Passaic County News Co., Inc.

National Labor Relations Board - Board Decisions

May 16, 1956

115 N.L.R.B. 1360 (N.L.R.B. 1956)

1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the authority of the Coca Cola, Gemsco, and Royal cases it is found that the
picketing of the Arnold plant by Local 50 induced and encouraged employees, to
strike or concertedly refuse to perform employment services for their employers.
It having already been concluded that that action was directed to an objective pro-
hibited by Section 8 (b) (4) (C) of the Act, it is further found that since November
16, 1954, the picketing was in violation of Section 8 (b) (4) (C).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Local 50 set forth in section III, above, occurring in connection
with the operations of the Arnold 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 commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Local 50 has engaged in certain unfair labor practices, it will
be recommended that it be ordered to cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
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. Arnold Bakers Employees Association and Local 50, Bakery and Confectionery
Workers International Union, AFL, are labor organizations within the meaning of
Section 2 (5) and Section 8 (b) (4) (C) of the Act.
2. On and since November 15, 1954, Arnold Bakers Employees Association has
been the exclusive bargaining representative , certified by the Board, of the employees
of Arnold Bakers, Inc., in an appropriate unit , in accordance with the provisions of
Section 9 of the Act.
3. Since November 16, 1954, Local 50 has induced and encouraged employees of
the Arnold Company and other employers to engage in a strike or other concerted
refusal in the course of their employment to perform services for their employer,
an object thereof being to require the Arnold Company to recognize or bargain
with Local 50 as the representative of employees of Arnold notwithstanding that
Arnold Bakers Employees Association had been certified as the representative of
such employees under the provisions of Section 9 of the Act. By such conduct
Local 50 engaged in unfair labor practices within the meaning of Section 8 (b) (4)
(C) of the Act.
4. 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.]
Passaic County News Co., Inc. and James G. Courtis
Newspaper & Mail Deliverers' Union of New York & Vicinity,
Independent and James G. Courtis . Cases Nos. 2-CA-441 and
2-CB-1541. May 16, 1956
DECISION AND ORDER
On February 8, 1956, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor 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 Union filed ex-
.ceptions to the Intermediate Report with a supporting brief. No
exceptions were filed by the Employer.
115 NLRB No. 216.
PASSAIC COUNTY NEWS CO., INC. 1361
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 Intermed-
iate Report, the Respondent Union's exceptions and brief, and the
entire record in these cases, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
A. The Respondent, Newspaper & Mail Deliverers' Union of New
York & Vicinity, Independent, its officers, representatives, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Maintaining or enforcing any working arrangement with Pas-
saic County News Co., Inc., or any other employer, whereby prefer-
ence in employment is granted to union members except in accordance
with Section 8 (a) (3) of the Act.
(b) Causing or attempting to cause Passaic County News Co., Inc.,
or any other employer, to deny regular, steady employment, or status
as regular situation holders to employees and prospective employees,
including specifically Courtis, because of their nonmembership in
Respondent Union except to the extent permitted by Section 8 (a) (3)
of the Act. = i
(c) In any like or related manner restraining or coercing employees
of, or applicants for employment with, Passaic County News Co., Inc.,
or any other employer, 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 organiza-
tion as a condition of employment as authorized by Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify in writing the Respondent Company Passaic County
News Co., Inc., that Respondent Union has no objection to the Re-
spondent Company granting Courtis or any other employee regular,
steady employment and status as regular situation holders even though
they are not members of the Respondent Union.
(b) Post at all its business offices and meeting places copies of
the notice attached hereto marked "Appendix A." 1 Copies of said
1In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
390609-56-vol. 115-'87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice to be furnished by the Regional Director for the Second
Region, shall, after being signed by duly authorized officers or agents,
be posted and maintained for a period of sixty (60) consecutive days.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for the Second Region signed
copies of the notice marked "Appendix B" for posting, the Respond-
ent Company willing, at its Paterson, New Jersey, plant, , in places
where notices to its employees are customarily posted. Copies of
said notice to be furnished by the Regional Director for the Second.
