The Herald Co.

National Labor Relations Board - Board Decisions

Mar 3, 1970

181 N.L.R.B. 421 (N.L.R.B. 1970)

THE HERALD CO. 421
The Herald Company and Building Service
Employees , International Union , Local No. 200,
AFL-CIO
The Post Standard Company, Inc. and Building
Service Employees, International Union , Local No.
200, AFL-CIO
The Herald Company and Syracuse Mailers Union
No. 73. Cases 3-CA-2992, 3-CA-3193, 3-CA-3240,
3-CA-3390, 3-CA-3486, 3-CA-3557, 3-CA-3283,
and 3-CA-3179
March 3, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 20, 1969, Trial Examiner Thomas F.
Maher issued his Decision 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 Trial Examiner's Decision.
Thereafter, the Respondent and the Charging Party
filed exceptions and briefs, the Respondent filed an
answering brief and a supplemental memorandum.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed.' The
Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the supplemental
memorandum, and the entire record in this case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner insofar as
they are consistent with this Decision and Order.
'Respondent 's request for oral argument is hereby denied as the record,
the exceptions and briefs adequately present the issues and positions of the
parties
The Respondent excepts to the refusal of the Trial Examiner to permit
it to litigate the employee status of the distributors in the unfair labor
practice proceeding. We find that such refusal was properly denied, as the
issue has been previously considered and decided by'the Board by our
denial of review of the Regional Director 's Decision and Direction of
Election on November 14, 1967, and by our denial of review of the
Regional Director's Supplemental Decision certifying the Union as the
collective-bargaining agent in an appropriate unit of the Respondent's
distributors on February 12, 1968, in Case 3-RC-3965
Upon reexamination of the entire record and briefs and exceptions in
Case 3-RC-3965, and the Respondent 's exceptions and brief, and
supplemental memorandum in the above proceeding , including offers of
proof of alleged newly discovered , or previously not available evidence, we
reaffirm our adoption of the Regional Director 's Decision and
Supplemental Decision in these matters . We again conclude that the
Respondent maintains control over the manner and the means of the work
and the results to be achieved of the distributors involved herein and that
such distributors are employees of the Respondent and are not independent
contractors
The following inadvertent errors in the Trial Examiner ' s Decision are
corrected TXD, second sentence, last paragraph of section IV, J, 4,
1. We agree with the Trial Examiner that the
Respondent placed an unlawful condition on
bargaining in negotiating with the Syracuse Mailers
Union No. 73, the exclusive bargaining
representative of Respondent's mailing room
employee, regarding the addition of situation
holders. We find that the Respondent's conditioning
bargaining with the Mailers upon its agreement not
to seek the placement of Frey in the mailroom dealt
with working conditions, a mandatory subject of
bargaining, and that the condition was illegally
motivated. However, in finding that the Respondent
so qualified its agreement to add new jobs in the
mailroom, we rely upon the credited testimony of
Chapel Chairman Lanza and Union President
Stone. Although, unlike the Trial Examiner, we do
not rely upon the testimony of Respondent's
President Rodgers in this regard, we find that
Rodger's admissions, as set forth in the Trial
Examiner's Decision, support the Trial Examiner's
credibility findings and conclusions. Therefore, we
adopt the conclusions of the Trial Examiner that
Respondent thereby refused to bargain with the
exclusive representative of its mailroom employees
in violation of Section 8(a)(5) and (1) of the Act.3
2. The Trial Examiner found that the Respondent
at all times between June 24, 1966, and January 23,
1968, the date the Building Service Employees
International Union, Local No. 200, AFL-CIO, was
certified as the majority representative of the
Respondent's distributors, the Union represented a
majority of the distributors on the basis of valid
authorization cards. He further found that the
Respondent's conduct, as set forth in his Decision,
of refusing to recognize the Union's majority status
or to bargain with it on behalf of the distributors
since June 24, 1966, was violative of Section 8(a)(5)
and (1) of the Act. The Respondent contends that
the Trial Examiner's findings which are based upon
events occurring more than 6 months prior to
February 29, 1968, the date that a charge alleging a
specific violation of Section 8(a)(5) was first filed,
are barred by Section 10(b) of the Act. The
Respondent points out that the original unfair labor
practice charge filed on July 12, 1966, and
subsequent amendments thereto, as well as other
charges filed, referred specifically and inferentially
only to alleged Section 8(a)(1) and (3) violations,
and that a violation of Section 8(a)(5) can be
founded only upon the February 1968, charge. We
agree with the contentions of the Respondent.
Accordingly, we find that the Trial Examiner's
findings based upon events occurring more than 6
months prior to February 29, 1968, are barred by
Section 10(b) of the Act and are hereby overruled.,
"time" should be "property", TXD, in 33, second sentence, "July 12,
1967," should be "July 12, 1966"
'Cf N L R B Y. Wooster Division of Borg-Warner Corp, 356 U S 342
'See Knickerbocker Mfg Co, 109 NLRB 1195, 1196-67; N L R B v.
/BS Mfg, Co, 210 F 2d 634 (C A 5)
181 NLRB No. 62
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, as the Union was certified as the
majority representative in an appropriate unit of
employee-distributors on January 23, 1968, pursuant
to a Board-conducted election, we find in agreement
with the Trial Examiner, that the Respondent's
refusal to recognize the Union's majority status, or
to bargain with the Union since the date of its
certification, violated Section 8(a)(5) and (l) of the
Act. Consequently, our overruling the findings of
the Trial Examiner of Section 8(a)(5) violations
prior to the Union's date of certification does not
affect the Trial Examiner's ultimate finding that the
Respondent has refused to bargain with the Union
as the exclusive bargaining representative in the unit
of employee-distributors found appropriate by the
Board or the remedy provided in his Decision.'
3. By way of remedy, the Trial Examiner
recommended, inter alia, that the Respondent
reinstate the contracts of those distributors against
whom the Respondent was found to have
discriminated, and "to make them whole" for such
compensation as they may have lost as the result of
Respondent's discrimination against them. The Trial
Examiner also recommended that the Respondent
make whole those employees from whom promotion
money and other compensation was discriminatorily
withheld. The Charging Party in its exceptions and
brief has requested clarification of the meaning of
the make whole requirement as it applies to certain
discriminatees, and to provide for those benefits that
would have inured to the distributors had the
Respondent not failed to bargain in good faith. We
agree with the Charging Party that the make whole
requirement includes adjustments such as promotion
money and subsidies withheld from discriminatees
Malvasi and Smith, whose territories were in a
deteriorating condition, the same as was paid to
nonunion adherents in similar situations. We find
that this issue was fully litigated and closely related
to and contained within other matters alleged in the
complaint, and that the discriminatory treatment of
Malvasi and Smith in this regard was violative of
Section 8(a)(1) and (3) of the Act. However, the
make whole requirement is not intended to include
either the 2-cent increase which was given to some
distributors and not other distributors when the
Respondent raised its newspaper price, or
reimbursement to those distributors who were
'In view of our decision herein , we find it unnecessary to, and do not,
pass upon the validity of the authorization cards used as a basis to support
the Trial Examiner's finding that the Union enjoyed majority status on and
after June 24, 1966 Nor do we find it necessary to pass upon the validity
of the Trial Examiner 's bargaining order based upon such authorization
card showing to the factual situation herein
The Trial Examiner found that certain specific instances of Section
8(aX5) and ( 1) violations occurred on and after June 24, 1966, the date he
found the Respondent was obligated to bargain with the Union To the
extent that the Respondent has engaged in such conduct after the Union's
certification on January 23, 1968, e g., unilateral promulgation of new and
revised contracts, the withholding of promotion money , refusing to bargain
regarding inserts, the cancellation of "turkey awards" without prior
consultation with the Union , we affirm the Trial Examiner's findings in
this regard.
charged for failure to deliver newspapers on
Thanksgiving Day 1965, since there is no showing
that the Respondent's treatment of distributors in
these matters was discriminatorily motivated. We
also deny the Charging Party's request for remedies
beyond those provided by the Trial Examiner
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that Respondent,
The Herald Company, Syracuse, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as so modified:
Footnote 58 should be amended to read as
follows:
"In the event this Order is enforced by a
judgment of the United States Court of Appeals, the
words in the notice reading `Pursuant to the
Recommended Order of a Trial Examiner of the
National Labor Relations Board' shall read `Posted
pursuant to a Judgment of the United States Court
of Appeals enforcing an Order of the National
Labor Relations Board.' "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon charges
filed between July 12, 1966, and July 16, 1968 by Building
Service Employees International Union, Local 200, herein
referred to as Local 200 or the Union, against The Herald
Company, and the Post Standard Company, Inc , referred
to herein collectively as Respondent, and a charge filed on
March 3, 1967 by Syracuse Mailers Union No 73,
referred to as the Mailers, against The Herald Company,
the Regional Director for the Third Region of the
National Labor Relations Board, herein called the Board,
on December 29, 1967 issued a consolidated complaint
against the Respondent herein and thereafter, on August
5, 1968, issued a further complaint against Respondent,
which, pursuant to my order at the hearing, was
consolidated with cases then before me for hearing.
Therein it was alleged that the Respondent had violated
Sections 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended (29 U.S.C., sec 151 et seq ),
herein called the Act. In duly filed Answers Respondent,
while admitting certain allegations of the complaint,
denied the commission of any unfair labor practices.
Pursuant to notice a trial was held before me on
various days in June and September 1968 in Syracuse,
New York, where all parties were present, represented by
counsel and afforded full opportunity to be heard, to
present oral argument, and to file briefs with me. All
parties filed briefs on or about November 15, 1968.
Upon consideration of the entire record, including the
briefs filed with me, and specifically upon my observation
THE HERALD CO. 423
of each witness appearing before me,' I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE ISSUES
1. The single employer status of the The Herald
Company and Post Standard Company, Inc.
2. The status of the Association as a labor
organization.
3 The employee status of the distributors as
determined in a related representation case
4. The agency or supervisory status of William
Dempsey.
5 Evidence of interrogation, threats, promises of
benefits, implied surveillance, solicitation of surveillance,
promulgation of a no-solicitation rule, solicitation of
withdrawals from the Union, warning of refusal to
bargain and the solicitation of individual agreements, as
unlawful interference, restraint and coercion.
6 Termination of distributors' agreements as
discriminatory discharges.
7 Withholding of loans, bonuses, promotion money
and subsidies as unlawful discrimination.
8 Majority status of the association and the Union
based upon authorization cards.
9. Effect of Board certification of the Union upon
Respondent's refusal to bargain.
10 Unilateral actions as refusal to bargain
11. Imposition of condition that Joseph Frey not be
hired as an unlawful refusal to bargain
12. Creation of new job situations as a bargainable
issue.
Ii. THE BUSINESS OF THE RESPONDENT
The Herald Company, is admitted to be a New York
corporation. The Post Standard, according to stipulations
of the parties and the undenied testimony of Stephen
Rogers, president and publisher of the Herald Company,
is an operating division of the Herald Company Each is
engaged in the printing, sale and distribution of
newspapers and related products at their plant in
Syracuse, New York, and hold membership in or
subscribe to interstate news services, publish syndicated
features and advertisements of nationally sold products,
from which each derives an annual gross revenue in excess
of $500,000. Upon the foregoing I conclude and find that
Respondents The Herald Company and The Post
Standard Co , Inc , are engaged in commerce within the
meaning of the Act.
With respect to the relationship of the foregoing
Respondents as employers of the individuals involved
herein a determination in this respect has been made by
the Regional Director in his decision of July 19, 1968, in
The Herald Company and Building Service Employees
International Union, Local No 200, AFL-CIO, Case
3-RC-3965.2 Therein it was determined that the employees
for whom the petitioning union sought representative
status, being those distributors in the instant proceeding
whose bargaining representative is alleged to have
requested and been refused recognition and bargaining by
II have considered the testimony of all witnesses , including those whose
testimony I neither accept nor refer to In evaluating the testimony of each
witness I have relied specifically upon his demeanor and have made my
findings accordingly And while, apart from considerations of demeanor, I
have taken into account inconsistencies and conflicting evidence, my failure
to detail each of these is not to be deemed a failure on my part to have
fully considered it Bishop and Malco , Inc, 159 NLRB 1159, 1161
the Herald Company,' were neither independent
contractors nor supervisors as claimed by their employer,
but employees within the provision of Section 2(3) of the
Act. Upon the authority of this determination as it relates
directly to Respondent's refusal to bargain with the
representative of these individuals whose status had been
litigated,' I conclude and find that the distributors of The
Herald Company are employees within the meaning of the
Act.
It has been stipulated and agreed between the parties
that distributors of The Post Standard Co , Inc. have
duties identical to those of The Herald Company and are
subject to identical direction and control I accordingly
find and conclude that these distributors are also
employees within the meaning of the Act.
From the credited testimony before me there is
evidence of common ownership in the person of Mr. S I.
Newhouse, unified management and common direction
with a centralized and identical labor policy administered
under the direction and control of President Rogers.
Moreover, the newspapers published by each are printed
at a common plant facility and the Sunday edition of the
newspaper has since May 1965 comprised a combined
single edition. Accordingly, I conclude and find that the
two organizations constitute a single. employer for all
purposes in this proceeding.'
Ill. THE LABOR ORGANIZATIONS INVOLVED
It is admitted by the parties and I accordingly conclude
and find that Building Service Employees International
Union, Local No 200, AFL-CIO, and Syracuse Mailers
Union, No. 73 are each labor organizations within the
meaning of Section 2(5) of the Act.
The Newspaper Distributors Association, herein called
the Association, was an organization of the Respondents'
distributors whom the Board, in Case 3-RC-3965 has
determined to be employees within the provision of the
Act.' It is evident from the testimony I have credited
herein and the admissions of Respondents' officials,
including President Rogers, that the Association, prior to
its merger with Local 200, sought to represent its
members in negotiations and discussions with the
Respondents with regard to working conditions and terms
of employment. I therefore conclude and find that the
Association meets the requisite statutory criteria and is a
labor organization within the meaning of Section 2(5) of
the Act
'By order dated November 14, 1967, the Board denied the Employers'
request for review of the Regional Director's Decision and Direction of
Election Thereafter, following the receipt and consideration of further
briefs in the matter, the Board , on December 4, 1967, denied the
Employers' Motion to Reconsider its earlier denial of request for review
Pursuant to the aforesaid Decision and Direction of Election an 4lection
was held in which Local 200 was selected by a majority of the Employers'
distributors On January 23, 1968, the Regional Director issued his
Supplemental Decision overruling the Employers' objection to conduct
affecting the results of this election , and on February 12, 1968, the Board
denied the Employers ' request for review of the Regional Director's
Supplemental Decision
'Cf N L R B v Sagamore Shirt Co 365 F 2d 898 (C A D C)
'Pittsburgh Plate Glass Co v N L R B, 313 U S 146, 162, N L R B v
Sagamore Shirt Co. supra, N L R B v Union Brothers Inc 403 F.2d
883, 887 (C A 4)
'Upon my conclusion herein that the Respondents are a common
employer and having found as I have herein (infra ) that there is a single
thread of illegal motivation centered in the common management of the
enterprise I deny Respondent's Motion for Severance of the several cases
before me
'See infra
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE UNFAIR LABOR PRACTICES
A. Introduction
The dispute with which this proceeding concerns itself
was generated by the contested status of the distributors
whose function it is to distribute the Respondents'
newspapers. These distributors are in the following
categories: City Distributors, Motor Route Distributors,
Street Sale Distributors, Suburban Distributors and
County Distributors.
After considerable hearing and litigation growing out of
efforts on the part of the distributors to organize
themselves and to be represented for the purpose of
collective bargaining it was determined in Case
3-RC-3965, contrary to the position of Respondent, that
these were not independent contractors nor supervisors as
claimed, but employees Accordingly, the Regional
Director in his decision of July 19, 1967, directed an
election be held to determine the representation of these
employees in a bargaining unit appropriate for the
purposes of collective bargaining described as follows
All city, motor route, street sales, country and suburban
distributors employed by the Employer at Syracuse, and
the central New York area, but excluding all other
employees, office clerical employees, guards,
professional employees and supervisors as defined in the
Act.
Thereafter on January 4, 1968, an election by mail ballot
was held in which 63 of the 109 distributors selected Local
200 as their bargaining representative. The Regional
Director, after considering timely objections to conduct
affecting the results of the election, and rejecting
allegations that there was additional and newly discovered
evidence that would affect his earlier determination,
certified Local 200 as the bargaining representative of the
distributors in the unit described above. The Respondent
thereafter filed with the Board its petition for review of
the Regional Director's action and a motion for
reconsideration, each of which was denied by the Board.
The matter was further pursued in the U.S. District Court
which refused to enjoin the Union's certification. This
refusal by the Court was thereafter sustained by the U S.
Court of Appeals for the Second Circuit in The Herald
Co. v Vincent, 392 F.2d 354.'
It is apparent from the record that Respondent has
never become reconciled to the distributors' efforts at
self-help nor to the resolution of the attendant legal issues
'During the course of the hearing before me counsel for Respondent
made repeated effort to inject the issue of the employee status of the
distributors For the well settled reason that such an issue, fully litigated in
a representation proceeding , may not thereafter be relitigated in a
subsequent unfair labor practice case which concerns the identical subject
matter, in the same context , I refused testimony , after full opportunity for
legal argument in support of such relitigation Offers of proof have since
been provided me and are incorporated in the record After review of these
I am persuaded that my original rulings excluding the evidence was
correct I accordingly reject the offers and reaffirm my rulings N L R B
v Sagamore Shirt Company, 365 F 2d 898, 904 (CA, D C ), National
Van Lines, 123 NLRB 1272, 1273, fn 4, Pittsburg Plate Glass Co v
NLRB,313US 146,158
Upon Order to Show Cause served upon all the parties, no valid cause
being presented , the Regional Director 's Decision and Direction of Election
and his Supplemental Decision and Certification of Representation in Case
3-RC-3695 have been incorporated into the record of this proceeding and
are reproduced as Appendix A and Appendix B, respectively , of this
Decision
in their behalf. On the contrary, a climate of contentiol
has pervaded all aspects of the relationship betweei
management and employees and what follows herein wil
be an effort, gleaned from the credited testimony in thi
record, to describe this situation in objective perspective
One further aspect of Respondent's contention with it:
employees and their certified bargaining representative;
must be noted As the controversy involving thi
distributors persisted, a further aggravation developed it
the mailing room of The Herald over job assignments anc
seniority allocation under the current contract in forct
between Syracuse Mailers Union No. 73 and Respondent
This dispute concerned itself with alleged discrimination of
a one-time emp)oyee in the mail room, Joseph Frey, Sr.
who subsequently became a distributor and involved in the
disputes in that area. Because of this relationship and the
interrelated overtones touching each of the two areas of
contention (infra) I permitted the continued consolidation
of cases involving each issue and denied Respondent's
motion to sever. A review of the record reaffirms my
belief that these cases are inextricably connected and I
now reaffirm my rulings in this respect.
B. The Distributors
Although it has been conclusively established upon an
extensive record in Case 3-RC-3965 that the distributors
are employees and not independent contractors and that
this status has been determined after full study of the
duties they perform it would nonetheless contribute to the
better understanding of the case if the duties of these
employees and relevant working arrangements were
summarized at this point without in any way suggesting a
correction, condition or limitation upon any finding in this
area previously made by the Regional Director and
accepted by the Board. (See Appendices A & B)
Actual distribution of the paper to the subscriber is
accomplished either by carrier boys who deliver the paper
to the home or by drivers who deliver by auto. The latter,
known as motor route distributors, primarily deliver to
subscribers in rural and suburban areas placing a
prewrapped newspaper, the "stick", in a,tube located at
the curb of the street or road. These are known as "stick
routes". Motor route men also have carrier boys to whom
they distribute newspapers for home delivery.
The city distributors maintain their distribution to
carriers by delivery to various carrier locations and by
operating one or more stations to which carrier boys
report for their papers The suburban and rural
distributors operate in much the same fashion over a
wider area. And finally, the street sale distributors operate
in the city, servicing news stands, stores and hotels
All of the distributors whose locations permit operate
what are known as honor boxes. These are unmanned
street corner newspaper facilities where a slotted box, the
honor box, is located to receive the purchaser's payment
for the paper Because not all of the customers respect the
basic spirit of these boxes it has been found that the
income from them must be supplemented to compensate
the distributor for his loss. This compensation is referred
to throughout the decision as the "honor box subsidy."
