ITU 1561
recognize the priority of "regular situation holders." 2 Moreover, foremen are pro-
hibited from designating either the particular day or days, or the number of days,
which a regular situation holder or his substitute may work, or from selecting or
designating the substitute for the regular situation holder or his substitute when they
elect not to work. The contract also contains provisions for the retention of
"Priority During Necessary Absence," which shall be described and considered later
in this report.
Despite the contractual provision which vests control of hiring and layoff in the
general foreman of Association members, in practice, at least at the Times,3 the
general foreman has very little voice in the selection of the specific individuals who
are to be hired or laid off. According to the undisputed record, the procedure by
which employees are selected, hired, and laid off at the Times is as follows:
When an applicant seeks employment at the Times' composing room for the first
time, he is required to deposit his union membership card with the chapel chairman 4
at the Times, and to designate the particular classification of work which he is seeking.5
The chapel chairman records the applicant's name at the bottom of the list of sub-
stitutes for that classification and the date he first applied to work at the Times.
After an applicant registers for work at the Times, his union card remains on
deposit with the chapel chairman, and he cannot work for any other newspaper
unless he withdraws his card. Each week or two, the list, as revised by all current
changes .6 is printed by the chapel chairman and copies are furnished by him to
the general foreman. There is no evidence that the latter ever makes or suggests
any changes in the list, or has any control over the order in which names are listed
thereon by the chapel chairman. A copy of the list is also posted in the Times'
substitute room, where registrants shape up for possible employment, and regular
situation holders sign in when they report for work.
Hiring by the Times is done strictly in the order of priority on the list. At the
beginning of each "fiscal week," the foreman advises the chapel chairman of the
number of regular situations in each classification which he will require for that
week.? If such number, in any classification, is greater than the number of regular
situations used the week before, the chapel chairman designates those who will get
the new regular situations by placing the letters "Sit," an abbreviation of "situation,"
alongside the names of the top substitutes on the list. Conversely, when the number
of regular situations in any classification for the next fiscal week is a reduction from
the number used the week before, the chapel chairman marks on the list "situation
discontinued" alongside the names of the situation holders who are being laid off,
and these names are then put on top of the substitute list for that classification in
the order of their original registration.
Persons who are on the substitute list can secure work at the Times in one of the
following ways: (1) They can be designated by a situation holder to work in his
place whenever he desires to take off or cannot work because of illness or some
other cause. In such cases, the situation holder notifies the chapel chairman that
he will not "cover" his situation and designates the name of the substitute whom
he wishes to fill his place. Such a designation can be made by a situation holder
without following the priority order of the substitute list. Upon receiving such
notification, the chapel chairman places the name of the designated substitute along-
side the name of the situation holder whose place he will fill. (2) If a situation holder
does n( t designate a specific substitute to fill his position, or if he merely does not
show up for work without notifying the chapel chairman,8 the latter d ,signates th, top
substitute on the priority list for that classification to fill the situation. (3) Finally,
substitutes on the priority list can secure employment when the newspaper de-
cides that it requires additional employees to meet its requirements for one or more
2 A regular situation is defined as a workweek of 5 full days
S Practically no testimony was adduced at the hearing in respect to the hiring practices
in the composing rooms of other members of the Association Accordingly, I conclude
that the General Counsel has failed to establish that at the establishments of members of
the Association other than the Times, the Union controls hiring, selection, and retention
of composing-room employees, as alleged in paragraph 10 of the complaint.
A The chapel chairman is the Union's representative
'The various classifications are: Linotype operators, admen, makeup men, machinists,
proofreaders, and a few others.
9 Changes in the list occur as a result of death, retirement, resignations, and from the
accretion of new registrants According to Chapel Chairman Hopkins, the list also changes
when members are classified by the Union as "not at trade." The significance of this term
will be later explained
See footnote 2, slcpra.
8In the vernacular of the trade, this is known as a situation going "dark."
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days (not exceeding 3 in any fiscal week) .9 In such cases, the foreman notifies
the chapel chairman of the number of such "extras" that will be required in each
classification, and the latter designates the substitutes who will perform that work
in the order of their priority on the list, from among those who are available in the
substitute room.
On occasions when there are not enough substitutes available at the Times, either
to fill its request for extras or to cover "dark" situations, the chapel chairman calls
his counterpart at other newspapers represented by the Union, to see if there are
any unemployed substitutes available in the needed classifications. When and if
such employees are located, they report to the chapel chairman. According to
Hopkins, the Times' chapel chairman, he takes them to the foreman and says, "this
is a man going to work for us now," the new man "signs a sheet," and "goes to work."
All of the foregoing clearly discloses that the Times does not control 10 the selec-
tion of the specific individuals who work in its composing room, and that in prac-
tice, such control lies in the chapel chairman, the Union's representative. As the
Times' General Foreman Karl Schmidt frankly testified, he and his department heads
decide how many employees will be required, the chapel chairman is advised of
these requirements, "and the [chapel] chairman, if he has them available, hires
them . . . the physical hiring . . . is left to the [chapel] chairman. I request so
many people and it is up to him to get it [sic] for me or explain why he doesn't ... .