Region, shall, after being signed as above provided, be forthwith
returned to the aforesaid Regional Director.
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent Union has taken to comply therewith.
B. The Respondent Passaic County News Co., Inc., Paterson, -New
Jersey, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Maintaining or enforcing any working arrangement with Re-
spondent Union whereby preference in employment is granted to
members of Respondent Union.
(b) Discriminating against employees and prospective employees,
including specifically Courtis, in regard to their hire or tenure of em-
ployment or other terms or conditions of employment by denying to
Courtis or any other employee regular, steady employment and status
as a regular situation holder because of their nonmembership in Re-
spondent Union except as authorized by Section 8 (a) (3) of the
Act.
(c) In any like or related manner interfering with, restraining, or
coercing its employees or applicants for employment in the exercise
of their right to self-organization, to form, join, or assist labor organ-
izations , to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection , or to refrain
from any and all such activities, 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to James Courtis immediate status as a regular situation-
holder without prejudice to his seniority or other rights and privileges.
(b) Preserve and make available to the Board or its agents on
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,,
PASSAIC COUNTY NEWS CO., INC. 1363
and all other records necessary to analyze the amount of back pay
due.
(c) Post at its Paterson, New Jersey, place of business 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 duly authorized officers of the Respondent
Company, be posted and maintained for a period of sixty (60) con-
secutive days. Reasonable steps shall be taken to insure that said
notices, are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply therewith.
The Respondents above named, their respective officers, representa-
tives, agents, successors, and assigns, shall jointly and severally make
whole James Courtis for any loss of pay he may have suffered by rea-
son of the discrimination against him in the manner prescribed in
the section of the Intermediate Report entitled "The Remedy."
APPENDIX A
NOTICE TO ALL MEMBERS OF NEWSPAPER & MAIL DELIVERERS' UNION OF
NEW YORK & VICINITY INDEPENDENT, AND TO ALL EMPLOYEES OF
PASSAIC COUNTY NEWS 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 working arrangement
with Passaic County News Co., Inc., or any other employer, where-
by preference in employment is granted to union members except
in accordance with Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause Passaic County News Co.,
Inc., or any other employer, to deny regular, steady employment
or status as regular situation holders to employees and prospec-
tive employees, including specifically James Courtis, because of
their nonmembership in Newspaper & Mail Deliverers' Union of
New York & Vicinity, Independent, except to the extent permitted
by Section 8 (a) (3) of the Act. We have no objection to the
Passaic County News Co., Inc., granting James Courtis or any
other employee regular, steady employment and status as regular
situation holders even though they are not members of News-
paper & Mail Deliverers' Union of New York & Vicinity, In-
dependent.
WE WILL NOT in any like or related manner restrain or coerce
employees of or applicants for employment with the Passaic
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
County News Co., Inc., or any other employer, 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 employ-
ment as authorized by Section 8 (a) (3) of the Act.
WE WILL jointly and severally with Passaic County News Co.,
Inc., make James Courtis whole for any loss- of pay suffered as
the result of the discrimination against him.
NEWSPAPER'& MAIL DELIVERERS' UNION OF
NEW YORK & VICINITY, INDEPENDENT,
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.
APPENDIX B
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 that : .,
WE WILL NOT maintain or enforce any working arrangement
with Newspaper & Mail Deliverers' Union of New York & Vicin-
ity, Independent, whereby preference in employment is granted to
members of the said Union, except in accordance with Section 8
(a) (3) of the Act.
WE WILL NOT discriminate against any employees and prospec-
tive employees, including specifically James Courtis, in regard to
their hire or tenure of employment or other terms and conditions
of employment by denying James Courtis, or any other employee,
regular, steady employment and status as a regular situation
holder because of their nonmembership in Newspaper & Mail
Deliverers' Union of New York & Vicinity, Independent, except
as authorized by Section 8 (a) (3) of the Act.