The maintenance of circulation is a matter of prime
concern to management To accomplish this various
promotional devices have been used over the years.
Among these were contests among the carrier boys,
bonuses, and at Thanksgiving time the awarding of
turkeys to those reaching or exceeding their quota To
THE HERALD CO
support these incentives management provided what is
referred to as promotion money
The distributor operates within his assigned territory
under what is referred to as a franchise As explained in
considerable detail in the representation case Decision and
Direction of Election (infra Appendix A) a franchise
takes the form of a contract with the individual distributor
setting forth the terms and conditions of his employment
With the approval of management it may be, and as we
shall see, frequently is the subject of sale to qualified
applicants for distributorships Because the contract and
franchise arrangements are so much a part of the overall
subject matter of this case further consideration of them
will be reserved for discussion at a more appropriate place
in this decision
C The Self-Organization of the Distributors
For a number of years the Newspaper Distributors
Association comprised only the distributors who had
carrier boys, then known as City District Distributors In
May 1965 the Association was reorganized to include all
the distributors who wished to loin and William J Irving
was elected president Elmer Wili, Tony Viggiano and
Cornelius Schwartz were elected vice president, secretary
and treasurer, respectively By-laws were drawn up
sometime in July During the first week in June 1966
affiliation with Local 200 was first discussed Joseph Frey,
Sr, a distributor, communicated with representatives of
Local 200 with a view to arranging such an affiliation and
shortly thereafter a special meeting of the Association was
called for June 16, 1966, at the Yates Hotel, in downtown
Syracuse At this meeting affiliation with Local 200 was
discussed at great length and the membership of the
Association thereupon voted unanimously to join the
Union Following this action officers of Local 200 who
had been present during the meeting distributed among
the 48 Association members present application cards for
membership in Local 200 which also included the signer s
authorization to the Union to represent him in collective
bargaining negotiations with Respondent The card reads
as follows
Form S- I
APPLICATION FOR MEMBERSHIP
Building Service Employees ' International Union
Local Union No 200
I hereby request and accept membership in the Bldg
Service Int'l Union, Local 200 AFL-CIO, and
authorize said union to represent me and, in my behalf
to negotiate and conclude any and all agreements as to
wages, hours and other conditions of employment This
full power and authority to act for the undersigned
supersedes and cancels any power and authority
heretofore given to any person or organization to
represent me I agree to be bound by the Constitution
and By-Laws, and the rules and regulations of the
International and the Local, and by any contracts that
may be in existence at the time of this application or
that may be negotiated by the Union
Date
Signed
Residence
425
City and State
Initiation Fee S.
Social Security No
Occupation
Employed by
(To Be Kept on File by Local Union)
Because the designation of Local 200 at this time by
what is claimed to have been a majority of the distributors
is determinative of a number of issues present in this case
the details of the employee designation will be set forth at
this point
Thus it appears from the testimony of those who signed
cards at this meeting that the cards were distributed
among them after considerable discussion of the Union
and of its anticipated function as bargaining representative
in their behalf The members present each received a card,
filled it out, signed it and turned it in to Employee Irving
who turned it over to Samuel Villani, Secretary-Treasurer
of Local 200' Between six and nine additional
authorizations were obtained between meeting and July 6
At the hearing before me each employee who attended
the meeting identified his signed card as the one turned
over to the Local 200 officials In the course of the
testimony each satisfied me that he had not only filled out
the card and signed it but that in so doing that he had
read what he signed Over objection of Respondent and
consistent with the discretion vested in me by the Board'
on the voir dire examination of witnesses concerning the
circumstances surrounding the signing of the card I
limited counsel to the facts of the actual reading and
signing 11 Upon my observation of these witnesses, each of
whom I credit, I am presuaded that each is of better than
average intelligence, is acutely aware of the so-called facts
of life and conversant with the phenomena of current
events Each one of them testified that he had read the
card before he signed it The card, as set forth above, is
clear and unambiguous in its language authorizing the
Union to bargain for the signer With this in mind and
upon my evaluation of the testimony of each signer I am
convinced that he understood what he had read " I have
no hesitancy, therefore, in finding as I do that by his
signature each distributor manifest at least an implicit
The foregoing account of the organization of the distributors is the
credited testimony of Employee William Irving who vouched for the
receipt of a card for each of the 48 members present Cf I Tartel and
Son 119 NLRB 910 912 enfd 261 F 2d 1 4 (C A 7) Mink Dayton
Inc 166 NLRB No 79
'Bryant Chucking Grinder Company 160 NLRB 1526 1527 fn 2
"My ruling in this respect is not to be confused with my limitation of
the cross examination by counsel for Respondent concerning what
transpired at the June 16 1966 meeting at the Yates Hotel After the
extensive questioning of 14 witnesses concerning the nature of the Yates
Hotel meeting I ruled that further testimony on the subject would be
cummulative and that Respondent was precluded from further inquiry in
that area unless it related directly to the credibility of the witness being
questioned as was the case with Employee Anthony Newman whom I
credit
" The wording of the authorization card is an important factor in
determining whether an employee meant to authorize the union as his
bargaining agent When a card is clear on its face as designating the union
as bargaining agent it is not subject to parol impeachment merely because
the employee was told that the purpose of the card was to secure an
election The card itself effectively advises the employee of the purpose to
constitute the union as bargaining agent N L R B v Sagamore Shirt
Company 36S F 2d 898 906 (C A D C )
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intention to designate the Union as his bargaining agent,
irrespective of whatever other purpose he may have had,
or had been told him, or what further understanding he
may have had. I therefore conclude and find upon the
submission of signed authorization cards into evidence and
the credited testimony of employees signing them that
during June 1966 and prior to July 6, 1966, 54 distributors
designated Local 200 as their bargaining agent Of this
number 45 distributors signed cards at the June 16
meeting,'2 and their cards were submitted in evidence at
the hearing
The following additional cards were signed and filed
thereafter. Joseph Chiarmonte credibly testified that he
did not attend the meeting but requested an authorization
card from Irving the following day which he identified at
the hearing. He read and signed the card and then turned
it back to Irving
John Skripnik requested a card of Employee Viggiano
One was sent him on June 22, 1966, which he read, signed
and immediately returned to Viggiano by mail. He
credibly identified it at the hearing
John Czerow had not signed his distributor's franchise
agreement until a month after he attended the June 16
meeting where he signed an authorization card He was
actually employed as a distributor however before June
16. Although Czerow's card cannot now be located I
accept his testimony that he did read and sign the
authorization card at the June 16 meeting In this case, as
in those which follow, I am disposed to accept an
employee's credited testimony that he signed a card at a
specific time as an adequate substitute for the card itself
and as evidence that he had authorized the Union to
represent him
Vernon Garris, whose signed authorization card cannot
be located, credibly testified that he attended the June 16
meeting at the Yates Hotel, filled out a card and after
having read it, signed it and returned it to the desk where
Viggiano and Irving were seated.
Gerald King, whose signed authorization card cannot
be located, credibly testified that he signed one at
Employee Viggiano's request several days after the June
16 meeting. He read the card before returning it to
Viggiano who credibly testified to its receipt.
Paul Frase signed an authorization card a week after
the June 16 meeting Although the card cannot now be
located he credibly testified that he read the card before
signing it and then returned it to Viggiano who told him it
"The credited testimony of the following employee-signers
William Irving
Daniel Rothschild
Shirley Tenity
Anna Siebert
George Young
James Tortora
Mary Guzewicz
Authar Waterbury
Elmer Wili
Gary Zimmer
Norman Sallerson
Carl Kelly
Cornelius Schwarz
Robert J Moran
Robert Ransom
Delbert Neville
Betty Labovitch
William Kelly
Peter Malvasi
M C Ganley
Naomi Clark
S Gordon Fauts
Richard Hooker
Robert Crowell
Clayton Johnson
Howard L Hill
Oscar Dear
Kenneth Ingersoll
Floyd Grinnals
Hubert Hamilton
Melvin N Zimmer, Sr
Wilford Thompson
Robert H Younglove
Charles Parkinson
Robert J McCllannon
Louis Berring
Arthur L Pischette
Lucian M Colella
Anthony W Newman Norman Smith
Carmen Davoli Malvin Zimmer, Jr
Phillip Davoli Joseph Frey, Sr
Tony Viggiano
was for membership in the Union Viggiano credibly
testified to the receipt of this card
Graham Wells, whose card cannot be located, credibly
testified he was given an authorization card by Viggiano
prior to the June 16 meeting After reading he
immediately signed it and returned it to Viggiano
Norman C Freeland and William E Spring, employed
as distributors in June and July 1966, each signed union
authorization cards at the June 16, 1966, meeting but have
since died All parties stipulated to the authenticity of
their signatures on the respective cards and Employee
Irving credibly testified as to their attendance at the
meeting, as to what transpired at the meeting and as to
the fact that both Freeland and Spring each submitted a
signed card to him at that time I accordingly include
these two cards among those held by the Union prior to
June 24, 196613
Upon the foregoing, based upon credible testimony, I
conclude and lind that on or before June 24, 1966, the
Union had been authorized to bargain in behalf of 54 of
Respondent's distributors, a majority of the 104
distributors stipulated to have been employed at this
time
Additional cards, not included to compute the Union's
initial majority but which support its majority thereafter,
were received as lollows
Gerald Westcott, whose authorization card cannot be
located, signed such a card in July 1966 about a month
after the June 16 meeting at the Yates Hotel. He did so at
the request of Employee Viggiano who told him to read it
over This he did and after signing it he returned it to
Viggiano Viggiano credibly testified to this transaction.
Vernon F LeFever, whose authorization card is
missing, identified the authorization card in evidence as
identical to the one he signed. On further examination his
recollection of signing a card became exceedingly dim, to
the point of not recalling whether he signed a card or not
He did volunteer that he was a member of the Union and
displayed his membership book; and his name, together
with all the others who signed authorization cards,
appears on the Union's roster of dues-paying members,
beginning September 27, 1966 Upon the foregoing,
without reference to LeFever's conflicting testimony, I
find that as a dues-paying member of the Union he had
thereby authorized it to represent him since September
1966
Robert Shipley, whose authorization card is among the
missing, credibly testified that after reading it he signed
such a card in September 1966 at the request of Employee
Irving
David Alexander, whose authorization card is missing,
testified he signed it in late September 1966 Upon
cross-examination he testified that this signing occurred at
the meeting of distributors in the Yates Hotel While there
was only one such meeting at the Yates, and that on June
16, I am still not inclined to accept that as the date on
which he authorized the Union to represent him In its
unresolved state I accept only Alexander's obvious
forthright testimony that he read and signed the card
Because the Union's dues roster shows him paid up since
September 27, 1966, 1 will accept that date as his
authorization.
Lindo Vincent , whose authorization card is also
missing, credibly identified the card as the one he read,
signed and returned to either Irving or Viggiano in
September 1966 at the union hall Vincent, who did not
obtain his distributor franchise until August, was not
among the majority established in June 1966, but his
"1 Taitel and Son, supra
THE HERALD CO.
credited testimony and his payment of union dues
beginning in September 1966 confirms his authorization of
the Union as his representative as of that date
Joseph Brisson, whose authorization card cannot be
located, credibly identified such a card as the one he
obtained from Viggiano at the plant in October or
November 1966 After reading it he returned it to
Viggiano. The Union's dues roster lists Brisson as paying
his first union dues on October 24, 1966, and upon this
and his credited testimony I would fix this date as on or
about the one upon which he authorized the Union as his
bargaining representative
William Griffith first signed a union authorization card
on June 16 at the Yates Hotel He credibly testified,
however, that he sold his franchise in June 1966. Thus he
does not appear to have been an employee on July 6,
contrary to the fact that the fact that the stipulated list of
employees for that period carries his name Accordingly, I
do not include his name among employees who had
authorized the Union to represent them at that time
However, he purchased a new franchise in November 1966
and began paying union dues on November 30 As of that
date I would include Griffith among those authorizing the
Union to represent them
A review of foregoing findings which relate to
employees who signed union authorizations or otherwise
signified their authorization after July 6, and before
December 1, 1966, discloses the addition of seven
additional employees. During this same period the record
disclosed that on August 1966 Majorie Ganley sold her
franchise and Phillip Davoli did likewise, thereby ceasing
to be employees. Thus by December 1, 1966, the record
reflects a net gain of five employees. Upon these findings
and those made above (supra) and upon the union dues
roster which appears in the record, I conclude and find
that as of that date the Union represented a total of 59 of
Respondent's 104 distributors for bargaining purposes.'"
D The Hostility between Distributors and the
Respondent
During the period beginning with the reorganization of
the Association in May 1965 through June 1966 when it
affiliated with the Union, as described above, and
thereafter, there was continuing friction between it and its
individual members on the one hand and the Respondent
on the other To the extent that they can be categorized
and set forth chronologically an account of the incidents
making up this contention follows.
I The inserts
The pre-printed tabloid, usually a special advertisement
received in advance of the regular issue of the newspaper,
in most cases the Sunday edition, was known as an
"insert," deriving its name from the fact that it had to be
"Charles Wilson , whose signed authorization card appears in the record,
testified that he read and signed it at the June 16 meeting at the Yates
Hotel He further testified that from what he heard at the meeting the
holding of an election "was the general object of the card in the first
place " When confronted with the fact that he had thereafter paid union
dues his recollection failed him
Upon Wilson's inconsistent testimony and the fact that he may well have
heard discussed only the one object of the card, the election , I am not
disposed to include him among those authorizing the Union , and I reject
his card By so ruling, however, I specifically note that nothing in Wilson's
testimony would possibly suggest that any of the other 59 distributors upon
whose testimony I rely herein were similarly confused in their selection of
the Union to represent them, or that they or any of them understood that
holding an election was the sole objective of the solicitation of cards
427
inserted into the paper before delivery. The insert was a
source of extreme aggravation among both distributors
and carriers. By 1965 it was claimed by the distributors
that the frequency of inserts had increased to such an
extent that this added work for themselves and the
carriers making the insertions and the added weight of the
paper justified additional compensation.'s
The dispute crystalized when individual letters were sent
to Respondent by fifty of the distributors on August 13,
1965 stating it would be "necessary" that the Company
reimburse each distributor one cent for each tabloid,
pre-print or comic inserted after August 22, 1965
Thereafter on August 16 or 17 Irving, the Associations'
president, was summoned to the office of Harry Felts, the
Post Standard's circulation manager. A conversation
between the two ensued in which Felts asked Irving why
he thought he should receive extra money for delivering
the inserts and Irving explained the added burden on the
carriers. After further comments by Felts dealing with the
costs involved in printing the inserts he asked Irving if he
were going to deliver inserts on the coming weekend, the
August 22 deadline set in the letter, and Irving told him
he did not know. When pressed on this point by Felts
Irving replied that "there are certain things I don't even
tell my wife," and the meeting ended. At about the same
time Irving had an almost identical conversation with
President Rogers and when asked if he would deliver the
inserts gave the same non-committal answer.
Contemporaneous with this dispute over payment for
making inserts and the Association's insistence upon
payment under the outstanding contract Respondent in
September 1965 prepared a new contract which, from its
point of view according to President Rogers, brought the
insert problem into clearer focus by specifically requiring
the delivery of "complete newspapers intact, including
pre-prints, supplements, and inserts designated by the
Newspaper." The Respondent's unilateral efforts to secure
agreement to this new arrangement will be considered in
further detail, infra Immediately thereafter Respondent
sought a temporary restraining order and permanent
injunction in the New York State Supreme Court against
62 named distributors seeking to prevent them from
interfering with the delivery of the inserts with
Respondent's Sunday editions. The request was ultimately
denied by the court on September 21, 1965.1"
Meanwhile, despite the ultimatum in their August 13
letter, the distributors appear to have continued making
and delivering the Sunday inserts, Irving credibly
testifying to the excessively large and frequent inserts that
were sent them between that date and December 4, 1965.
During the period immediately prior to December 4,
however, the subject became critical upon the
Association's notification to Respondent on December 1
that in view of its failure to compensate the distributors
for making and delivering inserts after August 22, "it will,
therefore be incumbent upon you after December 4, 1965
"Respondent 's President Rogers conceded that complaints had been
made to him and that there had been an increased amount of preprinting,
some of it the result of the merging of the Sunday Post Standard and The
Herald in May 1965. The installation of new presses was calculated to
reduce this preprinting and reduce the number of inserts to the previous
rate of 3 or 4 per year
"A reading of the pleadings and order in the action discloses that an
order to show cause signed by a Judge of the New York State Supreme
Court and returnable on August 23, 1965, was not finally considered until
September 22, 1965, at which time the motion for a preliminary injunction
was denied I accordingly reject President Rogers' testimony to the effect
that a restraining order had been granted against the named distributors
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to provide the necessary employees to make the insertions
aforementioned."
It was the "Howard inserts," an advertising tabloid of
Howard Clothing scheduled to be delivered with the
Sunday, December 5 paper, that precipitated what will be
referred to as the Howard incident.
During the week prior to December 5 the Howard
Company reported to Rogers they had received calls,
presumable from distributors, stating that the Howard
inserts would not be delivered on the coming Sunday.
Thereupon, on either Thursday or Friday afternoon,
Rogers had a discussion in his office with Irving, the
substance of which was Rogers' inquiry if the distributors
would deliver the Howard Clothing insert To this Irving
gave an evasive answer - "I didn't give him a yes and I
didn't give him a no." Thereafter on late Saturday
evening Employee Viggiano, Secretary of the Association,
received a call from Rogers asking him to come to his
office, Rogers having been told by the transportation
supervisor that Viggiano was planning not to deliver the
Howard inserts. Viggiano reported this summons to
Irving, stating he had checked with the Association's
attorney, a Mr. Pearlman who instructed him to keep the
appointment but to bring a witness. Irving accompanied
Viggiano to Rogers' office as witness to the scheduled
conversation. Rogers was in the transportation office when
they arrived at the plant and invited Viggiano to
accompany him to his office. Viggiano signaled Irving to
join him. As the trio progressed to Rogers' office Rogers
told Irving that he wished to speak to Viggiano alone and
took him into his office, asking him if he was going to
deliver the Howard insert. Irving tried to restrain
Viggiano from going in and from answering Rogers,
reminding him of the lawyer's instructions not to speak
without a witness. Rogers meanwhile sought to eject
Irving from the office. This was accompanied by an
exchange of angry invective but concededly no physical
contact, although it appears that at one juncture Irving
reached Rogers' desk and pounded it to emphasize his
objection to the questioning of Viggiano Rogers
repeatedly shouted to Irving to leave the building, and
Irving, as he was eased out of the room, replied several
times "I'm leaving" and left.
On Sunday December 5, approximately 25 distributors,
including Irving, failed to deliver the Howard inserts with
the paper, according to The Herald's circulation manager,
Louis Kennedy. It was estimated by Rogers that 30,000 of
the inserts went undelivered.
Shortly after the Howard incident the Respondent
again sought a State Court injunction It was obtained on
December 8, 1965, and the result was to restrain the
distributors from refusing to make the inserts and to
require them henceforth to deliver a complete Sunday
edition This injunction remained in force throughout the
Christmas shopping season.
Following these abortive efforts to obtain added
compensation for making inserts the distributors resorted
to a new tactic. After the first of the year they decided to
temporarily withhold a weekly payment. The distributors
gave their weekly deposits to an officer of the Association,
who, after a delay of a day or two, submitted the deposits
in bulk to the Company. Shortly thereafter the matter of
receiving additional pay for making inserts was submitted
to arbitration in a dispute involving Daniel Rothchild, one
of the distributors, and it was determined by the arbitrator
that distributors were not entitled to additional
compensation under the contract. The subject, however,
continued to be a source of basic irritation with the
distributors and resulted in a series of confrontations and
contract disputes thereafter To the extent that these relate
to individual distributors and to alleged discrimination
against them they will be considered in their separate
contexts. Generally, however, Respondent and the
Association maintained a high level of tension on the
subject
2. The Thanksgiving 1965 delivery failure
As previously noted (fn. 15) the Company was in the
process of installing new presses during the Fall of 1965
These presses, according to President Rogers, would
produce a larger edition and would eliminate some of the
pre-printing that plagued both distributors and Company.