B. Respondent's revocation of Cafero's priority employment status
The Charging Party, Lawrence F. Cafero, has been a member of the Respondent
Union since 1946. Since that date, he has also worked for the Times as a proof-
reader on the night shift. When he originally registered for employment at the
Times, Cafero deposited his union card with the Union's chapel chairman, and was
placed by the latter at the bottom of the proofreaders' substitute seniority list. As
a substitute proofreader, Cafero worked only as an "extra" when additional proof-
readers were needed by the Times, or as a substitute when a regular Times' situation
holder was absent. By March 27, 1948, Cafero's position on the seniority list
improved to such an extent that he acquired priority status as a regular situation
holder. In the latter capacity, work was always available to Cafero whenever he
reported.
For the past 13 years, in addition to his night job at the Times as a proofreader,
Cafero also had a regular daytime position, for 7 years as a teacher in the New York
City school system, for 3 years as an assistant principal of the Ponus Ridge Junior
High School in Norwalk, Connecticut, and thereafter as the principal of that school.
Cafero still held the latter position when the hearing in this proceeding was held.
In 1959 Cafero worked only 71 shifts at the Times. In February 1960 Cafero
advised the Union's then secretary-treasurer, James McCann, that he had a regular
outside occupation," and inquired of McCann regarding the minimum number of
days which he was required to work in order to maintain his priority status. Ac-
cording to Cafero's uncontroverted and credited testimony, McCann replied that
Cafero should work at least "a semblance of time" but would be required to pay
"full dues on a full working week scale," and that "if you [Cafero] pay your full
dues,12 you will have priority." Thereafter, Cafero paid "full dues" as instructed
by McCann, and he worked 88 shifts in 1960, 110 shifts in 1961, and 77 shifts in
1962 before July 17, when the Union revoked his priority as hereinafter described.
According to Cafero's credited testimony, when he did not work at the Times, it was
not because of any conflict in the hours of employment of his two jobs, but to devote
some time to leisure activities.
On July 3, 1962, a story appeared in the Times that vandals had violated the
property of the Ponus Ridge Junior High School, and that Cafero was the principal
of the school which had been thus abused. On seeing this news item, some of
Cafero's fellow employees at the Times questioned him about the propriety of his
holding a priority situation at the newspaper while working in an "outside" "activity."
Accordingly, about July 5, 1962, Cafero discussed this question with Thomas Kopeck,
6 When more than 3 days of work in any fiscal week will be required, the paper is re-
quired by the Union's contract to create additional "regular situations."
11 The extent of the Times' control in respect to the selection of employees appears to be
limited to rejecting new employees who fail to pass a competency test, to determining the
number of employees who will be utilized, and on occasion, also subject to priority rules,
to transfer employees to different departments and shifts
u Cafero did not tell McCann what the outside occupation was.
'a With minor exceptions not material here, the Union's dues for "active members" is in
part based upon a percentage of earnings.
NEW YORK TYPOGRAPHICAL UNION NUMBER SIX, ITU 1563
the Union's current secretary-treasurer. Kopeck advised Cafero that he would do
nothing about Cafero's dual occupations since he had not received any formal com-
plaint concerning it. Similarly, Chapel Chairman Hopkins also told Cafero that
he intended to do nothing about his priority situation but would follow whatever
ruling was made by "union headquarters." About a week later, Kopeck telephoned
Cafero at the Times, told him that a number of Times' employees had complained
about Cafero's priority, and said that he had some formal questions to ask. In
response to Kopeck's questions, Cafero readily disclosed that he had another posi-
tion "outside of the Union," that he was a "principal of a junior high school," and
that he worked at that position every day. Kopeck then advised Cafero that he
would have to reclassify him as "not at trade" and notify the Union's president,
Bertram Powers. A few days later, Cafero was advised that Union President
Powers wanted to see him, and an appointment was arranged for the afternoon of
July 17, 1962. On that date, Cafero visited briefly with Secretary-Treasurer Kopeck
at the Union's headquarters and there received personal delivery of the following
letter:
Mr. LAWRENCE CAFERO.
JULY 17, 1962.
DEAR MR. CAFERO: Please be advised that you have been classified "Not at
Trade" based upon your admission that you are employed full-time in another
occupation.
This decision is based upon Section B6 of the Dues Circular issued by order
of the Executive Council February 1, 1962.13
Fraternally,
(S) Thomas W. Kopeck,
THOMAS W. KOPECK,
Secretary -Treasurer.
All of the witnesses agreed that in respect to dues, the classification of "N A.T."
or "not at trade" meant that Cafero would thereafter be required to pay dues based
on full union scale for full weeks, whether worked or not, and in addition thereto,
a percentage of his actual earnings at the printing trade. According to Union
President Bertram Powers, the purpose of the "not at trade" classification is to
equalize the amount of dues and assessments paid by members who do not work
regularly at the printing trade with those members who work full time at the trade.
because all members are eligible for the same pension.