WE WILL offer to James Courtis immediate status as a regular
situation holder without prejudice to his seniority or other rights
and privileges and jointly and severally with Newspaper & Mail
Deliverers' Union of New York & Vicinity, Independent, make
him whole for any loss of pay suffered as a result of the discrimina-
tion against him.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees or applicants for employment in
PASSAIC COUNTY NEWS CO., INC . 1365
the exercise of their rights to self- organization , to form, join,
or assist labor organizations , to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any and all such activ-
ities, 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.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named Union, or any
other labor organization, except to the extent that this right may be
affected by an agreement authorized in Section 8 (a) (3) of the Act.
PASSAIC COUNTY NEws 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by James G . Courtis, an individual,
herein called Courtis, the General Counsel of the National Labor Relations Board,
herein called respectively the General Counsel and the Board, by the Regional Director-
for the Second Region (New York, New York), issued his complaint dated October
17, 1955, against Passaic County News Co., Inc., and against Newspaper & Mail
Deliverers ' Union of New York & Vicinity, Independent, Respondents , herein called
respectively Respondent Company and Respondent Union, alleging that Respondent
Company had engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act as amended 61 Stat . 136, herein called the
Act, and that the Respondent Union had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (b) (1) (A)
and (2 ) and Section 2 (6) and (7) of the Act. Copies of the complaint , charges
and amended charges, and order consolidating cases, together with notice of hearing,
were duly served upon Courtis and the Respondents.
With respect to the unfair labor practices the complaint alleged in substance that:
(1) Since on or about December 10, 1954, Respondent Company has discriminated
and is discriminating against employees and prospective employees, including spe-
cifically Courtis, in regard to hire or tenure of employment or other terms or condi-
tions of employment by denying to Courtis regular , steady employment and/or
status as a regular situation holder and/or his seniority rights with Respondent
Company because of his nonmembership in Respondent Union; being a party to an
agreement and/or arrangement and/or understanding and/or practice with Respond-
ent Union whereby preference in hiring and/or employment and/or employment
rights has been and is granted to members of Respondent Union; and persons have
been denied employment and/or status as regular situation holders and/or seniority
rights with Respondent Company because of nonmembership in Respondent Union;
(2) Respondent Union since on or about December 10, 1954, by its officers, agents,
organizers , and representatives has caused and/or attempted to cause Respondent
Company and other employers to discriminate against employees and prospective
employees , including specifically Courtis, in regard to hire or tenure or other terms
or conditions of employment by causing Respondent Company to deny to Courtis
1366 DECISIONS OF - NATIONAL- LABOR RELATIONS BOARD
regular,, steady employment and/or status, as a regular situation holder'. and/or his
seniority rights with Respondent Company because of his nonmembership in Respond-
ent Union;- and being- a party to an agreement and/or arrangement and/or under-
standing and/or practice with Respondent Company., and with other employers
and/or causing Respondent Company and other such employers to be similar parties
whereby preference in hiring and/or employment and/or employment rights has
been and is granted to members of Respondent Union; and persons have been denied
employment and/or status as regular situation holders and/or seniority' rights with
Respondent Company and/or with other employers because of nonmembership in
Respondent Union; and, (3) by, each of these acts the Respondent Union violated
Section 8 (b) (1) (A) and (2) and the Respondent Company violated Section
8 (a) (1) and (3) of the Act. I '
Respondents' answers duly filed, generally denied the commission of any unfair
labor practices. Pursuant to notice a hearing was held at New York, New"York,
on December 5, 1955, and January 4 and 5, 1956, before a Trial Examiner duly desig-