The first run of the presses was scheduled for the
Thanksgiving Day edition Due to mechanical failure the
initial run was far from a success and created a situation
that Respondent claimed was one of the bases for
relieving certain of the distributors of their franchise. It
appears from President Rogers' estimate that the
Thanksgiving edition was from 2 1/2 to 3. hours late in
reaching the mail room where a considerable number of
distributors were impatiently waiting As a consequence of
this delay Rogers conceded that in some instances the
deliveries would have to be made by carrier boys after 7
p.m in violation of a State law prohibiting such use of
carrier services. In fact Circulation Manager Kennedy
testified that complaints were relayed to him the next
morning from the parents of some of the boys who did
deliver papers late.
As a consequence of the late delivery of the paper to
many of the distributors the papers were not delivered to
customers in many instances by the carriers, and
distributors refused to reimburse the Company for these
papers Among those involved was Arthur Pichette who
credibly testified that his allotment was not delivered to
him until after 8 p.m when all the boys had gone home.
As a consequence his papers were not paid for In
Pichette's case, as in the case of numerous other
distributors, the refusal to deliver the Thanksgiving edition
was considered by the Respondent to be a concerted effort
on the part of the Association members to harass the
Company, and in the individual terminations which
followed it was assigned as one of the controlling reasons
It is significant, however, that although this was deemed a
determining factor Rogers in his testimony could not seem
to recall specifically who among the distributors did or did
not refuse the Thanksgiving delivery
3. Individual encounters between distributors and
management
At approximately the same time that the distributors,
individually and through the Association, were engaged in
a concerted drive to improve their compensation by
payment for the inserts Respondent undertook a campaign
directed at this group. It began with conversations with
individual distributors, many of whom thereafter incurred
Respondent's disfavor and were either eliminated as
distributors or offered less favorable contract terms.
Richard Flaherty, a member of the Association, had
been told by Supervisor John Mulvey in October 1965
that if he joined the Association he would lose his Sunday
subsidy" and his contract would not be renewed. In
"The Sunday subsidy as used herein is an amount of money given
THE HERALD CO. 429
January 1966, Supervisor Conboy of the Post Standard
had at least four conversations with Flaherty on the same
subject, some in the presence of Mulvey Initially he was
called in to discuss circulation but in the course of the
conversation he was asked if he was a member of the
Association. Upon his negative response Conboy asked
him if he was going to join He then asked Flaherty if he
planned to attend a scheduled Association meeting. When
Flaherty said he did plan to attend Conboy said he would
know for sure because he would have three spies in
attendance. He then said that he knew Flaherty was
"pushing" the Association and "talking it up" among the
men on company property and that he wanted it stopped
He concluded by saying, as Mulvey had said several
months previously, that if he did join the Association the
Sunday subsidy would be cut off and the contract would
not be renewed. Thereafter on January 17, 1966, following
an Association meeting on the previous evening Mulvey
engaged Flaherty in casual conversation and concluded by
asking him how the meeting was. Several weeks later
Flaherty had a conversation with Harry Felts, circulation
manager of the Post Standard, in Felts' office with
Mulvey again present. After some conversation on
circulation problems Felts told him he knew he was an
Association member but that if he resigned "things would
be alright." But if he did not resign he would lose his
Sunday subsidy and his contract would not be renewed or
extended after April 4." During this same period, in early
February 1966, Felts sent for Charles Frey and engaged
him in a conversation concerning the Association He told
Frey that he knew Frey and his father were both members
of the Association and that if he did not get out he would
take away his Sunday subsidy and his repayment of
"honor box" losses, money supplied distributors by the
Company to compensate them for losses incurred in the
maintenance of honor boxes affixed to unattended street
corner paper racks Felts went on to say that the
Association was no good and that it could not help the
men in any way."
Felts' conversation with Anthony Bolognone, another
distributor, was strikingly similar . Thus on January 25
Bolognone was summoned to see Felts by Supervisor
Monticello Felts, in the presence of Monticello, told him
that he knew he was a member of the Association, that
being a member would jeopardize his Sunday subsidy and
would hinder the renewal of his contract in June. A week
prior to this, in mid-January, Bolognone had had a
conversation with Monticello in the same vein On this
occasion Monticello had told him he knew he was an
Association member based upon information they had
received from an informer in the organization.20 Two
weeks thereafter Bolognone had still another conversation
with Monticello in his office, the latter asking him if he
had come to any decision concerning the Association.
Bolognone told him that he had and was then taken into
Felts' office where Felts asked him the same question.
Bolognone told Felts that "under the circumstances it
might be the right thing to resign from the organization."
At this point Felts congratulated him and produced a
typed letter which he asked Bolognone to sign, stating
they would forward it to the Association The letter,
addressed to Irving of the Association, stated
Effective with February 8, 1966 I wish to tender my
resignation from the Newspaper Distributors'
Association
Bolognone signed the letter and Felts sent it by registered
mail to the Association."
At approximately the same time Joseph Lorin, then a
distributor for the Post Standard and presently for the
Herald, had experiences with Felts and Monticello similar
to those of Bolognone. Thus in early February Monticello
first asked Lorini about the Association and then told him
that he should not have joined because he could lose his
contract or subsidy checks Shortly thereafter in a
conversation with Felts in his office he told Lorini that he
knew he was in the Association and what was going on at
the meetings as "he had men there at the time." He then
told Lorini that if he wanted to continue with the Post
Standard he would have to resign from the Association.
Lorini credibly explained this stating he was told that his
contract would not be renewed nor would he get his
subsidy checks. Felts then presented Lorini with a
prepared form letter, identical to the one presented to
Bolognone (supra), telling him that if he did not sign it he
might not have his contract renewed in February or
receive franchise subsidy checks. Asking to think it over
Lorini went home and returned later in the day, at which
time he signed the prepared resignation. Felts then sent it
to the post office by messenger who returned with a
registered mail receipt which Felts presented to Lorini.22
Vernon Garris was presented with a similar letter which
he also signed.
In February 1966 Robert Sutton, a Post Standard
distributor, had a conversation with Supervisor Jack
Meadvin in which he was asked what he knew about the
Association and if he was a member of it. Meadvin
assured Sutton that the Association could do nothing for
the distributors and anyone known to belong to it would
lose out on the bonus program and "their contract would
be pulled by the company." Meadvin repeated these
remarks to Sutton on numerous occasions through August
1966. Shortly after the February conversation with
Meadvin Supervisor Conboy, in a conversation with
Sutton, substantially repeated the remarks made by
Meadvin, reminding him of the lucrative bonus he was
receiving and the fact that Association membership would
place his contract in jeopardy. A month later, in March,
Conboy telephoned Sutton and asked him if he knew there
was a Union meeting to be held on that particular day.
Sutton told him he knew of it and was going. Whereupon
Conboy asked him to call him after the meeting and let
him know who had attended. On his return from the
meeting Sutton called Conboy who questioned him about
what had transpired. This telephone call was to Conboy's
individual distributors to compensate them for losses incurred by the
merger of two Sunday papers in May 1965 (supra)
"The credited testimony of Flaherty Felts admits to the conversation,
claiming its purpose was to warn Flaherty to improve I do not credit
either Felts' version or his denial that he threatened to withdraw the
Sunday subsidy
"The credited testimony of Charles Frey I do not credit Felts' dental of
statements and conduct attributed to him by Frey and other credible
witnesses herein
"The credited testimony of Bolognone
"I do not credit Felts' testimony that Bolognone actually asked him to
help him with the letter and that it was the employee 's idea that it be sent
by registered mad
"The credited testimony of Lorini Felts admits to suggesting the writing
of the resignation , helping to write it, having his secretary type it and mail
it I do not credit Felts' version to the effect that Lorini was afraid of what
would happen if he faded to appear at the Association meeting , that he
wanted to get out, and that he did not know how to go about it My
observation of Lormi suggests no such tunidity or lack of sophistication on
his part, nor could Felts recall any instances of violence in the relationship
among employees , employer, Association and the Union
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
home in Homer, somt• distance from Sutton's Syracuse
home and involved a toll payment. Sutton requested
Conboy to reimburse him and this was done by a check
drawn against The Herald Company account. 23
During the same period, on February 2, 1966,
Circulation Manager Louis Kennedy of the Herald drove
to the home of Oscar Dean, one of the distributors and a
member of the Union, in the company of an unidentified
individual. Kennedy asked Dean if he was going to
"peddle his route," and Dean replied that he always had
Whereupon Kennedy stated that if Dean abandoned his
route they had men to take it over."
Thereafter on February 9, Melvin Zimmer, Jr., a
distributor, was visited at his home by Supervisor Gary
Kruger and William Dempsey." When Zimmer refused to
talk to the two at one time Kruger left and Dempsey
brought up the subject of current strike talk. He asked
Zimmer if he was aware of it and upon an affirmative
reply asked him what his position was When Zimmer told
him he planned no foolish moves Dempsey told him that
in the event of an abandonment of a route the Company
had many men available to take it over. Dempsey
thereafter visited Distributor Hubert Hamilton in the
company of Supervisor Gary Kruger and an individual
identified only as someone available to take over
Hamilton's route if it were "abandoned." The same two
representatives of Respondent likewise visited Distributor
William. Kelly and substantially the same conversation
took place, with the usual reference to the unidentified
individual who could take over the "abandoned" route.
Dempsey showed a particular interest in Kelly's attitude
on strikes.
Other distributors were visited by representatives of
management during this same period - all with the same
query of an impending strike Thus, distributors Shirley
Tenity and Mary Guzewicz were both visited by
Supervisor John Caruso whose stated purpose was to
explain President Rogers' letter (supra) concerning the
Company's intent to resist the organization of distributors
and re-man abandoned routes. On each visit Caruso was
accompanied by an unidentified individual who, it was
suggested, would be available to take over the route if it
was "abandoned." In talking to Mrs. Tenity, Caruso
stated that if she went along with the rest of the
distributors and failed to deliver her papers she could have
her contract taken away from her. He went on to say that
Mr. Newhouse would not recognize the Union no matter
what it cost him. Supervisor Gary Kruger visited Joseph
Chiarmonte, a Herald distributor, during the same early
February, being accompanied by an individual identified
only as an applicant available to take over Chiarmonte's
route should it be "abandoned."
Similarly, Supervisor Meadvm visited Charles
Parkinson and Norman Smith, Herald distributors, and
"The credited testimony of Robert Sutton I do not credit Meadvin's
denials and explanations of the conduct and statements attributed to him
Conboy was not called to testify
241t is to be noted that during this period Association members had
concertedly withheld bill payments (supra) and Respondent ' s president,
Rogers, had written each distributor that the Company would "resist all
pressure put upon it to recognize and deal with the Union and would
operate any route abandoned by any distributor -
I'
William Dempsey was credibly identified as Circulation Director of
Long Island Daily Press, a paper owned by Respondent 's owner S I
Newhouse , and as being a member of management of the Newhouse
interests I find him to be a representative of management in the incidents
related here , particularly as he appeared in the company of and under the
apparent auspices of an admitted member of management, Kruger, and on
other occasions when in the company of Felts, he discussed compensation
and operating problems with Irving and Rothchild, as credibly described
by them
on each occasion had with him an individual whom he
identified as someone available to take over the route if it
was "abandoned." He told Smith "not to do anything
hasty" about "abandoning the route" because he would
stand to lose the cash value of his franchise. Parkinson
was not home when Kruger visited him so their
conversation took place in Kruger's office the following
day. As in all the other encounters Kruger informed
Parkinson that if he was thinking about striking there
would be someone available to take over his route.',
The intensity of Respondent's campaign to curtail the
concerted actions of the distributors and to wean them
from their Association membership did not abate as the
Spring season progressed. If anything, it increased.
Kennedy and Kruger continued their questioning of
distributors, Kennedy, in April, asking Delbert Neville
what the Association could do for him, and in June
Kruger asking him if he was going to the union meeting.
Similarly, in March Kruger asked Vernon Garris if he
were going to an Association meeting on the following
Sunday, and in May he asked Robert Ransom what good
the Union would do him and if he was going down the
drain with the rest of the men "
E. Refusals to Deal with the Union
I The first requests to bargain
We have previously set forth the efforts of the
Association to enlist the membership of distributors and
have detailed the meeting at which a majority selected the
Association to represent them. In point of time the
campaign of the Respondent detailed above (supra) and
other actions directed at distributors and discussed
elsewhere all form a backdrop to the collective action
which crystalized on June 16, 1966, at the Yates Hotel
meeting when a majority of the Respondent's distributors
selected the Union as their bargaining representative.
Thereafter, beginning on June 24, 1966, and extending
through a series of communications to Respondent the
Union, through its attorney, Bernard T. King, Esq., and
its president, Walter J. Butler, requested that Respondent
recognize it as the majority representative of the
distributors and asked for an early meeting to begin
negotiations for a collective bargaining agreement. The
Union, in its initial letter of June 24 requested that
Respondent refrain from bargaining unilaterally with the
employees and offered, if Respondent doubted its majority
status, to submit the employee authorization cards held by
it (supra) to an independent and impartial check Attorney
King renewed his recognition and bargaining request in a
letter to President Rogers dated July 5, and in the same
letter protested the Respondent's efforts to procure
individual agreements with two employees, Ransom and
Waterbury Respondent, replying through its attorneys on
July 6, 1966, disclaimed any obligations to recognize the
Union, contending that the distributors were not
employees. It accordingly rejected the Union request for
both recognition and bargaining. The Union renewed its
request on January 6, 1967, at which time Respondent's
attorney in effect again refused in Respondent's behalf,
making specific reference to the pending representation
proceeding involving Respondent's distributors
"The instances of visits to the homes of the several distributors, as
detailed above, are based upon the credited testimony of the named
distributors
"The credited testimony of Ransom, Neville and Garris, corroborated
by William Irving I do not credit either Kennedy's or Kruger 's denials of
the questioning attributed to them by Ransom
THE HERALD CO. 431
2. The representation proceedings
A Petition for Election among Respondent's
distributors was filed by the Union in Case 3-RC-3965, on
June 27, 1966, three days after its first request for
recognition and bargaining An extended hearing was held
commencing on September 19, 1966 Thereafter on July
19, 1967 the Regional Director issued his Decision and
Direction of Election, a copy of which is attached to this
Decision as Appendix A and made a part hereof. Therein
the Director, after full consideration and discussion of the
evidence adduced at the hearing and of the contentions
raised by the employer, Respondent herein, concluded that
the employer maintained control over the manner and
means of the distributors' income and the result to be
accomplished and they were therefore not independent
contractors, as claimed, but employees of the Respondent.
He likewise concluded that none of the distributors who
either hire carrier boys or have contracts with motor route
men, part-time drivers or station managers maintain such
a relationship with these individuals as would constitute
them supervisors within the meaning of the Act The
Director accordingly directed that a mail ballot be taken
among Respondent's distributors to determine their wishes
with respect to the Union' s claim for representation. On
November 15, 1967, the Board denied the Respondent's
Petition to Review and to Reopen the Representation
Proceeding, and thereafter on December 4, 1967, denied
the Respondent's Motion to Reconsider its previous
Denial of the Request for Review At the election
thereafter held on January 4, 1968, among 109 of the
distributors 63 voted for the Union, 31 voted against it,
one ballot was voided and 14 ballots were challenged.
Upon objections timely filed by the Respondent the
Regional Director issued his Supplemental Decision on
January 23, 1968, a copy of which is Appendix B attached
to this Decision and made a part hereof. Therein the
Director rejected the objections raised as having been fully
treated by him in his original Decision and Order and
thereafter by the Board in its denial of Respondent's
request for reconsideration The Director also considered
objections to stated conduct alleged to have been
committed by the Union and concluded that none of it
interfered with the election The Director accordingly
certified the Union as the bargaining representative of
Respondent's employees in the following unit.
All city, motor route, street sales, country and suburban
distributors employed by the Employer at Syracuse, and
the central New York area, but excluding all other
employees, office clerical employees, guards,
professional employees and supervisors as defined in the
Act.
Thereafter, on February 12, 1968, the Board denied
Respondent's Request for Review of the Regional
Director's Supplemental Decision and Certification of
Representatives for the reason that the request raised no
substantial issues warranting review.
3. Further refusals to deal with the Union
Upon the Union's certification as the distributors'
bargaining representative its president, Walter J Butler,28
on February 1, 1968, sent a letter to Rogers repeating the
Union's demand that Respondent meet and bargain with
it, stating its status as the distributors' certified bargaining
representative Respondent, by reply of Attorney
Raymond J. Murray, Jr., dated February 9, 1963, stated
that "it would be inappropriate for it to meet for
collective bargaining purposes," repeating its claim that
the distributors were independent contractors for whom it
had no obligation to bargain and stating its intent to seek
judicial review of the Board's contrary determination. The
Union, on February 12, 1968 wrote Respondent again
requesting bargaining and suggested that Respondent
reconsider its refusal. The Respondent had since that time
maintained its stated position
F Respondent's Unilateral Actions
Beginning in June 1966 with the concerted activity of
the distributors which culminated in their selection of the
Union to represent them (supra ) and the Union's
numerous requests thereafter for recognition and
bargaining , Respondent not only pursued its campaign of
harrassment of individual distributors , as detailed above,
and of terminating a number of their contracts thereafter
(infra) but, in the face of the Union' s stated position that
it represented the distributors , it pursued a variety of
stratagems diametrically opposed to the interests of the
distributors and their bargaining agent . Specifically this
action covered four discernible areas; unilateral , individual
wage increases , the continued negotiations of new
contracts with individual distributors , the granting and
withholding of promotion money on an individual basis,
and the curtailment of turkeys , as circulation prizes.
1 Individual agreements
The dispute between distributors and the Respondent,
as detailed earlier, was a continuing irritant and the
source of constant discussion between Irving in behalf of
the distributors, and Respondent's officials. In President
Rogers' opinion, after engaging in these disputes in 1965,
the contract then in force between the individual
distributors and the company was not sufficiently specific
on the delivery of a complete Sunday paper, including
inserts. Indeed, it was during this period in August 1965
that the distributors, by letter of August 13 (supra),
individually wrote Respondent stating they would not
deliver the inserts without extra compensation. Not only
did this inspire the countermeasures on Respondent's part,
as previously described, but it also resulted in the
preparation of the contract which required the distributor
to deliver "the complete newspaper intact, including
preprints, supplements and inserts." (supra) In September
Rogers directed that every distributor be offered the new
contract and that each new one signed would be for a five
year period, regardless of the remaining term of the
distributors' contract then in force. Between this time and
June 24, 1966, a considerable number of distributors were
solicited to sign the new contract and refused to do so.
Others accepted the new terms 29 Critical to the instant
proceedings, however, are those who were solicited by
Respondent on and after June 24, 1966, the date when the
Union made its first request for recognition and
bargaining. It is stipulated among the parties that between
this date and June 1968, the commencement of the
hearing before me, Respondent procured individual
"As a point of clarification William J Irving, a former distributor, and
frequently identified as president of the Association , is Business
Representative of Local 200, the Union herein
"The credited testimony of Louis Berring and Charles Parkinson
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreements from 60 of the distributors then represented by
the Union . Of this number 17 agreements were solicited
and executed after January 23, 1968, the date the Union
was certified as the distributors ' bargaining representative
and the Respondent was notified thereof
In addition to the franchise agreement individually
procured Respondent simultaneously engaged in still
another tactic of dealing privately with the distributors,
again directed at the troublesome " insert problem." On
October 27, 1967, long after the Union had made its first
demand to bargain for the distributors , Respondent sent
each of the distributors a form letter advising them that
the price of the daily paper would be raised to 10 cents
per copy, 50 cents per week , beginning on November 6,
1967 The wholesale rate to the distributors was also to be
raised proportionately . In addition , however, each
distributor was offered an arrangement whereby he would
be paid an additional 2 cents per paper for one day per
week , based upon his weekly average . In return the
distributor would agree to deliver the complete Sunday
paper , intact with all its supplements , on the day of
publication ," and to perform a minimum of 52 daily
inserts per year The distributor was given the option of
refusing this offer but was informed that Respondent still
adhered to its contention that the inserts were required
under any circumstances , but that it did not intend to
compensate any distributors who would not accept its
position . Rogers estimated that for a distributor whose
average daily "draw" of papers was 2,500 the increase
would amount to $50 per week . A total of 70 distributors
signed this so-called "2-cent agreement "
In testifying concerning both the new contract and the
"2-cent agreement" Rogers emphasized that he had not
discussed it with the Union nor had he discussed with it
the wages or conditions of employment of any of his
distributors.