After receiving the above letter from Kopeck, Cafero went to President Powers'
office where he had a conversation with Powers in the presence of Union Vice Presi-
dent David Crockett . There is a significant conflict in the record in respect to what
was said during this conversation . Powers' version was that he first ascertained
from Cafero : ( 1) that the latter had a full -time outside occupation as a school
principal ; (2) that Cafero had not worked at his Times job for a total of more than
90 working days during the preceding 12 months ; ( 3) that he then notified Cafero
that under section 33(f) of the contract between the Union and the Association,14
"The Dues Circular of the executive council of the International Typographical Union,
AFL-CIO, according to its preface, is an official interpretation of article IX, the dues pay-
ing provisions of LTD's constitution, "to assist local secretaries in collection of the
amount required by the law of the Union " Section B-6 of the Dues Circular provides as
follows:
Members Regularly Employed at Other Occupations Who Accept
Employment at the Printing Trade
0-Members regularly employed at other occupations who accept employment at the
printing trade are required to pay the assessments upon earnings at the printing trade
in addition to assessments required of members classified as "NA T." (Adopted
January 10 , 1945.)
Members who have full -time employment at other occupations are classed as
`"N A.T." and are not eligible for employment at the printing trade except with per-
mission of proper officers of the local union when all available substitutes are em-
ployed. (Adopted April 9, 1942. ) [Emphasis supplied.]
Section 33(f) of the contract provides as follows:
Priority During Necessary Absence
(f) A situation holder or substitute having established priority standing may en-
gage in pursuits other than composing room work for a period not to exceed 90 days
in any twelve month period without loss of situation or priority ; provided employees
exercising this privilege shall employ the priority substitute competent to perform the
work.
14
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cafero had forfeited his right to hold a priority situation; and (4) that he then called
the Union's chapel chairman at the Times and instructed him to notify the foreman
that in Powers' opinion, Cafero was not entitled to priority and should be stricken
from the priority list pursuant to Section 33 (f) of the contract.
According to Cafero, however, Powers neither asked him how many days he had
worked in any year, nor did he volunteer that information; Powers never referred
to or even mentioned the contract between the Union and the Times during their
conversation; and Powers did not tell him that the revocation of his priority was
based on section 33(f) of the contract. Cafero's version of the conference was
that Powers told him that he had been advised by Secretary-Treasurer Kopeck that
Cafero had been classified as " not at trade" for dues-paying purposes, and that in
Powers' opinion, Cafero had been using his priority status as a convenience. Powers
asked Cafero if he had anything to say about that. Cafero replied that he had
been working in accordance with Secretary-Treasurer McCann's instructions that
his priority would be retained "in good standing" as long as he paid dues on full
week's earnings and worked "a semblance of time." Cafero further told Powers that
he regarded what he did during his "off hours" as none of the Union's business, and
that the Union's contemplated action was a violation of his "individual rights as a
citizen." Powers responded that Cafero's outside activities was the Union's business,
and that in view of his "not at trade" classification by the secretary-treasurer,
Powers had no alternative but to remove Cafero's priority in accordance with the
Dues Circular 15 Cafero then asked Powers to defer his action until the following
day, but Powers refused saying that it would be unfair to the top substitutes at the
Times that evening. Powers then telephoned the chapel chairman at the Times in
Cafero's presence and told the chairman to remove Cafero's name from the priority
list.
I conclude from the record and exhibits that Cafero's version of the July 17
conversation with Powers should be credited, and conversely, that Powers' testimony
is not worthy of much reliance. My reasons for this conclusion are as follows:
1. I am not persuaded that Powers either discussed Section 33(f) of the contract
with Cafero, or acted to remove Cafero's priority pursuant thereto, because it quite
clearly was not applicable to Cafero's situation. In this regard, the heading to
section 33 "Priority During Necessary Absence," 16 quite apparently, appears to
refer to employees who are unable to work because of some conflicting duty or
condition. A reading of the other subsections of section 33 makes this quite
evident, for they deal with the retention of the priority of employees who are
"engaged" in serving the Union or its parent ITU, employees who cannot work
because of illness, employees who are admitted to the Printers Home, or who are
serving in the Armed Forces, etc. In this context, subsection (f) quite obviously
applies to the priority of persons who must absent themselves from their jobs at the
printing trade in order to engage in other "pursuits." 17 As found above, the hours
of Cafero's "outside pursuit" did not conflict with his composing-room job, and his
absences were not required by, or for the purpose of engaging in, his other occupation.
2. In his own signed brief to the executive council of the Y.T.U. on Cafero's
intraunion appeal from the removal of his priority, Powers clearly disclosed that
his action in revoking Cafero's priority was based on I.T.U.'s Dues Circular and
not the contract with the Times.18 In this regard, the brief stated: (a) that Cafero
had been classified by the secretary-treasurer as "not at trade"; 19 (b) that this
classification was based on Cafero's "full-time" 20 employment "as a school teacher,"
(c) that after confirming the facts upon which the classification was based, Powers
"instructed" the chapel chairman at the Times, "to remove Mr. Cafero's name from
the Union's priority list at his chapel"; (d) and that "this Union's action was based
15 See footnote 13, supra
16 Emphasis supplied.
17 This interpretation of section 33 (f) is
Dues Circular which provides:
further supported by section A-8 of IT U.'s
Temporarily In Other Pursuits
8-Members exercising the privilege provided in Section 4, Article VI, General Laws
(the counterpart in ITU's Laws of Section 33(f) of the contract), and absenting
themselves from an office in which they hold situations or have established priority
to engage in an outside pursuit are required to pay per capita and the assessments
upon the maximum scale for the period of their absence. [Emphasis supplied 1
18 See General Counsel's Exhibit No. 9-C
19 The term "not at trade" does not appear anywhere in the contract
20 The term "full-time" appears in section B-6 of the Dues Circular, but not in section
33(f) of the contract.