hated by the Chief Trial Examiner.' The General Counsel and the Respondents were
represented by' counsel and participated in the hearing. Full opportunity to-examine
and cross-examine witnesses and to introduce evidence bearing upon the issues was
afforded all parties. The parties were given opportunity to present oral argument
before the Trial Examiner and also to file briefs, proposed findings of fact, and
conclusions of law. The General Counsel argued orally and all parties waived the
filing of briefs. Respondents' motions to dismiss the complaint which were not
ruled on during the hearing are disposed of in accordance with the following findings
of-fact and conclusions of law. Upon the entire record in the case, and from his
observation of the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
T Respondent Passaic County News Co., Inc., is and has been at all times herein
a corporation by virtue of the laws of the State of New Jersey . It maintains its
principal office and place of business in the city of Paterson, State of New Jersey,
herein called the Paterson plant, where it is now and has been Continuously engaged
in the wholesale distribution of newspapers, magazines , periodicals, and related
products. In the course and conduct of its business operations during the past
year Respondent Company caused to be purchased, transferred, and delivered to
its Paterson plant newspapers, magazines , and other periodicals valued in excess
of $1,000,000 of which such products valued in excess of $800,000 were transported
to said 'plant directly from States of the United States other than the State of New
Jersey. During the same period Respondent Company caused to be sold and
distributed from its Paterson. plant products valued in excess of $1,000,000 of
which products valued in excess of $100,000 were shipped from said plant directly
to States of the United States other than the State of New Jersey. Respondent
Company's answer does not deny the allegations of the complaint dealing with
commerce. Under the -Board's Rules and Regulations Section 102.20 such allega-
tions -are deemed to be admitted to be true. Counsel for the Respondent Union
stipulated at the hearing that the Respondent Company was engaged in commerce
within the meaning of the Act. I find that Respondent Company is engaged in
commerce within the meaning of the Act. -
if. THE LABOR ORGANIZATION INVOLVED
. Newspaper & Mail Deliverers' Union of New York & Vicinity , Independent, is a
labor organization admitting to membership employees of Passaic County News
Co., Inc.
M. THE UNFAIR LABOR PRACTICES
John Fylstra, president and general manager of the Respondent Company, testified
"that its employees work around the clock to perform the operations of the Company
in, delivering newspapers, magazines, and related products. In its employ the
Respondent Company has a number of employees known as regular situation holders
who have steady jobs and who report at a given time at the start of their workday
,and leave at a given time at the end of their workday. Fylstra testified that the
1 On December 5, 1955, Trial Examiner John H . Eadie heard a motion for an adjourn-
ment at the outset - of the bearing, granted the same, and did not participate further in
the hearing. -
PASSAIC COUNTY NEWS _CO.. INC. -1367
distribution of newspapers and magazines varies from day - to day. In, order to
'carry on its operation - the Respondent Company finds it necessary to hire . eniployees
-known as "extras" in addition to the regular situation holders. The work- of extra
employees is of a casual or intermittent nature ' and normally , they are 'hired on a
-day-to-day basis from a shapeup . - ' I - I
"
I _- "
Respondent Company ^ is' a member of the ' Suburban Wholesalers ,Association, a
group of wholesale distributors of newspapers , magazines, periodicals, and related
products who jointly negotiate collective -bargaining agreements - with the 'Respohdent
Union . The existing collective -bargaining contract betweenthe,parties has been in
force since February 1, 1955 , and is due to expire on January 31, 1957?' '
` In -the early part of 1955 , William Walsh ' was elected business . agent of the
Respondent Union to ' cover the New Jersey area . -Shortly thereafter he made the
first ' of several visits to the Respondent Company 's plant where he talked with
Fylstra and other supervisors regarding grievances and the hiring of.extra employees.