2 Promotion money
As described earlier, promotion money consists of
payments to distributors for the purpose of running
contests and providing prizes among the carriers with a
view to increasing circulation. From time to time circulars
are issued to distributors announcing a scheduled contest.
The money received for this purpose annually is not
unsubstantial . Thus, Irving and Rothchild estimated that
prior to 1966 they averaged $2,500, Malvasi $2,000;
Berring, $1,500. In fact, figures supplied by Respondent
indicate that for a five month period in 1965 the
promotion money for these would approach the annual
estimate to which they testified. But Respondent's 1965
figures provide more than support for the average
promotion money given distributors They indicate that by
comparison with the same first five month period of 1966,
a period when self-organization among the employees was
at its height, promotion money showed a decided drop
It is alleged in the complaint that Respondent
discriminated against certain of its employees by
withholding this promotion money and that it refused to
bargain by unilaterally discontinuing the payment of these
moneys President Rogers' testimony on this subject is of
particular significance to this allegation Thus he testified
that in late May 1966, the height of the organizing
"Rogers testified to having received customers complaints that certain
parts of the Sunday paper had been delivered by the carrier boys on
Saturdays
campaign , and Respondent's counteractivity (supra), he
personally reviewed the promotion figures for distributors
and found that promotion had fallen off He immediately
directed Circulation Manager Kennedy to cut off .
promotion money for everyone except those who were
willing to promote As a result of this curtailment
circulation fell off considerably and consequently the .. ;
promotion money was restored in 1967. Meanwhile in
mid-1966, and as a result of Rogers' decision, the cuts j•)
were made Irving received no promotion whatever after
June 1966, and credibly testified he did not refuse to do ;•.
promotion work theretofor Similarly Daniel Rothchild,
the treasurer of the Association, received no further
promotion funds after that time Prior to June 1966 Peter
Malvasi received promotion money regularly. Thereafter
he received little, if any, while, at the same time others
were receiving funds, all of this despite the fact that the
deteriorating nature of his territory required promotion
and he had so advised Kennedy Similarly, Louis Berring
received little if any such moneys after June 1966; and,
when Robert Ranson asked Supervisor Gary Kruger
about it in October 1966 he credibly testified that
Kruger's reply was to ask him when he was getting out of
the Association Ranson was not sure, however, of the
extent to which his promotion money was cut
The facts surrounding Melvin Zimmer, Jr.'s loss of
promotion money is more significant, even, than the
others. Thus when he complained to Supervisor Kruger of
the cut in October 1966 he credibly reported Kruger's
reply as asking him if he was going "to sign a new
contract and play ball with the Company "
Rogers' position on the curtailment of promotion
money lends little credence to his contention that it was
brought about by a general failure to promote. For
example, he explained that promotion money was
continued for Friedman, Napier and Bovalmo, none of
whom were Union members, although they, like everyone
else, were down in promotion Their promotion money
was continued, however, because they were "willing to
promote." Kennedy testified that promotion money was
given these three because they were "cooperative " Indeed,
according to Kennedy, Napier, Friedman and Bovalmo
needed the promotion money because they were in
deteriorating territories that required rebuilding.
Significantly, when Peter Malvasi, a union -member, was
faced with the same deterioration problem, losing money
as a result of poor collections, it was Kennedy who told
him to take care of it himself and urged him to sign the
2-cent agreement, the unilateral arrangement discussed
earlier Malvasi's promotion money was not restored
Upon the foregoing findings, and in addition, upon the
confusion generated by Rogers in his testimony
concerning the withholding of the promotion money I
reject the explanations offered by Respondent and rely
instead upon the credited testimony of the distributors
who suffered the loss, as detailed above In this particular
is to be noted the testimony of Circulation Manager
Kennedy, who in a conversation in April 1966 with
Supervisor Gary Kruger and a distributor, Carmen
Davoli, was told by Davoli that promotion would not be
settled "until this matter is settled with the distributors "
Kennedy immediately reported this conversation to
Rogers; Rogers immediately curtailed promotion money,
and the Union members detailed above were the ones
primarily relieved of promotion funds.
i,:
,ii
CL,
THE HERALD CO. 433
3. Unilateral wage increases
As previously considered, Respondent's letter of
October 27, 1967, to the distributors advising them of the
raise in the price of the paper carried with it the offer of
an agreement which provided for making all required
inserts in return for a 2-cent per paper increase. To the
extent that many signed this agreement and thereafter
received the added remuneration Respondent admittedly
raised their wages. This it did, it also admits, without any
consultation with the distributors' bargaining
representative
4 Turkey awards
As a traditional incentive in the late Fall it was
Respondent's custom to hold turkey contests whereby
carriers - and distributors - were awarded turkeys for
increased circulation. To qualify for turkeys distributors
and their carriers had to establish a definite increase in
circulation during the period established for the
competition.
Distributor John Skripnik, a member of the Union,
qualified for turkeys in November 1967 and estimated he
would receive 40. Supervisor Caruso called him, however,
and told him he would be ineligible because customers had
discontinued after the contest ended Skripnik informed
Caruso that it was the increase in the price of the paper
that caused the dropoff and nothing else, and if the
turkeys were not forthcoming he would buy them himself
and deduct the cost from his bill. The full allotment of
turkeys were immediately dispatched to him.
Gary Zimmer, a former distributor and active in the
Union, also had turkey problems in November 1967.
After being assured by Supervisor Gary Kruger that he
had established the necessary quota the turkeys were not
sent him. Upon calling Kruger he was told that he was
not getting the turkeys because he had lost business due to
the increased cost of the paper, although the loss occurred
after the close of the contest.
In addition to the above two it would appear, upon the
basis of an offer of proof by counsel for the General
Counsel, that others who had qualified for the turkey
contest were not sent their prizes These were Hubert
Hamilton, who previously had received a home visit from
Kruger and Dempsey with an unidentified third person to
see if he would be delivering his papers in the future
(supra), Melvin Zimmer, Sr., an active union member and
Norman Smith, another union member Circulation
Manager Kennedy, wnen questioned about the turkey
contest, testified that one was held from 1964 through
1967 but that in 1966 the contest was curtailed. No
explanation of the 1967 incidents detailed above were
supplied.
G Discriminatory Conduct and Concluding Findings
In the course of its dealings with the individual
distributors and its campaign to avoid dealing with the
Union as their bargaining representative Respondent
engaged in a number of incidents which are alleged to
have been unlawful discriminations against the employees
involved.
Daniel Rothchild was among the most active of the
distributors in union matters and at the time the
Association members joined the Union at the June 1966
meeting he was the Association's treasurer.
It had been the usual practice during Rothchild's
employment to obtain loans periodically from the
Company, interest free, "for any reason whatever " Other
distributors appear to have received them as well In
January 1966 Rothchild went to Kennedy and Kennedy
refused him "because of my activities " A year later, in
January 1967, Rothchild again sought a loan from
Kennedy. Kennedy's reply was, "For you Union fellows
the windows are closed" Kennedy then told him to go
borrow the money from the Union Kennedy's testimony
confirms Rothchild's but assigns his refusal to sign a new
contract (supra) as the reason for the refusal
Upon the foregoing I conclude and find that
Respondent by requiring the signing a contract found to
have been promulgated unilaterally as a condition to the
granting of a loan discriminated against Rothchild in
violation of the Act."
In May 1967 Lucian Colella, a distributor, was seeking
an increase from Respondent to compensate for the added
cost of using a helper. Collela told Supervisor Meadvin he
would need $15 per week whereas Meadvin would only
give him $10 When pressed by Colella, Meadvin stated,
"Lee, if you didn't belong to the Uniqn I think Lew
Kennedy would give you $15 instead of $10." Thereafter
in July 1967 Colella had a conversation with Kennedy on
the same subject. Kennedy told him that as long as he
belonged to the Union he "would never get another dime
from the Company."'i Citation of authority is unnecessary
to conclude that by thus depriving Colella of additional
compensation because of his union membership
Respondent thereby discriminated against him in violation
of the Act.
H Contract Terminations
During the period in which the distributors were
engaged in self-organization and through the throes of the
representation proceeding and midway into the hearing
Respondent terminated the contracts of twelve distributors
for the alleged reason that they joined or assisted the
Union or the Association or otherwise engaged in
concerted activities or union activities.
1. Richard Flaherty
Richard Flaherty began as a distributor for the Post
Standard in May 1965 and his contract was terminated in
April 1966.11
"Stevenson Brick and Block Co, 160 NLRB 198
It is alleged that Rothchild was discriminated against by a denial of
so-called stick corner facilities (a system for paper pick-up by carriers)
The record shows upon Rothchild's testimony that upon his first request in
February 1967 Kennedy refused , stating it was because of his union
affiliation As Rothchild's testimony shows that immediately thereafter he
was given four stick corners I shall recommend that this particular
allegation of discrimination be dismissed
"The credited testimony of Colella Kennedy's explanation was that the
charge for the helper was excessive and he ordered Meadvin to reduce it
He denies the reference to the Union attributed to him by Colella I do not
credit this denial
"It is Respondent's contention that the allegation as to Flaherty is
outlawed by the limitations of Section 10(b) of the Act inasmuch as the
alleged conduct occurred more than 6 months prior to the filing of a
charge against the Post-Standard , on August 4, 1967 The first charge
against The Herald Co was filed on July 12, 1967 Having already found
and concluded that The Herald Co and Post Standard constitute a single
employer (supra) it follows that service of a charge against either is service
of a charge against the single employer entity And to the extent that the
subject matter of the alleged misconduct directed at Flaherty is closely
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As has been detailed elsewhere in this decision Flaherty
was one of the distributors subjected to Respondent's
campaign directed at the Union. Thus in December 1965
in two conversations with Mulvey he was told that should
he join the Association his Sunday subsidy (supra) would
be cut off and his contract would not be renewed when it
came due. During the same period Supervisor Conboy
told him essentially the same thing. Thereafter, on
January 13, 1966, Conboy asked him if he was an
Association member and when Flaherty told him he was
not he was asked if he was going to join. Conboy then
asked him if he were going to the Association meeting and
went on to say that he would know because he would have
three spies there After the January 17 meeting Meadvin
called up Flaherty and after discussing some business
matters asked how the meeting went
Finally, on February 10, 1966, Circulation Manager
Felts, in Mulvey's presence, discussed with Flaherty the
nondelivery of papers due to snow. Felts told him he knew
he was a member of the Union and said that if he were to
resign everything would be all right. If he did not he
would lose his Sunday subsidy and when the contract
termination date arrived, April 4, his contract would not
be renewed. Flaherty was thereafter notified by Felts that
if he did not sell his franchise by April 4 the Respondent
would exercise its right and take over delivery of papers
beginning on April 5, 1966." Upon the foregoing I
conclude and find that Flaherty's contract was not
renewed for the reasons assigned but because of his union
membership
2. Elmer Will
Elmer Will has been employed by Respondent since the
1930's and has been a distributor from 1948 until the
termination of his contract in October 1966. Wili's
territory was in Ogdenburg, New York, a community on
the Canadian border where he has been somewhat of a
self-styled public figure, being active in Kiwanis and other
community activities.
In May 1965 Will. was active in organizing the
Association and assisted Irving in soliciting membership
among the distributors in the northern part of the State.
He was elected vice president of the Association.
Quite apart from his interest in Union affairs Wili
appears to have taken an aggressive position in promoting
the circulation and the status of the paper. The record
contains a sheaf of correspondence between him and
various members of the management which attest to his
strong views about the operation of the distribution
system as it affected him, and the papers' news and
editorial policy as it affected the region where he lived -
the North Country. In these letters, dating from 1959 to
the present, with many of them indicating copies to have
been sent to such third parties as the local district
attorney, State senators, the State Police, the Interstate
Commerce Commission, Newspaper Circulation Bureau,
et al , it would not be overstatement to state that Wilt's
complaints, however justified, were carping, repeated, and
related to the subject matter contained in the timely filed charges I
conclude and find that the allegations which include him are proper
N L R B v Pecheur Lozenge Co , 209 F 2d 393, 401 (C A 2)
"Felts denied the reference to the Association credibly attributed to him
by Flaherty Felts also testified that Flaherty's production record was poor
and that he was not "doing the things that he should do " I do not credit
Felts' denials nor do I accept his conclusionary evaluation of Flaherty's
work nor do I attach any significance to his testimony that Flaherty never
asked that his contract be renewed
frequently spiced with pique Nor did he restrict hi
correspondence to matters of policy and operations. Oi
one occasion he wrote to an editor of the Herali
upbraiding him for his alleged failure to appear at
Kiwanis luncheon."
It is against this backdrop that Wili's relationship wit]
Respondent must be viewed On July 6, 1965, he receive(
a letter from the Respondent stating his contract woul(
not be renewed. Several weeks later Supervisor Rober
Kruger and Assistant Circulation Manager Baroody me
with him and when he asked why his contract was no
being renewed they told him it was because of the letter
he had written, without identifying them. Wili suggeste(
the real reason was because he joined the Association an(
they wanted to make an example of him to intimidate the
other distributors. Both supervisors denied to him that the
was so. In the Fall of 1965 Wili sold his franchise to
Mr. Ward who several months thereafter resold it to Wil
together with the $25 transportation subsidiary from the
Respondent that had previously been in force Responden
was fully aware of this resale and its terms.
In February 1966 Supervisor Caruso visited Will t(
discuss production and Wilt's contract. Caruso opened th(
conversation by asking him if he was still Vice Presideni
of the Association. When Wili asked him what difference
it made Caruso replied that he was "just wondering." A!
the conversation progressed Caruso told Wili that the next
few months would decide whether or not his contract
would be renewed On August 3, 1966, Kennedy advise(
Wili by letter that when the current contract expired,or
October 1, 1966, it would not be renewed.
On the occasion of the first termination of his contract
in 1965 Wili, in a letter to Supervisor Kruger, quote!
Kennedy as saying that the contract was not being
renewed "because I had such a miserable disposition anc
was so hard to get along with." In his testimony relative
to the 1966 termination, alleged to be discriminatory
Rogers repeatedly alludes to Wili as an eccentric who
over the years, had taxed the patience of management
albeit Kennedy testified that Willi's communications were
frequently received with amusement.
It must be remembered that Wilt's shortcomings and
irritations have extended over 25 years and were known tc
Respondent during all that period, as evidenced by Rogers
and Kennedy's testimony on the subject and by
correspondence dating back to 1959 supplied for the
record by Respondent During all this period Respondent
exercised a quantum of forebearance that was best
illustrated by the renewal of Wilt's contract at five yea'
intervals.J6 Significantly, it was not until 1965 that the
man's attitudes and actions became unacceptable. II
cannot be gainsaid, to be sure, that the situations
periodically created by Wili would not justify remedial
action, even in the extreme. But when the remedies
adopted here, the threats and, ultimately, the successive
terminations of Wilt's contracts coincide with Wilt's active
part in rejuvenating the Association, becoming vice
president of it and joining the Union, it raises more than
mere suspicion that Respondent has turned from
forebearance to retribution for reasons other than Wilt's
longstanding and long tolerated shortcomings.
Over 30 years ago the U S Court of Appeals for the
"The testimony of President Rogers I do not credit Wili's denial of the
incident
"The testimony of Circulation Manager Kennedy
THE HERALD CO.
Fifth Circuit had such a situation before it as this." In
language equally applicable it stated.
It was reasonable to conclude that the difficulties
inherent in his case only became seriously insupportable
to his employer when he became secretary of the Union,
and that his discharge and overlong `cooling' period was
directed more at his unionism than at his peculiarities.
I am persuaded that Wili's "pecularities" are less the
reason for his contract termination than were his union
affiliation and activities I therefore conclude and find that
he was terminated for these latter reasons in violation of
the Act.
3. Charles Frey
Charles Frey was a distributor for the Post Standard
between 1962 and January 1967. He is the son of Joseph
Frey, Sr , another distributor whose contract was
terminated by Respondent (infra) and who was the subject
of a dispute in the Respondent's mail room and
considered hereafter (infra) Charles Frey, whose several
conversations with a number of Respondent's officials
have been recorded elsewhere herein (supra), was called to
the office by Circulation Manager Felts sometime prior to
the August 13, 1966, expiration date of his contract. On
this occasion Felts presented him with a new contract, one
of the ones previously found by me to have been
unilaterally conceived and promulgated by Respondent
(supra) Frey noticed that unlike his present contract the
one Felts offered him did not contain a provision for the
payment of the Sunday subsidy. The Sunday subsidy, it
will be recalled, had previously come up in February 1966
when Felts had called Frey to his office and told him he
knew that he and his father belonged to the Association
and that if he did not withdraw from it his Sunday
subsidy and "honor box" loss subsidy would be
withdrawn.
When Frey indicated that he would not accept a
contract without this provision Felts told him that none of
the new contracts contained such a provision but that the
subsidy would continue to be paid to him as long as he
did not join the Association. In his testimony Felts
corroborates the foregoing account of these negotiations
but insists that Frey brought references to the Association
into the conversation. I do not accept this version, but
Frey's But most significant to the incident was Felts'
concession that he could give or take away the Sunday
subsidy as he saw fit
Frey persisted in his refusal to accept a contract
without the subsidy provision. On August 13, 1966, when
he went to pick up his papers they were not given to him.
He thereupon went to Felts and told him he would sign
the new contract under protest. Felts refused this
alternative but did agree to a two months extension during
which period Frey would find a purchaser for his
franchise. He was thereafter given a second two months
extension and in the meantime sought in vain to persuade
Felts and Rogers to submit the problem to arbitration In
January 1967 he sold his franchise to Howard Reichart,
and there begins still another tale.
Viewed against a background of Respondent's threat to
take away Charles Frey's Sunday and box loss subsidies
unless he quit the Association, his insistence that the
subsidy be included in the contract and Felts' adamance is
most significant. Particularly is this so when we note
Felts' testimony that he has the power to give or take
away the subsidy Under all of these circumstances I
"Agwdines, Inc v N L R B, 87 F 2d 146, 154
435
conclude and find that the failure to renew Frey's contract
was not merely becasue he insisted on the subsidy clause,
but rather the refusal to include the clause and the
subsequent failure to renew was because of Charles Frey's
adherence to his membership in the Association. This I
conclude and find to be discrimination within the meaning
of the Act.
4. Howard Reichert
Howard Reichert's problems are but extensions of the
discrimination I have found to have been visited upon
Charles Frey Thus no sooner had Reichert purchased
Frey's contract in January 13, 1967, than Respondent
began to harass him. At the time of the sale Reichert was
incapacitated by a broken leg in a hip cast. As he was not
then able to service his newly acquired territory it was
arranged that Frey, with Circulation Manager Felts'
approval, continue to operate the route with the
understanding that this situation would continue for the
next month. By the end of January Felts called Reichert
at home to see if he had procured a replacement for Frey,
and in mid-February he called and made the same inquiry.
Thereafter, towards the end of February, Felts visited
Reichert at his home and accused him of purchasing the
route so that Frey could run it He then told Reichert that
unless he got rid of Frey he would start taking away his
allowances for box losses and paper returns. By this time
his bonus, for which he had received one check, had
already been taken away, and when he asked Felts the
reason he was told it was because he had not replaced
Frey. In mid-March Felts again called on him to inquire
if Frey had been replaced. Reichert replied that he had
not but that there was someone else working with Frey;
whereupon Felts said that if the replacement was not
accomplished the box losses would be taken away the first
week and the paper return allowance the following week.
In conclusion Felts told Reichert to sell his route."
When Reichert's box losses allowance was taken away
from him in April and his Sunday subsidy by May he
sought to compensate for the losses incurred by
withholding that amount from his weekly bill. Respondent
vigorously protested this and Reichert's failure to submit
a list of his customers, a failure grounded on Reichert's
fear that Respondent planned to terminate him and use
the list to carry on the deliveries. Meanwhile, on June 8,
Respondent sought reimbursement from Reichert for the
moneys withheld. Finally on July 29, 1967, Respondent
took over Reichert's route terminating him. Earlier in
July his broken leg had sufficiently healed to permit the
removal of the cast.