NEW YORK TYPOGRAPHICAL UNION NUMBER SIX, ITU 1565
on interpretations" of I.T.U.'s constitution "by the Executive Council" "as published
in the Dues Circular," section B-6, hereinbefore quoted.
3. Although Union Vice President Crockett was present during the July 17
meeting between Cafero and Powers, he was not called as a witness by the Union,
and no explanation was offered for the failure to do so. In view of the conflict in
the testimony of Powers and Cafero as to what was said at the July 17 meeting,
the failure of the Union to call Crockett suggests the inference, which I draw, that
his testimony would not have supported Powers' testimony, either that he discussed
with Cafero Section 33(f) of the contract, or that he advised Cafero that the revoca-
tion of his priority was based on the contract 21
4. In respect to the reason for the rescission of Cafero's priority, Chapel Chairman
Hopkins, a witness for the Union, testified, "I was told [by Powers] to go and tell
the foreman that since Mr. Cafero was reclassified as `not at trade,' he could no
longer hold priority." Thus, according to Hopkins' testimony, Powers' decision was
not based on the contract, but on the Union's classification of Cafero.
In the light of the foregoing, and my independent appraisal of Cafero as a
reliable witness, I credit Cafero's testimony that there was no reference to the
contract by Powers during their July 17 conversation, and I conclude that Powers
told Cafero that he was rescinding his priority because he had no other alternative
in the light of Cafero's "not at trade" classification by the secretary-treasurer.
Cafero's credited version of what occurred that afternoon following his confer-
ence with Powers was as follows: Cafero went to the Times substitute room, where
Chapel Chairman Hopkins asked him whether he knew that he was now a "not at
trade" member and had no priority. Cafero replied that he had just been so apprised
by President Powers. Then the daytime Vice Chapel Chairman David Kaltz spoke
to Cafero and the latter reported Powers' decision to him. Kaltz then said that in
view of Powers' decision, he would have to put a substitute on for Cafero for the
remaining 4 days of the week, which Kaltz did by putting the name of a substitute
alongside Cafero's name on the priority list.
Chapel Chairman Hopkins testified that after the telephone call from Powers,
he notified Acting Foreman Rafelli that Cafero could no longer hold his priority
because he had been reclassified as "not at trade," and that Rafelli told Hopkins
to put on a substitute for Cafero "for the rest of the week." Hopkins further testified
that a priority substitute who was available was designated to fill Cafero's job. On
cross-examination, however, Hopkins was unable to recollect whether a substitute
was put on to fill Cafero's job before or after he spoke to Rafelli. Moreover, Rafelli
was not called to corroborate Hopkins' testimony that the substitution was made
pursuant to the foreman's instructions, and no explanation was offered for Re-
spondent's failure to do so. I am persuaded by the record that I cannot credit
Hopkins' testimony, either that he was instructed to notify the foreman of the
change in Cafero's priority status, or that the change in that status in any way
resulted from an action of the Times or its foreman. My reasons for this conclusion
are as follows:
1. Powers' instruction to Hopkins, according to Powers' brief to I.T.U.'s execu-
tive council on Cafero's intraunion appeal, was only "to remove Mr. Cafero's name
from the Union's priority list at his chapel," and contained no reference to notifying
the foreman.
2. In view of the Union's exclusive control over the priority list and the designa-
tion of specific employees to work in the Times' composing room, there would be
no reason for Hopkins to tell -the foreman that Cafero's priority had been revoked,
and no necessity for receiving instruction or permission from the foreman to put on
a substitute for Cafero.
3. Quite obviously, if the employment of a substitute for Cafero was an act which
Hopkins performed pursuant to the foreman's instruction and not Powers'. Hopkins
would certainly have remembered that he designated a substitute for Cafero after
he spoke to the foreman. Hopkins' inability to recall whether he did so before
or after he spoke to Rafelli, forcefully suggests that Hopkins' action was taken
pursuant to Powers' instruction, and not by reason of any direction from the foreman.
4. The failure to call Rafelli to corroborate that Hopkins notified Rafelli regard-
ing the change in Cafero's status, and that the foreman instructed Hopkins to put on
a substitute for Cafero, suggests the inference, which I make, that if called, Rafelli
would not have corroborated Hopkins in this regard.22
a'2 Wigmore on Evidence ( 3d ed .) § 285 ; N.L R , B v. Wallick and Schwalm Company,
et al., 198 F. 2d 477, 483 (C.A. 3) ; Whitin Machine Works, 100 NLRB 279, 286; Detroit
Plastid Products Company, 121 NLRB 448, 499.
22 See footnote 21, supra.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. In this regard, i. is also significant that in notifying Cafero that a substitute
was replacing him for the rest of that week, Vice Chapel Chairman Kaltz stated
that it was being done "in view of" President Powers' decision, and made no refer-
ence to any instruction from the Times or its foreman.