-Thus Fylstra testified that Walsh told him a 'few-times that a union card gives a man
,the right to go to work first , with no other 'qualifications . John Smith , Respondent
Company's day foreman , whose duties consist of issuing orders 'to employees and
,the hiring of extra help for the delivery department testified that in June 1955
in a conversation with Walsh in the Respondent Company 's garage the latter said
"Whenever possible [he] wanted me to use union men." Smith replied, "I am a
union man myself ." Alexander Herald , night foreman for the Respondent Com-
pany who hires extra employees for night work, testified that in or about March
1955 Walsh in a conversation with him in connection with the hiring of extra help
said "Union men comes [sic] first." Herald agreed with Walsh. It should be
noted that the foremen and assistant foremen in the employ of the Respondent
Company, all of whom have hiring duties with respect to extra help, are members
of the Respondent Union.
It appears , from the record that in or about Decoration Day 1955 , a misunder-
-standing developed between the Respondent Union and the Respondent Company
over the failure of the Respondent Company to hire Philip Goldberg, a union mem-
i Section 6 of the contract labeled - "Seniority" provides among other things the
following : ,
6-a. An employee receiving 5 days or 5 nights work in each calendar week over
a period of 5 consecutive weeks shall be deemed to be a regular situation holder with
the Wholesaler and shall be listed accordingly.
6-b. As of the effective date hereof , all employees , including foremen and assistant
foremen, holding regular situations with the Wholesaler shall be arranged in a
seniority and priority list in accordance with their length of service with such
Wholesaler.
6-c. All persons not on the list of regular situation holders as hereinabove defined
shall be known as extras , and shall be hired for extra work in accordance with the
rules and sequence thereof as hereinafter set forth :
1. Regular extras shall be given first opportunity for extra work when avail-
able.
2 Regular extras shall consist of all persons other than regular situation hold-
ers who have performed at least 500 days of work in behalf of such Wholesaler
from January 1, 1945 up to and including January 24 , 1951. January 1, 1945
shall be the commencement date for all seniority referred to in this contract.
6-d. All other persons applying for work shall be known as irregular extras and
shall be hired in the following sequence :
1. Men who previously had employment in the industry as regular situation
holders and who are now unemployed . They shall be given work in the order of
their total seniority in the industry from the seniority date, but no man shall
be permitted to exercise his right under this rule in more than one shop.
2. Men who are regular situation holders elsewhere in the industry. They
shall be assigned work first on the basis of the number of days of work pre-
viously actually performed for the Wholesaler requiring extra work and secondly
on the basis of their total, seniority in the industry from the seniority date.
3 Men who are on the regular extra list of other employers in the industry.
They shall be assigned work first on the basis of the number of days of work
previously actually performed for the Wholesaler requiring extra work, and
secondly on the basis of their total seniority in the industry from the seniority
date.
4. Other competent persons making application therefor to the foreman on the
basis of the total number of days of employment, in the industry from the senior-
ity date.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber, for extra work, before it hired a nonunion man. Goldberg had been shaping
at Respondent Company's shop for several years. As a result Walsh called at
the Respondent Company to discuss the matter with Fylstra. Present also were
Alexander Herald, Respondent Company's night foreman, Louis Vitale, assistant
night foreman, and Joseph Giacommara, shop steward, for Respondent Union.
Fylstra testified that during the discussion Walsh said that regardless of anything
else union men were to go to work first and he "didn't want to know nothing else."
At a subsequent adjustment board meeting, set up under the collective-bargaining
contract, regarding the Goldberg incident, attended by Fylstra and Julius Kass,
attorney for Respondent Company, and Walsh and Joseph Simons, president of
the Respondent Union, Walsh reiterated that union members have to be given
priority for extra employment and requested the Respondent Company to co-
operate with the Respondent Union to maintain present hiring conditions and hire
in the manner prescribed by the Respondent Union. There was also some talk
relative to an extra employee working a 5-day week for 5 consecutive weeks which
would Make such employee a regular situation holder according to the definition
in the c6ntract.3 Simons told Fylstra that some other wholesalers did not permit
nonunion extra employees to work more than 4 weeks of 5 days each week in order
to break their seniority. It was Simons' desire that Respondent Company follow
it similar procedure.