Respondent assigns the withholding of moneys as the
basis for terminating his contract back in March, a month
before the box loss allowance was taken away and well
before Reichert had begun to withhold the money from
his bill. In the light of this contradiction I reject this as
the real reason for the termination On the contrary, and
based in part upon Felts' failure to support his reason of
unsatisfactory service, I conclude and find that the real
reason for Reichert's July 29 termination was his failure
to accommodate Respondent's already established
"The credited testimony of Reichert Felts' testimony appears to
corroborate the fact that these several incidents occurred but for different
reasons Thus Felts testified that he contacted Reichert to complain that
Frey was not servicing the route adequately Felts never explained his
complaint in any more detail I reject Felts' assigned reason for the vague
unsupported manner in which it was offered
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory animosity towards Frey by getting rid of
him, thus perpetrating a further discrimination , this time
against Reichert.
5. Arthur Pichette
At the time his contract was terminated in January
1967 Arthur Pichette had been a distributor for 22 years
and treasurer of the Association for 14 years He was an
active participant in the representation case hearing. In
the summer of 1966 Pichette had a conversation with
Supervisor Gary Kruger in the course of which the
renewal of his contract came up Kruger told him that
they need anticipate no trouble and that it would be
renewed Thereafter in October Kennedy asked Pichette to
come in and sign his contract and when Pichette replied
that he had lots of time Kennedy replied, "It may be too
late then."
As the contract was about to expire in December
Pichette sought and eventually obtained an interview with
President Rogers. On this occasion Rogers presented
Pichette with a letter the import of which was that
Pichette's contract would not be renewed but that he was
being offered a position of supervisor. In the course of his
conversation with Pichette Rogers detailed the reasons
why he would not renew the contract: namely his refusal
to deliver the Howard inserts (supra), his failure to deliver
the Sunday inserts with the rest of the paper (supra), his
part in the Thanksgiving incident when the papers were
late and Pichette was with other distributors who
appeared to be laughing at Respondent's misfortune. And
finally, Rogers contended, according to his own testimony,
how poorly Pichette's production had fared over the past
5 years." For these reasons, including the latter one,
Rogers testified, "We -were prepared to give him a job as
a supervisor working under Mr. Kennedy where, under
supervision, we felt that we could put his experience and
talents to work." Thereafter in his testimony Rogers
described company policy in selecting supervisors - "We
look for a good circulation - a man who knows how to
sell newspapers." Rogers described Pichette's record
however, as follows-
Well, I told him that he hadn't done a good job
building circulation. He said that his record shows that
he was up, and I said yes, I couldn't quarrel with that,
it was up; it was up 38 daily subscribers on an average
in the last five years in an area that was growing very
rapidly where new homes had been building, new
families had moved in, and that certainly, it was not
my idea of a healthy growth record.
Rogers conceded, however, that Pichette's poor record
was not known to him until December 1966, when he
terminated the contract and that, in fact, at that time
Pichette's circulation figures were up, "very slightly."
A review of the circumstances surround the termination
of Pichette discloses a contradiction of significant
proportion. Pichette, whose record was belatedly found by
Rogers to be poor was the very sort of man Rogers would
nonetheless promote to a job of supervisor; an anomoly
raised by Pichette himself, at the time. This strongly
suggests some other reason for Rogers' decision, and
several are evident. Thus in an exchange of
correspondence between Rogers and Pichette upon the
"Pichette credibly testified that prior to his December 5 conversation
with Rogers he had received only the routine complaints of service failures,
the like of which still continue under the new franchise holder
contract termination Rogers reiterated the offered
supervisorship and stated, "you would be subject to our
control and direction and we feel that under those
circumstances you could perform a valuable service to
us." Thus Rogers recognized in this new assignment a
removal of Pichette from the bargaining unit and indeed
an element of "control and direction" of him as a
supervisor free from the Act's protection. The Board has
had occasion in the past to view the promotion of an
employee to a position out of reach of the Act's
protection as itself a form of discrimination.°° Elsewhere,
and in addition to this obvious strategy, Rogers admitted
to informing Pichette that the controlling reasons were
participation in the very activities I have previously found
to be concerted union or Association activity. Upon
Rogers' own testimony, therefore, I conclude and find that
Respondent's refusal to renew Pichette's contract was
unlawful discrimination and not his poor production
record to which Rogers sought to attach the primary
cause.
6. William M. Griffith
William Griffith was a distributor from October 1961
until the termination of his contract on March 31, 1967.
He was a member of the Board of Directors of the
Association from May 1965 until June 1966
The termination of Griffith's contract in March 1967
stems, according to President Rogers, from an incident
over a year before, in December 1965, when the
distributors concertedly refused to deliver the Howard
inserts with the Sunday, December 5, issue of the paper
(supra) Griffith, as did many of the other distributors,
refused to deliver the inserts. He, however, accentuated his
refusal by first giving an evasive answer on early Sunday
morning at the Transportation Office when asked if he
was going to deliver the inserts and thereafter returning
with the inserts, deposited them at the feet of President
Rogers, stating, "These belong to the Herald and I want
them to have them."" While there is credible testimony
that Griffith was in a hurry to deliver his papers so that
he would not be late for National Guard duty I do not
accept this as the reason for his return of the inserts On
the contrary I find that he was acting in concert with the
other distributors in this matter (supra)
In the Spring of 1966 Griffith was riding his route with
Supervisor Kruger when the subject of contract renewal
came up Kruger told him his contract would not be
renewed unless he apologized to Rogers for the Howard
insert incident. Kruger went on to say that his activities in
the Association would be of no avail and he might ,lust as
well drop out.°3 Thereafter in November Griffith offered,
through Kruger, his apologies to Rogers but was told that
the apology would not be accepted On March 3, 1967,
Griffith was advised by letter of Rogers' determination
not to renew the contract which he held.
Upon the foregoing facts it is clear, and indeed
conceded, that Rogers refused to renew Griffith's contract
in March 1967 for the December 1965 conduct in the
Transportation Office which he found offensive. I am not
disposed to accept this long delayed decision of Rogers as
"Seaboard Diecasting Corporation. 137 NLRB 536
"There is a dispute as to whether Griffith deposited the papers "very
gentlemanly ," as he claimed , or dropped them from shoulder height, as
Respondent's witnesses claim I accept Griffith's version
°I do not accept Kruger 's version of this conversation to the effect that
an apology to Rogers would not hamper his changes of a contract renewal
THE HERALD CO. 437
the one which actually motivated the refusal It is more
realistic to relate Rogers' actions to those many others
which he took to eliminate the Union. Here was an
Association official who publicly emphasized his refusal to
deliver inserts and whose Association connections had
thereafter been alluded to by Supervisor Kruger. I
conclude and find that it was because of his Union activity
and Rogers ' determination to counter its effect that
Griffith was refused the renewal of his contract on March
3, 1967, thus discriminating against him in violation of the,
Act.
7 William Spring
William Spring , recently deceased , was a former
distributor of The Herald Co and a member of the
Association who signed an authorization card for the
Union at the June 16, 1966, meeting at the Yates Hotel
(supra)
Spring signed one of the new distributor agreements
(supra ) in March 1967 After doing so he wrote a letter to
Circulation Manager Kennedy , as follows:
After considerable thought I want this completely
understood that I signed this contract without any
negotiations whatsoever
I consider this contract unfair in so much as I was
forced by you and the Herald Company to pay for
papers that were undeliverable and not collected for by
me. I am referring to Thanksgiving day, 1965 at which
time I would have had to break the New York State
Labor Laws in order to deliver these papers.
There was absolutely no negotiations on my part in
the signing of this contract , however, in order for me to
continue to earn my livelihood , I had no other choice.
You were also advised in the past that any
negotiations whatsoever should have been conducted
with Building Service Employees International Union,
Local 200, my authorized representative. Therefore, I
feel that your entire course of conduct has been a
violation of law
Rogers replied to Spring on May 16, stating that in view
of Spring' s claim of duress, coercion and "a violation of
law" Respondent was considering the contract null and
void . Spring replied stating that he considered the contract
in full force and effect and stated his desire to continue
working for the Company and to abide by the terms of
the agreement and he expected Respondent to do as well
Rogers replied restating his earlier determination to
consider the new contract a nullity He reminded Spring
that his earlier contract would expire on April 9, 1967,
and that Respondent expected him to dispose of the
franchise; by that time
Respondent 's refusal to renew Spring's contract stating
he considered the new one a nullity misstates the issue.
Spring did not so state. On the contrary , although
objecting to the circumstances under which he signed it,
he at all times agreed to be bound by it In its
correspondence it is the Respondent who presumes to
raise the claim of coercion and duress on Spring ' s behalf.
Spring's objection , already stated in his first letter, was
that he wanted it understood that he signed without any
negotiations . This is a far cry from the ominous charge of
duress and coercion that Respondent attributes to Spring
as his basic reason Accordingly when, in its brief,
Respondent cites law for the proposition that a contract is
voidable when made under duress and not binding upon
the party submitting to the duress it mistakenly assumes a
fact not in the record , and seeks to misapply the law. The
voidability of the contract was raised not by the alleged
victim , Spring, as the law anticipates , but by Respondent
against whom duress is said to be claimed . Respondent by
relying upon this rule of law would seem to be profiting
by its own misconduct . Accordingly, I reject the argument
that Spring ' s allegations concerning the character of the
contract signing excused Respondent . On the contrary, the
language of Spring's objection , citing an absence of
negotiations , and Respondent ' s longstanding antipathy
towards negotiation as evidenced by the sum of the facts
in this decision clearly establish that Spring was refused a
new contract because he took exception to the unilaterial
character of the document and had complained that such
arrangements as were foisted upon him should properly
have been negotiated with the Union Such a refusal, I
conclude and find , is clearly a discrimination within the
meaning of the Act.
8. Daniel Rothchild
Daniel Rothchild had been with the Company since
1937 and a distributor from April 1955 until July 19,
1967, when his contract was terminated During his
employment as distributor he was one of the principal
figures in the Association and was instrumental in its
affiliation with Local 200 As has been detailed above he
was a frequent subject of Respondent's efforts to thwart
the organizing efforts of the distributors.
Rothchild , like so many of the others, was solicited to
sign a new contract prior to the expiration of the one in
force (the unilateral character of this activity has already
been discussed in detail , supra ) In September 1965
Circulation Manager Kennedy called Rothchild to the
office and offered him the contract they were trying to
impose upon the distributors He offered him $30
additional per week if he would sign it. When Rothchild
protested this unusual offer, after having sought and been
refused mc1e money for so long in the past, Kennedy told
him that Mr . Newhouse, the owner , wanted him on their
side and they wanted him to resign from the Union
Rothchild refused the offer
I have already found that Rothchild was among those
who had sent letters to Respondent in August 1965 stating
their determination not to deliver inserts unless
compensated for it (supra), was among the distributors
refusing to deliver the Howard inserts in December 1965,
and was a party to an arbitration of issue in January 1966
(supra ) after which Kennedy, in discussing the arbitration,
asked Rothchild if he was interested in disposing of his
contract . Rothchild was also among the distributors who
failed to deliver the late printed papers on Thanksgiving
1965
Previously I have detailed Rothchild 's efforts to borrow
money from Respondent and Kennedy 's referral to the
Union for loans, and his frequent statements thereafter to
the effect that "you fellows can't beat Newhouse. Why
don't you resign from the Association ." A month or two
later, in August 1966, Rothchild and Irving, the
Association president , had an extended conference with
William Dempsey whom I have previously found to be
part of the Newhouse operations and a representative of
Respondent herein . In the course of discussing distributor
problems and their poor pay Dempsey produced a slip of
paper from his pocket and told each of them what their
most recent earnings were, observing that he thought it
was adequate . He then commented on the new contract
recently offered to Rothchild and being offered to the
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other distributors. He told the two men that were they to
sign up, the rest of the men would follow and the
promotion money, curtailed as union activity increased,
would be available to all But if they did not sign and
continued their Union activities Newhouse would spend
millions to defeat the Union
Finally on June 1, 1967, Kennedy notified Rothchild by
letter that his contract would not be renewed when it
expired on June 19, and that he should find a purchaser
for it No reason was assigned for this decision Until this
time Rothchild paid his paper bills regularly. Upon
receiving notice of the approaching demise of his franchise
and fearing for losses that would result he began during
the final three weeks to withhold payments to protect
himself against such loss. During this period he withheld
$6,000 which he ultimately repaid after suit was instituted
by the Company The valuation to Rothchild of his
franchise was estimated by him as $17,500.
On July 18, 1967, Rogers wired Rothchild that
Respondent had terminated his contract "by reason of
your failure to pay weekly bills " Rogers testified,
however, that failure to pay his bills was not the reason
for terminating Rothchild, for at the time the letter of
notification was sent him his accounts were actually
current. They knew "that they were going to do that some
time earlier." In fact, he testified, they had decided a year
before, during the summer 1966, to terminate him Rogers
testified that reasons for terminating Rothchild was his
poor promoting, his failure to deliver the Thanksgiving
1965 issue, and the Howard insert incident in December
1965.
A consideration of the confused testimony of Rogers
concerning ther termination of Rothchild's contract
persuades me of its unreliability First Rogers sends the
man a telegram that he is being terminated for
nonpayment of bills that were current a month earlier
when the first termination notice was given Then at the
hearing Rogers testified that Rothchild's termination was
decided upon a year before, in summer 1966. Finally,
when asked for the basic reasons of the July 1967
termination he stated it was for concerted incidents which
occurred in 1965.
Upon all of the foregoing, including the inherent
inconsistencies of Roger's testimony, I conclude and find
that the Respondent actually terminated Rothchild's
contract in July 1967 because of his participation in the
affairs of the Union and as a further devise to thwart it as
representative of the distributors. This I conclude and find
to be unlawful discrimination and interference, restraint,
and coercion.
9 William Irving
Throughout this Decision it is evident that William
Irving, a distributor for 22 years until the termination of
his contract on February 8, 1968, was the most prominent
and active member of the Association and Union, and,
more than any other, was the prime target of
Respondent's campaign to destroy the Association and
avoid collective bargaining in behalf of the distributors. It
is therefore unnecessary to detail further than appears
herein the many and varied forms of hostility Respondent
has visited upon Irving, as leader of the employees.
Suffice it to say that all of Respondent's officials were
aware of Irving's union leadership and activity, and that
all were dedicated in Respondent's behalf to avoid at all
cost dealing with the organization which he headed.
By way of summary it will be recalled that Irving was
interrogated concerning the Union by Kruger, who also
quoted Felts as saying he would "get" everyone connected
with the Union; threatened by Kennedy that his contract
would not be renewed because of his Union activity,
promised, with Rothchild, added compensation by
Dempsey if he signed the new contract, and thus inspire
the others to do likewise; told frequently by Kruger,
Kennedy and Dempsey that the Association would never
bargain with the Union
So much for background. Irving on November 30,
1967, received the first of a series of letters relating to the
termination of his contract. Here he was notified by
Kennedy, without any reason assigned, that on the
contract's expiration on January 10, 1968, it would not be
renewed. He was informed that Respondent had a
prospective buyer for his franchise Thereafter on
December 29 Irving wrote Kennedy stating his willingness
to continue and suggesting that in the absence of any
stated reason for the intended termination he felt it was
because of his union affiliation. In a reply from Rogers
dated January 8, 1968, the reason suggested by Irving was
denied, and it was stated that the Respondent's decision
"was based, among other things, on your many and
repeated violations of the terms of the contract and your
frequent failure to perform the obligations you assumed
under it." Irving's contract was extended to February 10
to give him time to secure a purchaser.
At or about the same time, following the Christmas
vacation, a number of Irving's carrier boys told him they
were about to quit and did so the week thereafter. Irving
discussed the carrier situation with Kruger asking him for
the help of a canvasser to locate available boys. Kruger
admittedly informed Irving that the Company could not
be of any help. Whereupon Irving explained that he had
done everything he could do to obtain replacements, to no
avail, and that it would be necessary for him to cut back
his volume of papers. After interviewing school principals
and stopping boys in the street Irving was only able to
obtain two new carriers. Two weeks later, however, after
Irving had been forced to relinquish his franchise he
observed a canvasser driving through his former territory
with two boys in his car. Following the car he noted that
the two boys were assigned to deliver papers in his former
territory.
Meanwhile it will be recalled, Irving cut back on his
papers but Respondent nonetheless continued to bill him
for them. On January 17 he wrote Kennedy protesting the
continued delivery of the cancelled papers despite his
timely notice, referring again to the critical carrier
shortage. By letter of the same date Rogers called Irving's
attention to his discontinuance of delivery of some of his
papers and warned him that his contract would be
terminated unless the "violation is corrected promptly."
Rogers, however, was apparently aware of the carrier
shortage, having sent Supervisor Kruger to take
photographs of the papers not picked up for want of
carriers. Five days later on January 22, 1968, Rogers
again wrote Irving, this time terminating his contract
"because of your continued violation of your contract."
Upon the sale of Irving's franchise to one Cromer new
carriers, according to Rogers, were almost immediately
available, thus tending to confirm Irving's testimony that
carriers were procured with the assistance of a canvasser
At the hearing Rogers assigned as a further reason for
Irving's termination the considerable number of
complaints filed against him relating to the delivery of
part of the Sunday paper on the previous day. It appears
THE HERALD CO. 439
that during the period involved, Irving's carriers received
3500 papers per Sunday to deliver. The complaints against
Irving which Respondent appears to have made a point of
collecting averaged three per week Rogers testified in this
respect that other distributors also had carriers who
delivered parts of the paper in advance, a conditon that
existed in some areas even at the time of the hearing
When questioned on the identity of them, however, he was
particularly vague, insisting only that he had heard that
Irving was the one who was responsible for the custom
spreading.
In December as part of the traditional Christmas
practice calendars were given to the carriers, through the
distributors, for distribution to customers with resulting
gratuities in most instances. Many of the distributors
refused to pick up the calendars supplied by Respondent
and instead procured a supply of their own which the boys
distributed. As a consequence Respondent was left with a
considerable number on hand. Rogers blamed Irving for
the action which he estimated amounted to a $1900 loss to
the Company. Although this was assigned as one of the
reasons for terminating Irving none of the others involved,
according to Rogers, were terminated for that reason.
Much of the testimony of Rogers and his Circulation
Manager Kennedy was directed at the alleged misdeeds of
Irving and the extent to which he had irritated them as
leader of the concerted activity Some of these have been
recounted herein, many others appear in the record as
part of the testimony of company officials and of Irving
himself Irving's contract termination, although not
effected until January 1968 was, according to Rogers,
actually decided upon by him over a year before, in
December 1966 Rogers, moreover, gave his basic reasons
for his action - "Mr Irving was fomenting whatever
harrassment he could of the Company " "He was
instigating, he was inspiring it."
Consideration of the foregoing facts and circumstances,
being as they must but summary and exerpt of hundreds
of pages of record, and particular consideration of Rogers'
own revealing testimony, amply supports the allegation
that William Irving was terminated because of his
leadership in the concerted activities directed at
Respondent in behalf of the distributors. While it cannot
be gainsaid that in certain respects Irving's personal
behavior was not exemplary, it is quite apparent from the
testimony of all concerned that Respondent reacted in
kind. I accordingly conclude and find that the termination
of William Irving's contract constituted unlawful
discrimination against him and interference, restraint and
coercion
10. Peter Malvasi
Peter Malvasi was a distributor of the Herald for 29
years, and a member of the Association for 20. He
thereafter joined the Union at the Yates Hotel meeting in
June 1966 Until early 1965 Malvasi held a franchise in an
area of town subjected to considerable urban renewal and
to an expansion program of Syracuse University Because
of the unprofitable nature of the territory he sold his
franchise and purchased a motor route. Four months
thereafter, in mid-1965, Kennedy called Malvasi and told
him the new owner of the franchise was having his
problems and offered him his old territory at a more
advantageous rate. Malvasi sold the motor route and
signed a new contract for his old territory which this time
included more money, individual corner drop-off facilities,
and a promise of promotion money (supra)
The condition of Malvasi's territory continued to
worsen and he kept Kennedy constantly aware of the
situation During the summer of 1966 he discussed this
situation at great length with Kruger who rode the
territory with him and thereafter affirmed that he had a
serious problem. Kruger agreed to see if anything could be
done about it
To complicate matters the promotion money upon
which Malvasi heavily relied began to drop off in June
1966 (supra)
Thereafter during the fall of 1966 Malvasi was among
those testifying at the representation hearing. A month
after he had testified Malvasi made another of his periodic
requests for assistance from Kennedy. Kennedy told him
that he felt he had lied on the witness stand and in
consequence "he would never do anything for me."0J
Part of Malvasi's economic problem involved his
carrier boys. These were hard to hire and harder to keep.