6. Finally, I credit Cafero's testimony, corroborated by the statement of Powers
in his brief to I.T.U.'s executive council, that the instruction to Hopkins was simply
and only to remove Cafero's priority, and did not include notification to, or the
securing the consent of, the foreman.
For all the foregoing reasons, I conclude that Hopkins was not instructed by
Powers to tell the foreman regarding the change in Cafero's priority, that he did not
do so, and that the action taken in respect thereto was the unilateral action of the
Union pursuant to the I.T.U.'s Dues Circular.
Since a substitute was thus working "for Cafero" for the balance of that week,
Cafero was not permitted to work that week either at the Times or at any other
newspaper Under his new "not at trade" classification, according to section B6
of the Dues Circular, Cafero can only secure employment after all other substitutes
who are seeking work are hired. As a consequence, on one occasion in November
1962, when four regular proofreaders failed to show up at the Times, Cafero,
although looking for work that night, could not be utilized because there were no
jobs for two admen and two makeup men who were seeking work in their own
respective categories. The foreman of the proofreaders, Albert Rompff, commented
at that time, "'It is amazing, we need workers and here is one [Cafero] competent to
fill the job, but he is unable to do the work." 23 After July 24, 1962, Cafero, pur-
suant to the suggestion of Union Vice President Crockett that there was greater
opportunity for proofreader work at the New York Daily News, sought and obtained
some employment at the latter newspaper. However, in September 1962, Cafero
again sought employment at the Times. On some occasions, he obtained work, and
on others he did not. Between September 8, 1962, and March 30, 1963, all the
New York City newspapers, with some exceptions not material here, have been
on strike. Since the end of the strike, there has been a greater demand for proof-
readers, and Cafero has been able to secure employment whenever he sought it.
As a consequence of Cafero's reclassification and loss of priority, in addition
to his loss of employment and employment opportunities, Cafero has also lost his
right, as a regular situation holder under the contract, to 15 days of paid vacation
each year, a benefit he previously had enjoyed.
C. Additional findings
It is quite evident that the Union' s rules in respect to retention of priority and
classification of members are not universally or consistently interpreted or applied.
Secretary-Treasurer McCann, with knowledge that Cafero had "a regular outside
occupation," did not, as Secretary-Treasurer Kopeck later did, apply a "not at trade"
classification to Cafero, or affect his priority status z4 Moreover, in July 1962,
although they had knowledge that Cafero, in addition to his proofreader position
at the Times, was also a school principal, both Secretary-Treasurer Kopeck and
Chapel Chairman Hopkins told Cafero that they would do nothing about his status
and classification unless a formal complaint was registered. In addition, the various
briefs submitted by Cafero and Powers in connection with the former' s intraunion
appeals from his classification and removal of priority ,25 show at least two instances
za This incident further emphasizes the complete control of the Union over hiring at the
Times
u There is no testimony regarding which union rule McCann relied on for this ruling,
but there is a provision in the Dues Circular ( section A-6 ) which is in evidence which
states as follows :
Part Time at Trade
6-Members who hold situations on which a part of their time is spent at the trade
and the remainder at work which is not under the jurisdiction of the union are re-
quired to pay the assessments upon a sum equal to what they would earn if working
full time at the printing trade . This applies also to members who work a portion of
the month at the printing trade and who during the remainder of the month employ
substitutes . . . for the purpose of engaging in work at another occupation over
which the union does not have jurisdiction.
Secretary-Treasurer McCann may have regarded this provision , rather than section B-6,
as applicable to Cafero , since the dues and assessments which he demanded of Cafero con-
formed with the requirements of this provision.
General 'Counsel 's Exhibits Nos. 9-A through 9-I.
NEW YORK TYPOGRAPHICAL UNION NUMBER SIX, ITU 1567
of persons who, like Cafero, had regular outside occupations but were not classified
as "not at trade." 26 In one of these cases, that of Thomas Dillon, a decisive factor
in the Union's decision appeared to be that his status "throughout the years" had
"been determined and approved by the Secretary-Treasurer's office, which automati-
cally protected his situation and priority." The same considerations also applied
to Cafero, who held priority and a regular situation for 14 years, and worked in
accordance with Secretary-Treasurer McCann's decision and approval from 1960
until 1962, but this was either overlooked or ignored by the Union in rejecting
Cafero's appeals. All of the foregoing discloses that Union officials clearly enjoyed
considerable discretion and latitude in whether or not, and how to classify persons
who worked at the trade and at outside occupations, and as to whether or not such
persons could retain their priority attained through years of service with the Times.
Thus, since the Union controlled who was hired and who worked at the Times,
through its exclusive control of the Times' priority list, employment at that paper
was also controlled by the vagaries of the Union's interpretation of its own rules.