The Respondent Company's practice in the hiring of extra help followed pretty
much the dictates expressed by Walsh to Fylstra and the other supervisors who
participated in such hirings. It was the testimony of Smith, George Herald, Alex-
ander Herald, and Vitale, the foremen of Respondent Company, that union' mem-
bers appearing in the shapeup are assigned to work before nonunion men, regard-
less of their respective seniority in shaping at the Respondent Company's shop .4
In the event that new men appeared in the shapeup who never were at Respondent
Company's shop before, the foremen inquired if the new man had a union card,
and if such new man presented one, he was assigned to extra work before any
nonunion man, no matter how long such nonunion man had been shaping at the
Respondent Company's shop. Herald testified that a number of new men shaped
up at Respondent Company's shop during 1955 including among others Chick
Naughton and Harry Ferguson.
It was also the testimony of the Respondent Company's foremen that when
they inquired if the new men had union cards, they did not ask whether they were.
regular situation holders with other wholesalers, or whether they had lost a regu-
lar situation elsewhere, or what the status of their seniority was under the collec-
tive-bargaining contract.5
James Courtis, the charging party herein, is not a member of the Respondent
Union. He commenced his employment with the Respondent Company in 1945
as an extra worker in the delivery department where his job consisted of picking
up and delivering newspapers and periodicals. In 1946 he was called into the
armed services where he spent approximately 71h months. He did not return to
Respondent Company's employ until September 1953. Courtis testified that since
September 1953 and up until the time of the hearing he has appeared regularly
at the Respondent Company's shapeup either during the day or at night and in fact
there were times when he shaped days and nights in order to obtain work. In
1953 Courtis worked 55 days, in 1954 either 230 or 232 days, and in 1955 about
220 days. Courtis testified that 1953 was the first year he worked 5 days a week
for 5 consecutive weeks and since then he has repeated the 5 x 5 B on numerous
occasions. In spite of this Courtis has not achieved the status of a regularl,situa-
tion holder, nor does the Respondent Company consider him to be a regular situa-
tion holder. Fylstra admitted that Respondent Company does not always ob-
$ See footnote 2
* The record also reveals that in addition it is the Respondent Company's policy to hire
the senior shaper among union members and where only nonunion men are in the shapeup
the same policy prevails. -
6In this ' regard it is noted that Alexander Herald and Fylstra testified that in hiring
extra men , even though they adhered to the policy as outlined above of giving jobs to
union members first, it was based on their understanding of the collective -bargaining con-
teact. However, Alexander Herald testified further that he did not recall whether or
not he mead the existing contract, that he could not state the contents of its hiring provi-
sions, and that the only thing he was certain about was that union men should be given
preference.
6 As it is known in the industry.
PASSAIC COUNTY NEWS , CO., INC. 1369
serve the mechanical 5 x 5 standard defined in the collective-bargaining contract to
make extra employees regular situation holders. He testified further that so far
as the Respondent Company was concerned working 5 days a week for 5 con-
secutive weeks is not the only qualification considered to make an extra worker a
regular situation holder.
- From June 16, 1955, to the date of the hearing Courtis, as noted above, continued
to shape up regularly 7 at Respondent Company's shop. On approximately 35
occasions during this-period Respondent Company's fdieinen hired men for extra
work who were union members and denied employment to Cdurtis. Courtis testified
that in or about June 1955 and thereafter he inquired of Foremen Smith; Vitale,
and Alexander Herald why certain men were being preferred in employment for
extra work and their answers were the same, "they are union men." Indeed, Fylstra
admitted that Courtis was not assigned to work on a number of occasions because
union men were given priority of employment over him and in spite of the fact
that Courtis had shaped with the Respondent Company longer than some of the
union men who displaced him. Courtis also testified that he inquired of Giacommara
why he could not get extra work before some of the union men, particularly since
some of them were regular situation holders with other wholesalers. Giacoinmara
replied that such men had preference over him because they had union cards.