During their short tenure they would be lax in the
collections required of them and frequently upon quitting
failed to turn over to Malvasi the total amount collected.
Their parents were of little assistance in this department.
Malvasi kept Respondent aware of this situation as well
as the physical deterioration of the neighborhood.
Meanwhile he used such promotion money as he received
to bolster the precarious accounts, and used his personal
funds as well In September 1967 he had a conference
with Rogers at which he outlined the whole problem.
Thereafter, after consulting with Kennedy, Rogers told
him there was nothing he could do for him as long as he
was "affiliated more or less with fellows like Irving and
Viggiano who want their bread buttered on both sides and
want their cake and eat it too." He went on to say that
so long as they wanted to be employees instead of
independents he could not do anything for them '°
Collections worsened and Malvasi began to accumulate
a balance on his account with Respondent despite Rogers'
insistence that he pay it up. He again went to Kennedy in
early 1968 and asked for help Kennedy offered him the
compensation accruing from the 2-cent agreement (supra)
if Malvasi would sign it and agree to be bound on the
subject of delivering inserts. Malvasi, consistent with the
policy adopted by the Association members, refused to
sign it. Thereafter, as collections became increasingly
difficult and in the absence of promotion moneys which
had sustained him in the past he continued to deduct the
moneys from his bill and a balance accrued On February
8, 1968, Malvasi was informed that he was being
terminated because of the balance he had accumulated on
his bill.
Two items color the sincerity of Respondent's
termination of Malvasi's contract: Respondent's linking of
his problems with the concerted activities of named
associates, and its disparate treatment of distributors in
marginal areas.
Unquestionably Rogers' and Kennedy's lack of
sympathy for Malvasi's financial burdens, none of which
were of his own making, stemmed from his espousal of
the Association, his friendship with its leaders, and their
consistent contention that distributors were employees and
not independent contractors. Indeed Rogers and Kennedy
so stated, Kennedy adding his comments on Malvasi's
"Kennedy admits to this accusation but does not allude to the threat
contained with it.
"Rogers testified that this conversation took place but denies the
reference to Irving, Viggiano, and the independents I do not credit his
denial
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appearance at the representation hearing
Of no less significance was Respondent's failure to
respond to Malvasi's problem. After ascertaining that the
condition existed Rogers, Kennedy and Kruger did
nothing. However, Kennedy readily admitted that in the
same period three distributors, Napier, Bovalino, and
Friedman, came to him for assistance in their
deteriorating territories and they were given promotion
money "to keep the routes together." Significantly none
of these three assisted distriburors were shown to have
been members of either the Association or the Union.
Upon the foregoing circumstances, interlined as they
are with patent animosity toward the Union and its
adherents, including Peter Malvasi, I conclude and find
that his contract's termination by Respondent was
unlawful discrimination against him
11. Norman Smith
Norman Smith, a distributor for the Herald, signed his
Union authorization card in June 1966 and tesitifed
concerning it before me on June 28, 1968, in this
proceeding. Thereafter, on July 10 he was notified that his
contract was being terminated for failure to pay his bill.
Smith, like Malvasi (supra), was having serious carrier
problems which involved the loss of a substantial amount
of collections. Not only did he have to subsidize these
boys to keep them on their routes but was plagued by
their continued withholding part of their collections while
they remained. The area, like Malvasi's, was a
deteriorating one, and was recognized as such by
Respondent. Until January 1968 he never had "owed a
balance" on his bill but by that time the situation was
becoming so critical and the help from Respondent so
meager that he became desperate. He spoke with Kennedy
five or six times and explained to him that the only thing
that could straighten the situation out was more money.
Each time Kennedy would recommend that he sign the
"two cent agreement," the arrangement rejected by the
distributors because it involved an agreement to handle
inserts (supra), Smith refused. Kennedy offered no
alternative
Smith's most recent contract, signed in June 1967,
provided him a $26 weekly increase, after Smith had
asked for a $55 to meet his peculiar route problem.
Similarly, promotion money such as was consistently
given to non-union distributors Napier, Bovalino, and
Friedman (supra), was reduced from $1949 in 1965, to
$614 in 1966, with no promotion payments since May of
that year.
The termination of Smith's contract for non-payment
of his bill in July 1968 does not ring completely true
Obviously he was, like Malvasi, enmeshed in economic
troubles not of his own making and was driven to the
expedient of withholding from his bill. Meanwhile
Respondent's only assistance was to seek to force upon
him the 2-cent agreement being opposed by Smith's
bargaining representative. Smith, like many of the other
organized distributors, was placed in an economic bind by
the simple expedient of withheld production money while
non-union distributors in precisely the same situation were
favored. Finally in July, after testifying before me in June,
he was terminated for bills that had begun to run in
January. Upon all of the foregoing I have no alternative
but to conclude that the termination of Norman Smith's
contract was unlawful discrimination against him and was
not for the reason assigned.
12 Joseph A. Frey, Sr.
Joseph A. Frey, Sr., was employed by The Herald for
33 years, first in the mailing department, and since 1962
as a distributor As an employee in the mailing
department he was President of Local 73 of Mailers
Union, a Charging, Party herein. For reasons detailed
hereafter he purchased a distributorship in 1962 and
immediately became active in the Association and
according to President Rogers was the one responsible for
the Association's affiliation with Local 200, the Union In
fact Rogers testified that it was a source of resentment to
him that the Mailers Union had loaned $500 to the
Association, a transaction which he considered a form of
harassment of the Company.
Joseph Frey, Sr , is further identified as the father of
Charles Frey, the distributor whose contract termination I
have found to be a discrimination against him. As will be
clear from further reading herein the misfortunes of
Charles Frey and of Reichert who succeeded to his
contract most certainly stem from the relationship of the
two Freys, for the reasons which follow
Frey's problems began with the automation of the
mailing room in 1962, at which time it became necessary
to layoff six mailers Frey was one of those involved As
president of the Mailers he was called in to discuss the
problem with Rogers, together with Lanza, the Mailer's
chapel chairman, and Stone, a member of the local and
more recently its president. It was determined at this
meeting that six "situations," as the jobs were called, had
to be abolished but that every effort would be made to
lighten the burden of those laid off Five of the six were
taken care of by reassignment, three of them being placed
on the substitute list, an arrangement which would provide
them with a reasonable amount of employment, with the
assurance of full employment as new "situations" were
created thereafter. Frey, the top man on the list was
handled in different fashion. He was offered a
distributorship franchise, with Respondent loaning him
$13,000 to cover its cost, repayment to be at the rate of
$15 per week after the first six months. In return Frey
agreed not to assert his seniority on the substitute list in
the mail room. This arrangement was intended, according
to Rogers, to assure the three laid off mailers maximum
employment as substitutes.
On January 9, 1967, Frey was called by Chapel
Chairman Lanza to come to work in the mail room as an
extra employee, there being no one available on the
substitute list." He reported to Foreman Peitz who
assigned him to a job on the inserting machine. At 2 p.m
he was taken off this machine and assigned to "the line,"
a job requiring the simultaneous performance of a number
of operations and considered by Frey as the most difficult
in the mail room. Later in the day Foreman Peitz called
Frey to a meeting with himself and Lanza and Stone of
the Mailer's Union. Peitz told them that he was supposed
to fire Frey but could find no basis to do so. Peitz went
on to say that actually Frey had done a good job and he
could not understand why he (Peitz) had been put on the
spot, for if Frey was permitted to return to work on the
following day it would be Peitz who would be fired.
Lanza, of the Union, corroborated Frey's account of the
incident, describing the complicated job to which Frey had
been assigned, the constant inspection of his work by
Foreman Peitz and the fact that when, in the course of the
conference with Frey as described above, the group went
"The credited testimony of Lanza and Union President Stone
THE HERALD CO. 441
to Rogers' office, Peltz spoke privately to Rogers and
then returned to the group stating that he had orders to
fire Frey if he returned to the mail room on the following
morning. Frey did not thereafter work in the mail room
He continued to operate his distributor franchise. Rogers'
explanation of his position bears repeating thus:
A. I had no objection to Joe Frey working in my
Mailing Room. He had worked there for twenty-five
years, but on this particular occasion, he had-promised
that he would not step into that mail room as long as
he was a franchised distributor He made that promise
to Bob Glicker in my office and I reported - I knew
that the Mailers knew this, and I knew that Mr. Lanza
knew this, and this is why I told him that I didn't think
that Joe Frey should work in my Mail Room when I
had a promise that he would not.
Q. What was so terrible about Mr. Frey being a
distributor and coming to work in the Mail Room when
there was no one else available? What was it that you
objected to in that relationship?
A. I had no objection except I was not convinced
and I'm not convinced today that there was no one else
available.
Q. Even if there was someone available, Mr. Rogers,
What difference would it make to you as long as Joe
Frey was capable of performing that job whether or not
Joe Frey worked in your Mail Room?
A. Simply that the man had made a promise that the
job would go to other people.
Q Did you have any knowledge that there were
certain people available who were not called on that
day9
A No, not on a particular day, but they had been
called repeatedly over the many months, as a matter of
fact, for five years
Frey's exclusion from the mail room did not end his
difficulties with Respondent It will be noted that Frey
was among those who had sent letters in August 1965 to
Respondent refusing to handle inserts, and became
embroiled in a heated argument with Rogers and Felts
over the merits of the distributors' protest On October
13, 1967, Frey had a meeting with Rogers, Kennedy and
Felts. Rogers reminded him that there was still a balance
due of $10,140 on his franchise and that unless he repaid
it his contract would not be renewed. A bill for the
amount of the debt had several days previously been
mailed to Frey. Rogers' explanation of this demand was
based upon the contention of distributors that they were
employees and not independent contractors and that
giving them an interest free loan would be an unfair labor
practice. He quotes himself as telling Frey: "Joe, you
know very well that we don't want you as an employee
and you don't want to be an employee of ours, but in view
of this Decision (3-RC-3965), I have no choice but to ask
you to pay up the $10,000 Now, if you do that, we'll
continue your contract, we'll continue to do business with
you as we always had as an independent franchise
operator." Both Rogers and Kennedy were adamant on
the matter of repayment, suggesting when Frey sought
relief that his personal savings should be ample to cover it
and that if he would sign the two-cent agreement (supra),
he would have funds to pay off the loan or that he could
obtain a loan from the Small Business. Administration
Finally, after being extended for two weeks Frey's
contract was sold in April 1968
In assessing Respondent' s reason for calling in Joseph
Frey's loan and selling his contract one item of testimony
is most significant. Thus Daniel, Rothchild credibly
testified that on an occasion in early 1966 when he was
considering selling his franchise to Charles Frey, Joseph,
Frey, Sr's son, he-consulted with Kennedy after learning
that Kennedy had misrepresented the value of the
Rothchild franchise When he asked Kennedy why he had
done this, Kennedy replied, "We've,got too many Frey's
around here already."
Everything about Respondent's transactions with
Joseph Frey, both in his mail room employment and the
termination of his contract, amply demonstrates that it
was determined to eliminate Frey, in keeping with its
observation to Rothchild. Frey was responsible for
bringing in the Union as affiliate to the Association and
his Mailers' Union loaned money to the Association at a
critical point in its existence, and Rogers' testimony
forcefully demonstrated his knowledge and resentment of
both. Moreover his testimony quoted above explained the
reason for calling in the loan tied it directly with the
Regional Director's decision in the representation case
which he had resisted in every other respect up to and
through this proceeding. Upon all of the foregoing I am
fully persuaded that Joseph Frey, Sr. was deprived of
substitute work in the mail room, as described above, and
his contract as a distributor was taken from him not for
the reasons assigned but because of his close ties with the
unions involved herein and with their activities in behalf of
the distributors, thus constituting discriminations in
violation of the Act.
1. The Refusal to Bargain with the Mailers
Intertwined with the running encounters between
Respondent and Joseph Frey, Sr , as described above, was
the bargaining relations between the Mailers Union and
Respondent, some of which has been alluded to above.
The Mailers Union has long been the recognized
bargaining representative of Respondent's employees in a
unit described as
All employees performing mailing work at
Respondent's Syracuse, New York plant exclusive of all
other employees, office clerical employees, professional
employees, guards and all supervisors as defined in the
Act.
Respondent in its Answer concedes the appropriateness of
this unit as it does the existence of a current contract
between itself and the Mailers covering this unit. As
bargaining representative it was the Union that bargained
with Rogers over the disposition of employees laid off in
1962 as a consequence of automation, and among the
results of this bargaining was the establishment of the
substitute list and the purchase of a distributorship for
Joseph Frey, Sr. (supra)
Employees Lanza and Stone, chapel chairman and
president of the Mailers, respectively, credibly testified
that prior to March 1967 there had been an upsurge of
work in the mailing room. In part this-was created by an
increase of advertising inserts, much of which, because of
help shortage, had to be "farmed out" to the distributors,
a condition that had caused the insert protests recorded
herein
As a consequence of this increase of work and shortage
of workers the Union representatives met with Rogers a
number of times and requested the addition of
"situations" in the mail room - a "situation " generally
speaking being a full time position within the terms of
contract definition These requests, it should be noted,
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were made contemporaneously with Joseph Frey's one day
assignment to the mail room in January 1967 to help
relieve the work pressure (supra)
A meeting was held between Rogers and the Union
officials in Rogers' office on March 28, 1967, at which
time the Union again protested the excessive amount of
insert work and the failure of Respondent to add new
"situations." Then, as before, Rogers stated he "would
look into it."96 As the conversation progressed Rogers
stated his irritation at the Mailers for loaning money to
the Distributors Association and Local 200, considering it
a stab in the back He then chided them for hiring Joseph
Frey into the mail room, stating he did not want him
there (supra) Finally, he stated that if they agreed not to
hire Frey he would talk with them about putting some
"situations" in. The Union thereafter "made a deal" with
Frey not to seek employment off the substitute list and
three stiuations have since been added.
Citation of authority is hardly necessary to establish
that placing a condition upon bargaining such as a refusal
to hire a certain otherwise qualified individual is an
unlawful refusal to bargain. Upon employee Stone's
credited testimony that Rogers so qualified his addition of
situations I so conclude and find.
It is Respondent's contention that by the terms of the
contract in force between itself and the Mailers the subject
of adding "situations" was not a bargainable issue Thus
Section 10 of the contract states
Foremen of offices have the right to determine the
number of men to be employed ... .
and Section 18 states:
It is expressly agreed that the rights and relations of the
parties hereto are covered by the terms of this contract
and scale of prices
The agreement to the contrary notwithstanding Rogers
testified that the subject of adding "situations" had come
up a number of times, "When they asked for it on this
particular occasion, I told them I would investigate."
Regardless of what rights in the matter may have accrued
to Respondent by the terms of the contract Rogers most
certainly waived them by acceding as he did Moreover, in
the absence of a clear and unmistakeable showing that the
Mailers' had waived their statutory right to bargain
concerning additional "situations" it cannot be said that
further bargaining on the subject is precluded " I read
nothing in the contract clause which gives the foreman
"the right to determine the number of men to be
employed" that may be considered as an exclusive or
unchangeable right, or one that cannot be waived as
Rogers waived it here. I accordingly reject Respondent's
contention that the contract precludes the bargaining
which actually transpired.
J Analysis and Ultimate Conclusions
Elsewhere in this Decision the issues as they are framed
by the pleadings and proof are enumerated. To the extent
practical the conclusions set forth herein, as they relate to
the facts found above, will be considered in the same
order
1. The employee status of the distributors
It had already been found and concluded the
Respondent is the employer of the distributors herein and
that these distributors are employees within the meaning
of the Act. By way of summary, reference is made to the
Regional Director's Decision and Supplementary Decision
(Appendices A and B, infra) wherein it was determined
with Board approval that the distributors are in fact
employees and not independent contractors or supervisors.
Nor has it been established to my satisfaction that there is
evidence not previously considered or available that would
alter the final determination of their status. I therefore
renew my ruling made at the hearing that I am precluded
from permitting the relitigation of this issue in a directly
related complaint case.68 I therefore conclude and find that
for reasons previously discussed the distributors herein are
employees within the meaning of the Act.
2. The single employer status of The Herald and Post
Standard
It has been found that The Herald Co., is the employer
of distributors involved herein (supra) It has also been
stipulated that the distributors of the Post Standard have
duties identical to those of The Herald Co., and are
subject to the identical direction and control. The record
is replete with testimony relating to the common control
of all distributors by management, including Rogers,
Felts, and Kennedy Indeed at no point in the hearing
before me was it seriously contended that the two
newspapers were separate entities Outstanding labor
agreements are in force with the two papers in common,
pay checks for both are issued by The Herald, and
structurally the Post Standard was described by President
Rogers as a division of The Herald
Upon all of the foregoing I conclude and find that the
criteria for single employer status established by the
Board" exists with respect to the two newspapers herein
and that the Post Standard and The Herald constitute a
single employer of the employees involved herein
3 The status of William Dempsey
In its answer Respondent denies that William Dempsey,
identified in the record as a representative of the
Newhouse interests, is an agent or supervisor of
Respondent Elsewhere herein I have relied upon credible
testimony to find that Dempsey, in the company of
admitted supervisors, made statements to employees in
behalf of management and in support of its position in the
existing labor dispute. Thus he met with Irving and
Rothchild, and canvassed a number of other distributors
to ascertain their position in the anticipated strike activity
Under such circumstances, and in the absence of any
evidence to the contrary, I conclude and find William
Dempsey to be an agent of Respondent in the matters in
which he is found to have participated
"Rogers confirmed these requests , stating that he had investigated the
situation each time but found no need He did agree , however, in April
1967 to add a new situation This decision occurred a month after the
Mailers filed its unfair labor practice in the instant proceeding
"New York Mirror, 151 NLRB 834
"Pittsburgh Plate Glass Co v N L R B. 313 U S 146, 162, N L R B
v Sagamore Shirt Co, 365 F 2d 898 (C A D C ), N L R B v Union
Brothers Inc. 403 F 2d 883, 887 (C A 4)
"Editorial . "El Imparcial, Inc ." 123 NLRB 1585, 1593
THE HERALD CO. 443
4. Interference, restraint, and coercion 5. The refusal to bargain with representatives of the
distributors
Upon evidence credited by me I have made positive
findings of actions by Respondent's officials, agents and
supervisors alleged to constitute interference, restraint and
coercion of its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
Thus as appears in considerable detail heretofore
Respondent's supervisors Conboy, Mulvey, Felts,
Meadvin, Monticello, Kennedy, and Kruger systematically
questioned distributors concerning their union preferences,
attitudes, and membership, the nature of union meetings,
and whether or not they had attended or planned to attend
(supra) Similarly it has found that distributors were
sought out by management, including Conboy, Felts,
Monticello, Meadvin, Kruger, Caruso, Kennedy, Rogers
and Dempsey and in various and sundry manners were
threatened and warned that their contracts would not be
renewed, promotion moneys would not be available to
them, and that other beneifts would be withheld unless
they withdrew from the Association and Union, and
desisted from the organized effort in which they were
engaged (supra) In the same vein these same individuals,
it has been found, assured distributors of better conditions
and working facilities if they would forsake the Union
(supra) And in this respect it is well established that on at
least three occasions Circulation Manager Felts prepared
union resignation letters to facilitate the withdrawal.
(Supra)
On numerous occasions management, through Conboy,
Monticello and Felts made it clear to employees, for
example, Flaherty, Bolognone, Lormi and Charles Frey,
that Respondent had spies at the union meetings (supra).
And on one occasion Conboy sought to enlist an
employee, Sutton, to engage in the surveillance of a
meeting and report to him those who attended (supra). On
another occasion Conboy forbid Flaherty "talking up" the
Union on company property (supra)
As previously noted above and as found in detail above
Kruger, Felts, Kennedy, Mulvey and Rogers
systematically engaged in soliciting the withdrawal from
the Union by threats and by promise of added
compensation to the distributors, including Griffith,
Rothchild, Parkinson, Lorini, Malvasi, Garris, Bologone,
and others (supra).