In summary on the record herein, I have found or find as follows: (1) that the
Union controlled who was hired and who worked for the Times in its composing
room, by virtue of its control of the priority list which governs hiring and layoff;
(2) that the Union's officials enjoyed and exercised considerable discretion and
authority to classify employees as "at trade" or "not at trade," and to determine
whether employees could retain or not, the priority employment status which long
years of service for the Times had secured for them; (3) that such discretion and
authority was not limited to affecting the priority status of employees under any
provision of the contract, and included the implementation of union rules not
embraced in any contractual provision; (4) that in the exercise of said authority and
control, the Union, unilaterally, pursuant to its own rules, classified Cafero as "not
at trade" and revoked his priority status; (5) that this union action was based solely
on section B-6 of the Dues Circular of I.T.U.'s executive council, which provides,
inter alia, that members who are classified as not at trade because of "full-time"
other occupations, "are not eligible for employment at the printing trade except with
permission of proper officers of the local union when all available substitutes are
employed"; (6) that the Union's action against Cafero was not based on section
33(f) of the contract between the Times and the Union; (7) that the term "not at
trade" does not appear in the contract between the Times and the Union, and there
is no provision in said contract which is comparable to section B-6 of the Dues
Circular; (8) that pursuant to its reclassification of Cafero and revocation of his
priority status, the Union unilaterally designated a substitute to work on Cafero's
situation for the remaining 4 days of the week of July 17, 1962, and placed Cafero
on the bottom of the Times' seniority list for proofreaders; (9) that as a consequence
of the Union's action and rules, Cafero, an employee who had worked for the Times
for 16 years (14 as a regular situation holder), lost his job, vacation benefits, and
subsequent employment opportunities; and (10) that all the Union's actions in
respect to Cafero were engaged in, without consultation with, or instruction from,
the Times.
D. Conclusions
There remains for consideration only the legal question of whether the Union's
conduct, as found above, constitutes unfair labor practices as charged in the com-
plaint In resolving this question, it might be well to delineate the scope of the issue
to be determined. As previously noted, the General Counsel expressly disavowed
at the hearing any contention that the Union's control over hiring, employment, and
layoff at the Times is, in itself, an unfair labor practice. Accordingly, I shall not
attempt to consider that issue herein 27' Moreover, since this case involves only
the Union's implementation of its rules in respect to Cafero, who was a regular
as One was the case of Fiorite, who practiced law during the day, worked 4 nights a week
as a printer, and employed a substitute every Friday night. Despite his regular outside
occupation, the ruling in Fiorite's case was that he should be classified as "at trade." The
other was the case of Dillon, who, after an injury to his back in 1948 which did not in-
capacitate him after 1949, worked very infrequently at the printing trade (41, 57, and
14 days in 1955 to 1957, respectively), principally on premium paydays. During this
period, Dillon's primary source of income was from his employment as a singer. Neverthe-
less , a ruling to revoke Dillon's priority was reversed on appeal
^ In N L R B v News Syndicate Company, Inc, etc, 365 U.S 695, the Supreme Court
held that the hiring provisions of the contract involved herein were not, on their face, un-
lawful. However, the Court left open the question of whether, "in practice," the imple-
mentation of the agreement was unlawful. However, since the General Counsel does not
raise that issue here, I shall not attempt to determine it.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
situation holder at the Times for many years , I am also not here concerned with the
reasonableness or legality of the Union's rules in respect to initial hiring. Rather
as I view the narrow issue presented, it is whether the Union engaged in restraint
and coercion of employees within the meaning of Section 8(b)(1)(A) of the Act,
and discrimination which improperly encouraged or discouraged union membership
within the meaning of Section 8(b) (2) of the Act, by unilaterally withdrawing from
Cafero his regular situation and seniority pursuant to a union rule, not embraced
within the collective contract between the Union and the Times, and by thereby
causing Cafero to lose his regular situation at the Times, subsequent employment
opportunities, and vacation benefits.
Under the Act, the Union, as collective-bargaining representative, had a statutory
obligation to represent all its members fairly and without "hostility to any." 28 As
stated by the Supreme Court, "The bargaining representative [under the Act] .
owes complete loyalty to the interests of all whom it represents." 29 Viewed in the
light of the foregoing, it is fairly obvious that the Union's treatment of Cafero fell
far short of its obligation of fair treatment to all its members . Before the events
in issue, Cafero had been a member of the Union and worked for the Times for
16 years, for 14 years as a regular situation holder with priority status. For the
last 13 of those years, Cafero had a regular outside occupation, but this had not
affected his priority or regular situation status, notwithstanding that at least since
February 1960, the Union knew about his outside "pursuits." Although Cafero did
not work as often as other members perhaps did, he paid dues and assessment based
on the full Union's scale in the same manner as if he had worked full time at his
Times' job. Thus, he paid his full and fair share of the cost of the pension plan 30
To the extent that Cafero did not work regularly at his Times job, he had a right to
rely on the instruction of the Union 's officer that he need work only a "semblance of
time" as long as he paid full dues. Cafero's status , in respect to his outside occupa-
tion, was no different in July 1962, than it had been for the past 13 years, with the
single exception, that on the latter date his outside pursuit received publicity, and
members of the Union, who were substitutes because they had less seniority than
Cafero, complained . Despite such complaints , the Union's officials enjoyed con-
siderable discretion and latitude in the interpretation of the Union's rules , and were
under no compulsion to change Cafero's status . As noted above, in the case of
Dillon , although his principal income was from professional singing, and notwith-
standing his fewer working days at the printing trade, his priority and situation
were not revoked , principally because his status "throughout the years" had "been
determined and approved by the Secretary-Treasurer's office." The same factors
existed in Cafero 's case. Under the circumstances , elementary principles of equity
and estoppel would seem to indicate that the same determination should have been
made in Cafero 's case. Why a different determination was made is not clear from
the record.31 The fact is that Cafero's priority and regular situation were taken
from him by the Union, notwithstanding that he worked at the printing trade with
far greater regularity than Dillon . In view of these circumstances , the Union's action
in Cafero's case, quite apparently does not meet the standard of protection of the
interests of all represented employees , which the above cited court decisions adjure.