Conclusions
The record establishes without contradiction that from early 1955 when Walsh
made known to the -Respondent Company's general manager and foremen that
"union men comes first" for work at the Respondent Company, the Respondents were
parties to and enforced a working arrangement whereby preference in employment
has been and is being granted to members of the Respondent Union. By maintaining
such discriminatory arrangement and also by applying such discriminatory conditions
with respect to Courtis, who haring worked 5 days a week for 5 consecutive weeks
on numerous occasions and in accordance with the definition of the existing collec-
tive-bargaining agreement between the parties was "deemed to be a regular situation
holder Lwith the wholesaler] and shall be listed accordingly," 8 Courtis was denied
regular, steady employment and status as a regular situation holder.
Counsel for the Respondent Union and the Respondent Company defended the
actions of the Respondents on the ground that even though persons may have been
hired in preference to Courtis it was done in accordance with the "seniority" pro-
visions set up in section 6 of the contract. As heretofore found, several Respond-
ent Company's foremen testified- without contradiction that in giving effect to the
Respondent Company's hiring practice, union members had absolute preference for
work over nonunion workers and they neither asked nor considered the seniority
status of men in the shapeup. The short and concise answer to this defense was
aptly expressed by the General Counsel during oral argument, "you cannot cloak
by a contract, by seniority provisions in a contract, an absolutely discriminatory hir-
ing practice." Moreover as the Board recently stated in the J. Brodsky & Son case,
114 NLRB•819, where the respondent union was also involved with a similar contract
as the one in the instant case, ". . . the Employer acted without regard to any of
the contract provisions, that any reference its representatives might have made to
the contract at the time of the events was but a mere pretext to cover its truly dis-
-criminatory motivation, and that the contract cannot now serve as a defense against
the clear proof of the commission of unfair labor practices."
From the foregoing and the record as a whole I find that the Respondent Union
violated Section 8 (b) (1) (A) and (2) of the Act and Respondent Company violated
Section 8 (a) (1) and (3) of 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 activities of Respondent Passaic County News Co., Inc., set forth 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.
4 The record reveals that from November 24, 1955, to December 2, 1955, Courtis was
away, and on December 31, 1955, he did not appear at the shapeup.
6 Section 20 of the contract provides as follows : "This contract contains all the terms
and agreements between the parties with reference to hours , wages and working condi-
tions.. . . 11
1370 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices I
will recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. -
It has been found that Respondents maintained and enforced a discriminatory work-
ing arrangement whereby Respondent Union caused Respondent Company to grant
preference in employment to members of Respondent Union and by applying such
discriminatory conditions Courtis was denied regular , steady employment and
status as a regular situation holder in violation of Section 8 (b) (1) (A ) and (2)
and (8 ) (a) (1) and (3) of the Act . Accordingly I will recommend that the Respond-
ents cease and desist from giving effect to the unlawful provisions of their arrange-
ments and understandings and from engaging in unlawful hiring practices there-
under.
The record shows that Courtis is still employed by Respondent Company as an
extra worker and as such , it is incumbent upon him to attend the shapeup regularly
in order to obtain employment for the day . On numerous occasions he complied
with the contractural requirements for a regular situation holder and should have
received formal recognition of such status together with the emoluments of such
status but for the discrimination engaged in by the Respondents . Accordingly I
will recommend that Respondent Company grant Courtis status as a regular situation
holder . It will also be recommended that Respondents jointly and severally make
whole Courtis for any loss of pay incurred by him on - those occasions when he
was denied employment by Respondent Company because of nonmembership in
Respondent Union . Since the record is lacking in some essential details in order
to arrive at a precise determination in this regard , the matter can be determined at
the compliance stage.