In the course of the campaign summarized above
management representatives were constantly reminding
the distributors that Respondent would never bargain with
the Union and that Newhouse, the owner, would spend
millions to defeat it.
The foregoing course of action on Respondent's part
illustrates the classic form of an effort to defeat the
organization of employees Thus by widespread
questioning, threats and promises related to union
membership and withdrawal from it, by aiding in such
withdrawals, by imposing a restriction on union
solicitations on company time, by engaging in the
surveillance of union meetings, by enlisting spies from
among the employees and by stating an unalterable
determination not to bargain with the representatives of
its employees, by soliciting contracts from individual
employees, by all of these, readily recognized as a positive
campaign to undermine and defeat the Union, I conclude
that Respondent thereby interfered with, restrained and
coerced its employees in the exercise of their right of
self-organization in violation of Section 8(a)(1) of the Act.
a. The appropriate bargaining unit
It has been found by the Regional Director with Board
approval and I therefore conclude and find that the
following is an appropriate unit for collective bargaining.
All city, motor route, street sales, country and suburban
distributors employed by the Employer at Syracuse, and
the central New York area, but excluding all other
employees, office clerical employees, guards,
professional employees and supervisors as defined in the
Act.
b. The Union's majority status
An analysis of the authorization cards signed by the
distributors and given to Union discloses that a total of 54
of Respondent's 104 distributors designated the Union as
their representative on or before June 24, 1966 (supra). By
December 1, 1966, a net addition of 5 distributors
increased the majority of the Union to 59 (supra) Upon
this clear showing of a greater majority I conclude and
find that at all times after June 24, 1966, and after
December 1, 1966, a majority of Respondent's employees
had authorized the Union as their bargaining
representative. Moreover, based upon the results of the
election held in Case 3-RC-3965 on January 4, 1968, and
thereafter certified by the Regional Director on January
23, 1968, I conclude and find that 63 of Respondent's then
109 distributors selected the Union as their bargaining
representative and, as certified by the Regional Director,
it is designated as the distributor's exclusive collective
bargaining representative, pursuant to Section 9 of the
Act.
c The demands for and refusal of collective
bargaining
It has been found that on numerous occasions
beginning on June 24, 1966, to the present time, and
specifically on that date, July 5, 1966, on January 6, 1967,
and most recently after the Union's certification, on
February 1 and 12, 1968, the Union requested of
Respondent that it be recognized by it as the exclusive
bargaining representative of the distributors and that
negotiations of a collective agreement be commenced
(supra) In response to these requests, and in particular on
July 6, 1966, January 6, 1966, and February 8, 1968, the
Respondent has specifically refused to either recognize the
Union's majority status or bargain with it on behalf of the
distributors.
I have concluded and found that between June 24,
1966, and January 23, 1968, the date of the Union's
certification, the Union represented, in fact, a majority of
Respondent's distributors. It is well settled, of course, that
an employer may insist upon a Board election as proof of
a union's majority. None was ever insisted upon here,
Respondent vigorously protesting at every turn that these
were not employees. It is equally well settled that an
employer may not lawfully refuse to bargain if such a
refusal is not motivated by a bona fide doubt as to the
Union's majority status in an appropriate bargaining unit,
"but rather by a rejection of the collective bargaining
principle or by a desire to gain time within which to
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undermine the union."S0 Respondent during this period
specifically rejected every overture directed to bargaining
and has consistently engaged in conduct which I found to
constitute unlawful interference, restraint and coercion
(supra), and has terminated the contracts of 12
distributors for reasons which I have found to be
discriminatory (infra) Based upon the nature of the
conduct itself, as well as upon the very testimony of
Respondent's officials, I find this conduct to have been
calculated to undermine the Union's established majority.
Under such circumstances I have no hesitancy in
concluding that Respondent's refusal to bargain with the
Union during the period between June 24, 1966, and
January 23, 1968, lacked the good faith required of it and
accordingly constitutes a refusal to bargain in violation of
Section 8(a)(5) of the Act, as well as further interference,
restraint and coercion in violation of Section 8(a)(1) 51
Since January 23, 1968, the Respondent, pursuant to
Section 9 of the Act, was obliged to recognize and bargain
with the Union as the certified bargaining representative
of its distributors. This it has expressly refused to do,
despite the mandate of the Act and the Board's
certification. Under such circumstances I find that
Respondent's refusal to bargain with the Union after
January 23, 1968, constituted a further refusal to bargain
in violation of Section 8(a)(5).
d. Conduct constituting further refusals to bargain
with the Union as representative of the distributors
In addition to the outright refusals to bargain with the
Union detailed above the facts found herein disclose a
pattern of conduct which I find to be equally unlawful.
The handling of inserts, it will be recalled, was a matter
of extreme irritation, as far back as August 1965 when the
distributors each wrote Respondent refusing to make the
inserts without added compensation . Beginning in
September 1965 President Rogers initiated the solicitation
of a new contract among distributors, the purpose of
which was to explicitly require the delivery of a "complete
paper, including inserts." By June 24, 1966, many of the
distributors had signed new contracts at Respondent's
behest, many others, for the most part active members of
the Union, refused to - sign . The record is replete with
evidence of Respondent's efforts after June 24, 1966 (by
which time the Union had requested and been refused
recognition), to procure signatures on new contracts, in
many cases in spite of the individual distributor's
protestation that such matters should be handled through
the employees' bargaining representative. Indeed it is
stipulated among the parties that 60 such agreements were
obtained. (supra).
Citation of authority is hardly necessary to conclude
that an employer, faced with evidence of a union's
representative status, including an official Board
certification, is precluded from dealing individually with
his employees in matters of wages and working conditions.
As Respondent has admittedly done so since June 24,
1966, and again since January 23, 1968, that date being
the Union's certification, I conclude and find that by its
unilateral promulgation of new and revised contracts
among its employees without consultation with the Union
Respondent has further violated Section 8(a)(5) and (1) of
the Act.
"Joy Silk Mills. Inc. 85 NLRB 1263, 1264, enfd 185 F 2d 732
(C.ADC)
"Irving Air Chute Co v NLRB , 350 F 2d 176 (C A 2).
It has been found that the funding of distributorships
with promotion money was a standard practice in
Respondent's operations (supra) This money was clearly
a part of the overall remuneration of the distributor and
because it so intimately affected the working relations of
the distributor and his carriers it is most certainly a
working condition. To the extent that Respondent, upon
the intensification of the Union's activities after June 24,
1966, withheld the promotion money of certain of its
distributors, and refused at all times to discuss the matter
with representatives of the Union this clearly constituted
unilateral changes and curtailment of a vital element of
the employee's wages. Obliged as it is to consult with the
employees' chosen representative upon request
Respondent's refusals are in derogation of its obligation
I accordingly conclude and find that Respondent, by its
withholding of promotion money from certain of its
employees, having first failed to consult with their
bargaining representatives, further refused to bargain in
violation of Section 8(a)(5) and (1).
The matter of making inserts being a critical one with
both employees and management Respondent's efforts to
settle the matter would be understandable. By its letter of
October 27, 1967, announcing the rise in the price of the
paper it offered all distributors an increase in
compensation if they would sign an agreement to make
the inserts. This was referred to herein as the "two cent
agreement" (supra). Quite apart from Respondent's
failure to consult with the Union in matters so vital to the
employees' income it chose to do so by imposing as a
condition upon their added income, the withdrawing of
their one objection, inserts, that was so vital to the
running labor dispute It is well settled that the imposition
of such a condition is in itself an unlawful refusal to
bargain,62 and I so conclude and find. And indeed by
intruding itself unilaterally into the matter of increased
wages Respondent in this added respect also refused to
bargain. By such conduct I conclude and find that
Respondent has further violated Section 8(a)(5) and (1) of
the Act
The cancellation of turkey awards to certain of its
distributors in November 1967 stands on no different
ground. I see no cause to discuss whether turkeys are or
are not an appropriate subject of bargaining here. The
awards were, in fact, an added emolument for increased
production. Whether this emolument would take the form
of cash, or what cash may buy, is really immaterial. What
is material is that certain of the employees were deprived
arbitrarily of their turkeys without any prior consultation
with their bargaining representative. This I conclude and
find to constitute a refusal to bargain in further violation
of Section (a)(5) and (1) of the Act.
In summary, it is to be noted that the record abounds
in testimony, including that of Respondent's own officials
and supervisors, which clearly portrays Respondent's
continuing animosity to the Union and those who lead or
espouse it. In this respect Respondent's witnesses amply
establish not only that they refused recognition and
bargaining but that they indulged in practices detailed
above that the Board and courts consistently consider
unlawful refusals to bargain In an effort to justify its
conduct Respondent vigorously disavows any obligation to
bargain with representatives of its distributors for the
reason that they are not employees. We have passed this
point in assessing legal liability The Board has established
the employee status of the distributors with a degree of
"Butcher Boy Refrigerator Door Co. 127 NLRB 1360.
THE HERALD CO. 445
finality which provides me no alternative but to conclude
as I have" that these distributors are employees for the
purposes of the Act. Having concluded as much
Respondent's bargaining obligations to these employees
from the date upon which bargaining was first requested is
fixed. Having flouted these obligations it follows that in
the respects noted above Respondent has refused to
bargain with its employees' exclusive bargaining
representative in violation of Section 8(a)(5), and has
thereby interfered with, restrained and coerced its
employees in the exercise of their statutory rights in
violation of Section 8(a)(1).
6. Refusal to bargain with the Mailers' Union
The instant proceeding arises out of a consolidated
complaint which includes allegations based upon a charge
filed by the Mailers' Union in Case 3-CA-3179. The
complaint alleges in this respect and Respondent's answer
admits (1) that the following is an appropriate unit for the
purposes of collective bargaining "All employees
performing mailing work at Respondent's Syracuse, New
York plant, exclusive of all other employees," with the
usual supervisory, professional and guard exclusions, (2)
Local 73 has been designated by the employees in this
bargaining unit as their exclusive bargaining
representative, and (3) that by virtue of its representative
status Local 73 and Respondent have executed collective
agreements in behalf of the employees in the unit, the
most recent of such agreements having an expiration date
of March 31, 1969. Upon the foregoing I conclude and
find Local 73 to be the exclusive bargaining representative
of Respondent's mailing room employees at all relevant
times herein.
As found above (supra) there was a need for additional
"situations" in the mail room and bargaining had been
had on the subject. Respondent tacitly confirmed this by
creating three new "situations" prior to the hearing before
me. It is true, of course, that this matter of new
"situations" had amounted to a running dispute between
Union and employer, but such is the ingredient of
collective bargaining. What is not proper, however, was
the manner in which this bargaining became intertwined
with Joseph Frey, Sr., whose misfortunes are considered
elsewhere (supra) In sum it has been found that
Respondent, by Rogers, stated at one of his conferences
with the Mailers' representatives that he was irritated that
they had given financial aid to the Distributors
Association and had hired Joseph Frey into the mail room
(supra) In conclusion he stated that if they would agree
not to thereafter hire Frey he would talk to them about
adding new "situations."
Clearly Rogers was insisting upon the exclusion of
Frey, a discrimination in and of itself (infra) as the
condition upon which bargaining over "situations" would
proceed Such a condition upon bargaining clearly
discloses Respondent's bad faith in the matter, the like of
which has been consistently proscribed by the Boards' I
accordingly conclude and find that by conditioning
bargaining with the Mailers upon their agreement not to
seek the placement of Joseph Frey Respondent thereby
refused to bargain with the exclusive bargaining
representative of its mail room employees in violation of
Section 8(a)(5) and (1) of the Act
7. Unlawful discrimination
a. The contract terminations
Elsewhere in this Decision I have found facts which
establish to my satisfaction that as the contracts of
Richard Flaherty Daniel Rothchild
Elmer Wili Howard Reichert
Charles Frey William Irving
Arthur Pichette Peter Malvasi
William Griffith Joseph A. Frey, Sr
William Spring Norman Smith
came before it for consideration either at renewal time or
when Respondent chose to consider it Respondent in
terminating such contracts or refusing to renew them did
so not for the reason assigned but in each case because of
the particular distributor's interest or membership in the
Union. Upon review of all findings and conclusions made
to this point it is apparent that Respondent's action was
motivated by the same determination to thwart the Union
as was manifest in its other unlawful conduct. I
accordingly reaffirm my findings and conclusions made
previously that the termination of the contracts of the
distributors named above constituted discrimination
against each of them in violation of Section 8(a)(3) of the
Act, as well as interference, restraint and coercion of its
employees in violation of Section 8(a)(1).
b Miscellaneous discriminations
Detailed in the findings herein are a number of
incidents which in each case relate, as described, to the
union membership of the individual concerned. I refer to
(1) the denial of a loan to Daniel Rothchild (supra) (2) the
insistence that Joseph Frey, Sr., immediately repay a
$10,000 loan to the Company (supra) (3) the withholding
of usual bonus money from Reichert (supra) (4) the
refusal to follow its customary policy of reimbursing
Reichert for corner box losses (supra) (5) the withholding
of Reichert's "Sunday allowance" (supra) and (6) the
withholding of promotion money from a considerable
number of distributors who were members of the Union
while continuing payments to those who were not (supra)
Each employee upon whom these reprisals were visited
was closely tied to the Union. Thus Frey was the one who
brought in Local 100, and Rogers knew it Reichert was
the replacement for Charles Frey whom Rogers wanted
off the job, stating "we have too many Freys here as it
is." Rothchild was treasurer of the Association, and Irving
its president.
In each instance Respondent seeks to assign economic
or operational reasons for its action. What is significant is
that the consequences always followed hard on the heels
of some particular phase of union activity, or, as the
Court of Appeals for the Fifth Circuit stated in an
analogous context
the difficulties inherent in his case only became
seriously unsupportable to his employer when he
became secretary of the Union ....ss
Upon all of the foregoing findings, including
Respondent's manifest antipathy to the organizing efforts
of its employees and to the Union, I conclude and find
that in the instances enumerated above Respondent in
each case discriminated against the employee involved for
reasons of union or collective activity thereby violating
"N L R B v. Sagamore Shirt Co. supra
"Butcher Boy Refrigerator Door Co, supra "Agwihnes, Inc v N L R B. supra, fn 37
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a)(3) and (1) of the Act
c. Respondent 's defense
Detailed among the findings herein (supra) are accounts
of the terminations of twelve distributors and of a number
of individual incidents, all of which are alleged to be
discrimination against the individual concerned by reason
of their membership in and activity on behalf of the
Association, and thereafter the Union, or by reason of
their participation in collective activities in support of the
Union's representative status Respondent seeks to defend
its action in these regards by reliance upon its unswerving
position that the distributors are not employees but are
independent contractors with whom it is free to deal as it
sees fit. Additionally, it is contended that Respondent was
justified in the actions which it took by the nature of the
conduct and activities in which the distributors indulged
It is necessary, therefore, to consider the employee
conduct which Respondent claims as justification.
During the rocky course of relations between the
Association and later the Union on the one hand and
Respondent on the other, a variety of irritants emerged.
These included the inserts, the refusal to obtain promotion
money, the withholding of payments, Irving's criticism of
the Company on a radio program, Wili's constant
criticism of company policy, Rothchild's alleged fight with
a blind man, the hectic visit of Irving to Rogers' office
and many others already discussed.
It is well established, of course, that an employer is free
to discharge an employee for any reason whatever, so long
as it is not motivated by the employee's participation in
concerted activities, or by his membership in or espousal
of a labor organization. Thus as was stated by the United
States Court of Appeals for the Second Circuit in
N L R B. v. Great Eastern Color Lithographic
Corporation: 56
The issue before us is not, of course, whether or not
there existed grounds for discharge of these employees
apart from their union activities The fact that the
employer had ample reason for discharging them is of
no moment. It was free to discharge them for any
reason good or bad, so long as it did not discharge
them for their union activity And even though the
discharges may have been based upon other reasons as
well, if the employer was partly motivated by union
activity, the discharges were violative of the Act.
The court at this point cited N.L R B v. Jamestown
Sterling Corp , 211 F.2d 725, 726 wherein it had
previously held-
If employees are discharged partly because of their
participation in a campaign to establish a union and
partly because of some neglect or delinquency, there is
nonetheless a violation of the National Labor Relations
Act.
Quite apart from the foregoing, moreover, a study of
the chronology of these instances discloses that many of
the reasons assigned for the action taken occurred as long
before as one or two years. Thus in his testimony Rogers
repeatedly offered as explanation of the termination of a
particular distributor's contract events such as the
Thanksgiving 1965 failure to deliver papers, or the written
refusal to deliver inserts in August 1965 or one of the
many other incidents of collective action that occurred in
"309 F 2d 352, 355
the past. These, it would seem, might have been the
subject of disciplinary action when they occurred But to
dredge them up months, and sometimes years later to
justify a whole series of dismissals which, absent such
reasons, would clearly have the appearance of
discrimination, presents more than a suspicion that the
reasons given were but fabrications to disguise the true
one. I reject Respondent's reliance upon the alleged
improper conduct of the distributors whose
discriminations are before me On the contrary I conclude
and find that the contract terminations of
Richard Flaherty Daniel Rothchild
Elmer Wili Howard Reichert
Charles Frey William Irving
Arthur Pichette Peter Malvasi
William Griffith Joseph A. Frey, Sr
William Spring Norman Smith
as well as the other discriminations found herein were the
consequence of Respondent's antipathy towards the Union
and its employees' efforts at self-organization. Such action
I find to constitute discrimination in violation of Section
8(a)(3) of the Act and interference, restraint, and coercion
of employees in violation of Section 8(a)(1).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of the
Respondent described in section II, 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.
VI. THE REMEDY
I have found that Respondent has interfered with,
restrained, and coerced its employees in numerous
respects, has discriminated against them, and has refused
to bargain with their duly designated bargaining
representatives. I shall recommend that Respondent cease
and desist from this conduct and from giving effect to any
contract or agreement entered into with its employees
without consultation with their exclusive bargaining
representative, and from in any other manner interfering
with, restraining or coercing its employees in the exercise
of their statutory rights.
Affirmatively I shall recommend that Respondent
reinstate the contracts of those distributors against whom
I have found it has discriminated, and make them whole
for such compensation as they may have lost as the result
of Respondent's discrimination against them. I shall also
recommend that it make whole those employees from
whom they have been found to have discriminatorily
withheld promotion money, and other compensation of
which they were discriminatorily deprived I shall also
recommend that upon request Respondent bargain
collectively with the Union and with the Mailers, in the
appropriate bargaining unit, on all matters affecting the
terms and conditions of employment of the employees
whom they represent
I shall also affirmatively recommend that the employee
contracts found to be discriminatorily terminated be
reinstated and that contracts be offered to employees
whose contract renewal was discriminatorily refused. I
shall further recommend that promotion money, employee
THE HERALD CO. 447
loans, contest participation funds and such other benefits
which in the past have usually and regularly been
available to employees be made available without
reference to any employees' membership or
non-membership in any labor organization; that upon
request Respondent bargain with the Union and the
Mailers with respect to wages and working conditions on
behalf of the employees in their respective bargaining
units, and that Respondent post in appropriate places
notice of its compliance with any order which issues as a
consequence of this Decision.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend" that the Herald Company and
The Post Standard Company, Inc., Respondent herein, its
officers, agents, successors and assigns
1. Cease and desist from:
(a) Unlawfully interrogating its employees concerning
their union membership and their union and other
concerted activities
(b) Threatening employees with discharge, contract
termination or other economic reprisal if they became or
remained members of Local 200 or the Association or
gave aid or support to them or engaged in concerted
activities for the purpose of collective bargaining or other
mutual aid and protection.
(c) Promising employees economic and other benefits if
they refrained from becoming or remaining members of
Local 200 or the Association, or giving aid or assistance
to either of them.
(d) Implying to employees that it was keeping under
surveillance the meeting places, meetings and activities of
Local 200 and the Association and the concerted activities
of its employees.
(e) Promulgating a rule forbidding employees from
soliciting in behalf of Local 200 or the Association on
company property
(f) Soliciting employees to engage in surveillance of
meetings of Local 200 or the Association.