Moreover , the rule pursuant to which the Union acted against Cafero appears
unreasonable and unfair , insofar as it applies to members like Cafero who have
regular situations as a result of years of seniority . Such members are relegated to
the role of second class citizens, who not only must pay more dues and assessments,
when and if they work at the trade, than members who work only at the trade,
but in addition, the former can only work by permission of the Union's officers,
and then only when all substitutes , with less seniority , have secured employment.
Whatever might be said for a union rule which gives preference in initial hiring to
union members who have no other means of livelihood, it is quite another matter
when the rule, as applied to persons like Cafero, takes away seniority and priority
resulting from years of employment, and makes future employment subject to the
whim and good graces of the Union's officials. Such a rule, which casts members
like Cafero in the role of outsiders, clearly does not comport with the fair treat-
ment required of a bargaining representative toward all the employees whom it
represents.
28 Rester William Steele v. Louisville cE Nashville Railroad Co , etc., 323 U S 192 , 198-199.
sO Ford Motor Company v. Huffman, 345 U.S. 330, 338
90 As noted above, the reason advanced by the Union for its "not at trade" classification,
was to equalize the cost of the pension to members , since all received the same pension
81 Although admittedly pure speculation, the reason may have been that Cafero 's state-
ment to President Powers, that what be did during his "off hours" was none of the
Union's business , may have incurred the latter's resentment.
NEW YORK TYPOGRAPHICAL UNION NUMBER SIX, ITU 1569
Under the contract between the Union and the Times, the only seniority which is
recognized is that based on length of service-"persons last employed" are required
to be laid off first in a reduction in force and when the staff is increased, those laid
off are "reemployed in [the] reverse order in which they were discharged before
other help may be employed." However, under the Union's rule which was invoked
against Cafero, he was placed at the bottom of the seniority list, notwithstanding his
seniority based on length of service, only because he had "full4ime employment"
at another occupation. As already noted, the contract contained no comparable
provision.
Under Section 7 of the Act, Cafero had a protected right to refrain from adhering
to union rules without thereby affecting his job.32 The Union's action which was
taken against Cafero (revocation of his regular situation priority and seniority,
resulting in loss of work, and employment opportunities, and vacation privileges)
clearly constituted "economic coercion in its most effective form," 33 and thus was
restraint and coercion for engaging in that protected right. Since the Union's
action was not justified by the collective-bargaining agreement between the Union
and the Times,34 and was the product of an arbitrary, unfair, and invidious rule in
its application to persons like Cafero,35 I conclude that thereby the Union engaged
in unfair labor practices within the meaning of Section 8(b)(1)(A).
The term "to encourage or discourage membership in any labor organization"
in Section 8(a)(3) of the Act, has been held by the Supreme Court to include en-
couragement or discouragement of adherence to union rules or policies.36 The
nature of the discrimination against Cafero has already been described above, and
the fact that said discrimination affected his hire, tenure of employment, and terms
and conditions of employment, cannot be seriously questioned. As already noted,
the discrimination was not based on the contract. Indeed, in respect to Cafero's
loss of seniority, the discrimination was contrary to the terms of the contract which
recognized seniority only on the basis of length of employment. Thus, the words
of the Second Circuit Court of Appeals in the Miranda case, supra, is particularly
apposite here. In that case the court said,
Accordingly, we are compelled to conclude that . . . the agreement did not
justify any forfeiture of Lopuch's seniority rights; and the action taken in con-
flict with the agreement constituted a delegation of power over seniority rights
which improperly encouraged union membership and discriminated against the
employee Lopuch.
Similarly, in another analogous case 37 the Tenth Circuit Court of Appeals said:
The rule is clear: Where the insulation of the act between the rights of
employment and organization is pierced by the employer or union for the
enforcement of union rules, valid union security provisos excepted, no direct
evidence of specific intent to encourage membership in a labor organization is
required. The natural consequence of such on-the-job discrimination is to
strengthen the union control . . . [and] to encourage union membership in
direct contravention of Seciton 8(b)(2) and 8(b)(1) (A) of the Act. [Citing
Radio Officers, supra.]
Likewise, on its reconsideration of the Miranda Fuel case on remand,38 the Board
said:
... union membership is encouraged or discouraged whenever a union causes
an employer to affect an individual's employment status.
I am aware that this broad view of the Board has not met with the approval of the
Second Circuit Court of Appeals in its recent decision in N L.R.B. v. Local 294,
International Brotherhood of Teamsters, etc. (Valetta Motor Trucking).39 In that
case the court concluded that absent specific evidence that the Union's action was
12 N.L.R.B. v. The Radio Officers' Union, etc. (A. H. Bull Steamship Company), 196 F. 2d
960, 965 (C.A. 2), affd. 347 US. 17,,42; Brunswick Corporation, 135 NLRB 574, 577,
footnote 5.