The General Counsel requested that a broad cease and desist order be issued
herein against the Respondent Union to be applicable not only to Respondent Com-
pany but to other employers as well . As the General Counsel pointed out during
oral argument the contract in evidence in the instant matter is not only between the
Respondent Company and Respondent Union but also between a multiemployer
group of which Respondent Company is a member . Indeed a similar contract is
presently in force between Respondent Union and another employer group. See
J. Brodsky & Son, supra , Additionally the record reveals that the president of Re-,
sponddent Union, Simons, told Fylstra of the plan 611 other wholesalers to prevent
extra workers from attaining the status of regular situation holders , and attempted
to persuade Fylstra to go along with this plan.9 I will recommend in accordance with
the 18oard 's Decision and Order in the Daugherty Company, Inc., case, 112 NLRB
986, that Respondent Union cease and desist from maintaining and enforcing illegal
working arrangements with other employers and from causing or attempting to cause
such other employers to discriminate against employees in violation of the Act.ia
However, the restrictions thus imposed upon the Respondent Union are not in-
tended to apply to any employer over whom the Board will not assert jurisdiction1=
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
I make the following:
CONCLUSIONS OF LAW
1. Passaic County News Co., Inc., is engaged in commerce within the meaning of
Section 2 (6) and ( 7) of the Act.
2. Newspaper & Mail Deliverers ' Union of New York & Vicinity , Independent,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. By maintaining and enforcing a discriminatory working arrangement whereby
preference in employment was granted members of Respondent Union and by
causing Respondent Company to deny Courtis regular , steady employment and
status as a regular situation holder because of his nonmembership in the Respondent
The Board within the past several months has issued cease and desist orders against
respondent union in cases of J. Brodsky & Son, supra, and Union County News Dealers,
Supply Co., 114 NLRB 1575.
1O International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, AFL, Local 179 , 110 NLRB-287, 289; cf. N. L. R. B . v. Empress Publishing Com-
pany, 312 U . S. 426, 436-7. -
n Sterling Furniture Company, 105 NLRB 653 on remand from N. L. R. B . v. Sterling
Furniture Company, 202 F. 2d 41, 44-45 ( C. A..9).. The Board's prevailing standards for
the assertion of jurisdiction are indicated in Jonesboro Grain Drying Cooperative, 410
NLRB 481, and other reported decisions.
HERMAN M: BROWN 'SERVICE ' COMPANY 1371
Union, the latter -has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and (2) of the Act and the Respondent Company
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
- 4. The unfair labor practices found herein - are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Herman M . Brown Service Company and District Lodge 118,
International Association of Machinists , AFL-CIO, and Local
90, General Teamsters and Truck - Drivers, Helpers and Ware-
housemen, AFL-CIO,' Joint-Petitioners. Case No. 18-RC-2709.-
May 16, 1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before L. C. Howg, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case the- Board fmds :
1. Herman M. Brown Service Company, hereinafter referred to
as Service Company, installs and services heavy construction machin-'
cry which is sold by Herman M. Brown Company, hereinafter re-
ferred to as Sales Company. Sales Company purchases and sells con-
struction machinery pursuant to exclusive franchise agreements with
10 to 12 leading manufacturers of such machinery.' Service Company
not only prepares such machinery for use by the purchasers but also
services such machinery. It also stocks parts which it -purchases
from the same 10 or 12 manufacturers with which Sales Company has
exclusive statewide franchises, and sells these parts as part of its
general repair services.
Herman M. Brown Company was originally a sole proprietorship
engaged primarily in the sale of construction machinery. Iii about
1950 -it 'decided -to expand its service operations, and in order to place
the service' department on a self-supporting basis it was decided to
form two corporations, the corporation referred to herein as Sales
Company and the corporation referred to herein as Service Company."
Herman M. Brown is president'of 'both corporations, Ben Brown,
Herman's brother, is vice president of both corporations, William D.
Sampson is. treasurer of both corporations, and Archie Rhoden is
secretary, of both corporations. -Both corporations have their main
office in Des Moines, Iowa, in, the same-building, a• building owned by
Sheridan Realty Company, a company in which Herman-M. Brown"
1 The Joint Petitioners' names appear as amended at the bearing.
115 NLRB No. 214.