38 N L R B v. Radio Officers' Union, etc, supra
N.L.R.B. v. Miranda Fuel Co , 284 F 2d 861 (C.A. 2).
Miranda Fuel Co., Inc, 140 NLRB 181.
26 Radio Officers' Union, etc. v. N L R B., 347 U S. 17, 39-42
' N.L.R.B. v. Brotherhood of Painters, Decorators & Paperhangers of America , etc., 242
F. 2d 477, 481.
sa 140 NLRB 181.
= 317 F. 2d 746.
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
based on union membership or activity of the discriminatee, specific evidence of
intent to encourage or discourage union membership was required to sustain a
violation of Section 8(b) (2). However, I am constrained to follow the Board's
decisions.40 Moreover, I believe that there are significant factual differences be-
tween this case and Valetta to warrant my contrary holding here. In this case,
unlike Valetta, the Union's rules established two classes of membership with disparate
rights and privileges-one for members who work only at the trade, quite another
and inferior status for those who also had outside occupations. The latter class
depended for employment on the approval of union officers, and the full employment
of members of the first. Clearly this encouraged membership in the one class, and
either discouraged membership in the other, or encouraged the promotion of the
good graces of the union officials who controlled their employment and reclassi-
fication to the preferred membership class. Since such were the natural and fore-
seeable consequences of the Union's actions, and since a person is presumed to intend
the foreseeable consequences of his acts, specific evidence of intent to encourage or
discourage membership in a labor organization was unnecessary.41 In view of the
above, I regard the instant case as more nearly analogous to the Second Circuit's
holdings in Gaynor News Co.,42 and Miranda Fuel from which I have quoted above.
I conclude, therefore, that the Union's action in revoking Cafero's regular situa-
tion and priority and in placing his name at the bottom of the Times' seniority list,
violated Section 8 (b) (1) (A) and (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in section III, above, occurring
in connection with the operations of the Times 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 commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Union has engaged in certain unfair labor
practices, I will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent Union caused the Times to discriminate against
Lawrence F. Cafero in violation of Section 8(a)(3) of the Act, by revoking his
regular situation status and priority, by placing his name on the bottom of the
seniority list, by hiring a substitute to work in his place, by thereafter giving Cafero's
regular situation and job to a substitute, and by thereby causing Cafero to lose his
regular job, employment opportunities, and vacation privileges, I shall recommend
that the Respondent immediately restore Cafero to his former standing on the
seniority list and to his regular situation and priority status before the discrimination,
and make him whole for any loss of pay (including vacation pay) he may have
suffered by reason of the discrimination against him, by paying him a sum of money
equal to that which he would have earned at the printing trade in his status before
the discrimination, from July 17, 1962, until the date when he is restored to his
former status and situation, less his net earnings at the printing trade during said
period, such backpay to be computed on a quarterly basis in the manner established
by the Board.43 I shall further recommend that the Respondent notify Cafero and
the Times that it has restored him to his priority and regular situation status, and that
it has no objection to his employment by the Times in accordance with that status
and with all the rights and privileges pertaining thereto.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Times is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Respondent is a labor organization within the meaning of Sections 2(5)
and 8 (b) of the Act.
40 Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company
of America), 119 NLRB 768, 773
"Radio Officers' Union, etc., supra
4=197F 2d719 (CA 2).
41F. W. Woolworth Company, 90 NLRB 289. Backpay shall Include the payment of
interest at the rate of 6 percent per annum to be computed In the manner set forth In Isis
Plumbing & Heating Co ., 138 NLRB 716.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 1571
3. By revoking Cafero's regular situation and priority status, by placing his name
on the bottom of the seniority or priority list, by hiring a substitute to work in
Cafero's place for the week of July 17, 1962, by thereafter transferring Cafero's
regular situation and job to a substitute, and by thereby causing Cafero to lose his
regular job, employment opportunities, and vacation benefits, the Respondent has
engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and
(2) of the Act.
4. The said unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
(Recommended Order omitted from publication.]
The Great Atlantic & Pacific Tea Company, Inc. and Retail
Clerks International Association, Local No. 1691, AFL-CIO
The Great Atlantic & Pacific Tea Company, Inc. and Meat
Cutters, Butchers, and Allied Food Workers, Local No. 327,
AFL-CIO. Cases Nos. 15-CA-2161 and 15-CA-2209. Novem-
ber 15, 1963
DECISION AND ORDER
. On July 10, 1963, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the General Counsel and the Respond-
ent filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and
Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the Trial Examiner's findings,' con-
clusions, and recommendations to the extent consistent herewith.
1. During the summer of 1962, the clerks at the Respondent's
Opelousas, Louisiana, retail store were organized by Retail Clerks
International Association, Local No. 1691, AFL-CIO, herein referred
to as the Retail Clerks. The Trial Examiner found, and we agree,
that the Respondent, during that union's organizational campaign,
violated Section 8(a) (1) of the Act by the following conduct: (a)
1 We find no merit in the Respondent's exceptions to the Trial Examiner's credibility
resolutions as the record establishes that they are not clearly erroneous. Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
144 NLRB No. 151.
727-083-64-vol. 144-100