(g) Soliciting the withdrawal of Local 200 or
Association memberships of its employees.
(h) Warning employees that it will not bargain with
their bargaining representatives
(i) Soliciting employees to sign new distributor
agreements as a means of destroying the effectiveness of
Local 200 or the Association.
(l) Discouraging membership in Local 200, the
Association, or any other labor organization by
terminating or refusing to renew the distributor contracts
of its employees, by denying them usual employee loan
privileges, withholding bonuses due them, withholding
"Sunday subsidies," withholding promotion money,
requiring them to pay up franchise debts, or by otherwise
discriminating against them in respect to hire or tenure of
employment.
(k) Discouraging membership in the Mailers Union or
any other labor organization by refusing employment in
the mail room, or otherwise discriminating against mail
room employees in respect to hire or tenure of
employment
(1) Refusing to bargain with Local 200 as the exclusive
bargaining representative of employees in the following
unit found to be appropriate for the purposes of collective
bargaining.
All city, motor route, street sales, country and suburban
distributors employed by the Respondent at Syracuse,
and the central New York area, but excluding all other
employees, office clerical employees, guards,
professional employees, and supervisors as defined by
the Act.
(m) Refusing to bargain with the Mailers Union with
respect to additional situations or other terms or
conditions of employment in the following unit found to
be appropriate for the purposes of collective bargaining.
All employees performing mailing work at
Respondent's Syracuse, New York plant exclusive of all
other employees, office clerical employees, professional
employees, guards and all supervisors as defined by the
Act.
(n) In any other manner interfering with, restraining, or
coercing its employees, or unlawfully discriminating
against them in the exercise of rights guaranteed them by
Section 7 of the Act
2 Take the following affirmative action which it is
found will effectuate the policies of the Act.
(a) Reinstate or renew, as circumstances require, the
distributor's agreement with the following employees, and
make them whole for any loss of compensation suffered as
a result of Respondent's discrimination against them:
Richard Flaherty Daniel Rothchild
Elmer Wili Howard Reichert
Charles Frey William Irving
Arthur Pichette Peter Malvasi
William Griffith Joseph A. Frey, Sr.
William Spring Norman Smith
(b) Make whole any and all employees who have
suffered loss of subsidies, bonuses, promotion moneys or
other emoluments of value as a result of what has been
found to be Respondent's discrimination against them.
(c) Upon request, bargain collectively with Local 200 as
the exclusive representative of all Respondent's
distributors in the unit described above, and if
understandings are reached with respect to subject matters
under consideration, embody such understandings in
signed agreements.
(d) Upon request, bargain collectively with the Mailers'
Union on the subject of additional situations and all other
terms and conditions of employment as the exclusive
representative of all Respondent's mailing room
employees in the unit described above, and if an
understanding is reached, embody such understanding in a
signed agreement.
(e) Post at its Syracuse, New York plant the attached
notice marked "Appendix C."58 Copies of said notice, on
forms provided by the Regional Director for Region 3,
shall, after being duly signed by the Respondent be posted
immediately upon receipt thereof in conspicuous places,
and be maintained for a period of 60 consecutive days.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced or covered by any other material.
"In the event that this Recommended Order is adopted by the Board,
the words "Recommended Order" shall be deleted from its caption and
wherever else it thereafter appears, and for the words "I recommend"
there shall be substituted , "the National Labor Relations Board hereby
orders"
"If the Recommended Order of the Trial Examiner is adopted by the
Board, the words "a Decision and Order" shall be substituted for the
words, "the Recommended Order of a Trial Examiner" in the notice If
the Board 's Order is enforced by a decree of the United States Court of
Appeals, the notice will be further amended by the substitution of the
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director for Region 3, in
writing, within 20 days from the receipt of the Trial
Examiner ' s Decision , what steps it has taken to comply
therewith S'
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
a hearing officer of the National Labor Relations Board.
The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3(b) of the Act,
the Board has delegated its powers in connection with
these cases to the undersigned Regional Director 2
Upon the entire record in this case, the Regional
Director finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. The labor organization involved claims to represent
certain employees of the Employer
3. A question affecting commerce exists concerning the
representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act.
4. The Petitioner seeks a unit of all city, motor route,
store sales, suburban, and country newspaper distributors
employed by the Employer in the central New York area,
or in the alternative any unit found appropriate herein.
The Employer alleges that its newspaper distributors are
independent contractors and therefore do not constitute an
appropriate unit for the purposes of collective bargaining.
The Employer further contends that if the newspaper
distributors are found to be employees, it then takes the
position that some of the newspaper distributors should be
excluded from the unit as supervisors within the meaning
of the Act. There is no history of collective bargaining for
the distributors involved herein.
The Employer is engaged in the publication and
circulation of a daily and Sunday newspaper in Syracuse
and the central New York area. The Employer engages
approximately 106 distributors for the purpose of
distributing its newspaper. These distributors are in the
following categories.
City distributors, approximately 23 in number, for the
most part distribute newspapers to carrier boys at one or
more stations or designated street corners.' The carrier
words, "a Decree of the United States Court of Appeals Enforcing an
Order," for the words, "a Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the said Regional
Director, in writing, within 10 days from the date of this Order, what steps
the respective Respondents have taken to comply herewith "
'During the course of the hearing , the Employer moved that the hearing
officer make credibility determinations and submit them to the Regional
Director . The hearing officer referred the motion to the Regional Director
As representation proceedings under Section 9 of the Act are investigations
which are informal and nonadversary in nature and such determinations
are not necessary to the issuance of a Decision herein, I find no merit to
the Employer 's motion Accordingly , it is hereby denied.
'The Petitioner requested on March 8 , and April 5, 1967, that the
transcript of the hearing herein be corrected in certain respects On May
23, 1967, I issued an Order to Show Cause that the Employer, in writing,
on or before June 1 , 1967, show cause, if any there be, why the transcript
should not be corrected as requested by the Petitioner The Employer did
not reply to this order The transcript is hereby corrected as set forth in
attachments "A" and "B"
boys make house-to-house delivery to the subscribers in
the City of Syracuse and the immediate surrounding area
Motor route distributors, about 33 in number, primarily
deliver to subscribers house-to-house in rural areas,
placing the stick newspaper in a tube from their
automobiles ' Some of the motor route men also have
carrier boys to whom they distribute newspapers.
Street sale distributors, approximately five in number,
deliver newspapers to dealers, such as drug stores, news
stands, grocery stores, hotels, and customers of this nature
within the City of Syracuse.
Suburban distributors, about 15 in number, deliver
newspapers outside of the city and the motor route
distributor's area, up to approximately a 35-mile radius of
Syracuse. They deliver the papers to carrier boys and
dealers and they also operate a motor route type of
operation and deliver papers to carrier boys and dealers
within their territory
Country distributors, about 35 in number, deliver
newspapers outside the 35-mile radius of Syracuse and are
engaged generally in the same type of operation as a
suburban distributor.
Distributors involved herein are under the jurisdiction
of the Employer's circulation department, which is under
the direction and supervision of a circulation manager
who is directly responsible to the publisher. Under the
immediate supervision of the circulation manager are four
district supervisors, each of whom are in charge of the
circulation and distribution of the newspaper in a specified
geographical area Also employed in the circulation
department are clerks and typists, a complaint clerk who
receives telephone calls as to the delivery of paper, and
canvassers (solicitors) who canvass and solicit
door-to-door newspaper subscriptions. The Employer also
utilizes telephone solicitors, who solicit subscriptions over
the phone, and two complaint men who deliver the
newspaper within the city limits to customers who report
they have not received the newspaper. Both the complaint
men and telephone solicitors are under contractual
relation with the Employer Also under the direction of
the circulation manager is a transportation manager and
two assistants who are responsible for handling the
newspapers at the Employer's dock and distributing them
to the distributors.
The Employer prints five editions each day except
Saturday and Sunday. The newspapers are picked up at
the Employer's dock by independent truckers and by some
of the distributors, according to a schedule established and
periodically revised by the Employer.' The independent
truckers and some of these distributors transport bundles
of newspapers to the distributors at designated locations.
Although it is alleged that the distributor pick the location
where the newspapers are to be delivered, the location is
subject to the approval of the Employer and is approved
only if the location is convenient. The distributors and
independent truckers who transport bundles of newspapers
to distributors are paid by the Employer for the service.
Prior to 1947, the distributors were employees of the
Employer and were called district managers. In 1947, the
Employer initiated a franchise system for the distribution
'The distributor owns or rents the station
'Stick is a prewrapped newspaper that is placed in a tube which is a
receptacle furnished by the Employer and placed in front of the home for
rural delivery, so the motor route distributor can place the stick newspaper
into the receptacle from his automobile
'The parties agree, and I find, the independent truck drivers are not
employees of the Employer and are excluded from the unit
THE HERALD CO. 449
of its newspapers, which is still in existence. The district
managers' title was changed to distributor (also called
news dealers in early contracts.) At that time, the district
managers' employment was terminated and each was
asked to sign a franchise agreement.' Each of the
distributors executed a franchise agreement which was for
a definite term, the motor route franchise agreement for a
term of three years and the city distributor's for a term of
five years. The territory of the distributor was established
by the Employer and was substantially the same as that
he serviced as district manager . The work performed by
the distributor was substantially the same as he performed
prior to the execution of the agreement, that is, the
distribution and delivery of newspapers to carrier boys,
dealers, and subscribers, and collecting monies. District
managers were not liable for the nonpayment by a
customer, but as distributors they are responsible for
nonpayment by a customer.
Since 1947, as each contract reached its termination
date, the Employer and the distributor executed a new
form agreement for a definite term. The term and
condition of each succeeding franchise agreement have
varied in certain respects. All of the franchise agreement
forms, with blank spaces for the distributor's name and
termination date, have been drafted by the Employer
without negotiation with the distributor. In 1965, the
distributors' attempt to negotiate the franchise agreement
was refused by the Employer. The distributors also
submitted a proposed franchise agreement to the
Employer in 1965, which was rejected. When the most
recent contract franchise agreement form was drafted by
the Employer in 1965, all of the distributors were
requested by the Employer to execute the new form
agreement, notwithstanding that some of the distributors
had time to run on the existing contract. A majority of
the distributors have signed a new form agreement which
runs for terms of from five to seven years. The
distributors were told that they had to sign the new form
of agreement and if they did not execute the new
agreement, they had the choice of either selling their
franchises allowing them to lapse at the termination date.
The 1965 franchise agreement provides: (a) that the
Employer assigns and transfers to the distributor, the
rights and privileges to sell and distribute newspapers
within a specified territory for a definite time so long as
the distributor complies with the terms of the agreement;
(b) that the Employer agrees to sell its newspapers to the
distributor and the distributor agrees to purchase the
newspapers needed to service all the customers within the
territory, at a wholesale and for a resale rate to carrier
boys and dealers established by the Employer in the
appendix to the agreement, and in the event the retail
price of the newspaper increases, the wholesale price may
be determined and increased by the Employer, but in no
event would the wholesale rate increase result in a
monetary difference to the distributor less than the present
difference between the wholesale and resale price;' (c) that
the distributor shall promote the sale of the newspaper
and make every effort to increase the volume of business
by securing new subscribers; (d) that the Employer, from
time to time, shall adopt such sales promotion programs
as it deems necessary and supply the distributor with
promotional information of such programs, and if the
newspaper adopts any promotional devices involving
collection of insurance premium and/or magazine
distribution, the distributor shall collect or cause to be
'The agreement provided for $1 00 consideration for the distributorship
collected, the payment of premiums or applications when
such are due;' (e) that the distributor maintains the right
to sell or distribute any newspaper or publication within
his territory;' (f) the distributor shall diligently and
efficiently make deliveries of the complete newspaper
intact, including preprints, supplements, and inserts;10 (g)
that the distributor shall take delivery of the newspaper at
places and times designated by the Employer; (h) that the
distributor shall post a bond equal to two weeks' bill;" (i)
that if the distributor, during the life of the agreement,
desires to sell, assign , or transfer his right under the
agreement, he is to give the Employer a thirty (30) day
notice in writing, stating the sale price, purchaser, and
wholesale rate of the paper, and the Employer has a thirty
(30) day option to purchase the distributorship; (j) that the
distributor shall submit quarterly reports of customers for
its audit Bureau of Circulation (this does not appear in
the street sales distributors' franchise agreement form
contract), (k) that the distributor, at his expense, will
obtain and maintain in force such insurance as required by
law to carry on the distributorship; (1) that the means and
methods of collection, delivery and distribution of the
newspaper shall be in the exclusive control of the
distributor and not subject to control and supervision by
the Employer, and the distributor occupies, at all times,
the position of independent contractor, controlling all
ways and means relating to the proper performance and
completion of the contract; (m) that the distributor will
purchase and maintain and bear the expense of any
vehicle required in the performance of operating the
distributorship; and (n) that the Employer will not be
responsible for any expense of the distributorship's
operation, social security, taxes, workmen's compensation,
or the like.
In addition to the difference between the wholesale and
resale rate of the newspaper, the distributor income is
derived from several other sources: (a) promotion money;
(b) check of 50 cents per hundred draw on Wednesdays;
(c) transportation checks; (d) insurance premium money;
(e) $5 checks for daily inserts; and (f) other subsidies paid
by the Employer to the distributors. None of the latter is
included in the franchise agreement.
The most recent contract of the Employer sets forth the
wholesale and resale price of the paper. Prior to that time,
the contract just set forth the wholesale rate. However, the
record shows that by a letter of the Employer dated in
November 1957, other memos of the Employer, and
'Since 1947, the Employer has, on several occasions, unilaterally
increased the wholesale and resale rate of the newspapers
'The contracts prior to the 1965 contract did not provide for the
collection of insurance monies or premiums In recent years the
distributors protested the collection of insurance monies and it became an
issue between the distributors and the Employer
'There are two newspapers in the City of Syracuse , one is a morning
paper and one is the evening and Sunday paper involved herein Both of
these newspapers are owned by the Employer and printed at the same
premises Therefore , the only other newspaper possible for the distributors
to handle would be the other newspaper of the Employer . Some of the
distributors have distributorships for both the morning and evening
newspapers
"Prior to the 1965 contract , this provision did not appear It first
appeared in the 1965 form agreement In the past several years, there has
been an issue between the Employer and the distributor as to the
distribution of the preprints , supplements, and inserts.
"Prior to the 1965 agreement the amount of bond to be posted was by
agreement between the parties At one time the Employer paid interest on
the bond monies deposited with it However, without consultation with the
distributor , the Employer discontinued the paying of interest on bond
monies on deposit.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversations between the Employer and distributors, the
Employer had always established the resale price of the
newspaper Although some of the distributors have for
several years charged carrier boys a resale rate higher
than established, the Employer had knowledge of the
higher rate. In 1947 when the franchise agreements were
established, the Employer, taking into consideration the
distributors' anticipated expense and the size and type of
the territory, established wholesale and resale rates so the
distributor would receive a certain income. In subsequent
agreements, the Employer established ceilings in the
contract, that is, if the distributors' draw (the number of
papers a distributor purchases) rose over a certain
number, the wholesale price of the newspaper increased to
the distributor. If a distributor reported that his income
was decreasing because the area was deteriorating, the
Employer told the distributor to bring in his expense
records, and after looking them over, the Employer either
lowered the distributor's wholesale rate or gave him a
weekly subsidy to raise his income to keep the territory in
operation. Also, when one distributor sold part of his
franchise to another distributor, the Employer reduced the
wholesale rate to the seller in order to make up for loss of
profit for the part of the territory the seller sold. As a
result of the method used by the Employer in 1947 in
establishing the wholesale rate of the newspaper and its
changing them for individual distributors over the years,
the wholesale rates to the distributors are not uniform.
The Employer, for the purpose of increasing circulation
and subscriptions, from time to time conducts various
promotional programs and contests These promotions
and contests provide for so much money or prizes for new
subscriptions obtained in a certain period of time. The
Employer determines the number of promotions, the type
of promotions, the amount of prize money or what the
prizes will be, provides the prize money and prizes, and
determines who is to participate in the promotion
program or contest. Distributors have been expected and
required to participate in the promotional activities. In the
past year or so, the Employer discontinued promotional
money to all except a few of the distributors. The
Employer told some of the distributors who refused to
sign the 1965 contract to sign it and promotion money
would "flow like water."
In November of 1957, when the Employer raised the
retail price of the newspaper, it increased the amount
earned by the carrier boys and the dealers but did not
increase the income to the distributors. At that time it
instituted a plan by which the distributors would receive
50 cents for every 100 papers draw on Wednesday This
was conditioned upon the distributor conducting training
sessions with the carrier boys and conducting a weekly
canvass to solicit new subscriptions. After that date this
did not apply to distributors who purchased new
distributorships or to new distributors. When one of the
distributors was about to purchase a new distributorship
and learned that the 50 cents per 100 he was receiving on
his existing distributorship was going to be discontinued,
he said he would not take over the new distributorship,
and the Employer told him it would continue the 50 cents
per 100 with the new distributorship. Although new
distributors and those purchasing or transferring
distributorships do not receive the 50 cents per 100 draw
on Wednesday check, they are expected to conduct the
training sessions and a weekly canvass.
Some of the distributors own their own trucks and pay
their truck expense.': However, when a distributor
purchases a truck, the Employer gives him an interest-free
loan and a weekly transportation check for the hauling of
the newspapers. A portion of the weekly transportation
check is for payment of the loan and the remainder is to
cover the expense of operating the truck or a subsidy
Since 1933, the Employer has available to subscribers
an accident policy with a premium of 10 cents a week as a
means of promoting newspaper subscriptions. The
premium is billed to and collected by the distributor
through the carrier boy Although the contracts prior to
1965 stated nothing about the insurance policy or
collection of the premium, the distributor has been
obligated to collect the premiums Up to 1959, the
distributor got 1 1/2 cents for each 10 cents premium
collected. In 1959, the Employer, without consultation
with the distributors, reduced this to I cent per 10 cents
premium collected. When a policy is cancelled or a party
moves, the insurance premium is still billed to the
distributor for a period of three weeks until it is removed
from the roll, and the distributor is liable for this
premium. When one of the distributors complained that
he lost money on poor-paying or cancellation of insurance
policies, the Employer told him to "throw in a few extra
orders" and get the money back that way" When a policy
is cancelled out, the distributor has to report in writing to
the Employer the reason for the cancellation
The Employer prepared a letter which stated that
because of the added expense of operating the truck, there
would be an additional five cents a week service charge,
and had one of the motor route distributors deliver it to
each of the subscribers in his territory. The letter
indicated that it was from the distributor The 5 cents was
divided; 2 cents to the distributor and 3 cents to the
Employer. Although the distributor protested he would
lose money through the loss of subscribers, the Employer
insisted he institute the service charge. As customers were
lost, the service charge remained in effect about a week,
and the Employer thereafter gave the distributor a weekly
subsidy check to make up for the loss of income resulting
from the loss of subscribers
When papers are lost or stolen, the Employer replaces
the papers without cost to the distributor, and the street
sales distributor may return extra papers.
The franchise agreement states that the distributor may
sell, transfer, or assign his distributorship. Since 1947 over
100 of the distributors have transferred or have sold their
distributorships. As stated above, when a distributor is
going to sell, transfer, or assign his distributorship, he
must give the Employer a 30-day option to purchase the
distributorship At the time a sale is consummated, it is
generally a three-party arrangement with the seller,
purchaser, and a representative of the Employer present.
The seller signs the release to the Employer, and the
Employer executes a new agreement with the purchaser,
usually for an extended period of time. Therefore, when a
distributor is going to sell his distributorship, the value of
the distributorship depends upon the Employer's
agreement to renew or extend the present franchise. When
Zimmer, a distributor, was going to sell his franchise and
buy another, he made arrangements to sell his
distributorship to Irving for $10,000. However, the
circulation manager told Zimmer that he was to sell it to
Mr. Rothschild, who at the time was a district supervisor
for the Employer, for a sum of $9,000, which Zimmer did.
"The Employer does not require the distributor to have its name on the
truck
"The distributor and the carrier boy each get so much for every new
subscriber
THE HERALD CO 451
As a result , the Employer gave Zimmer a lower wholesale
rate on the distributorship he was purchasing to make up
the $1,000, and also gave Rothschild a lower wholesale
rate on his papers in order to make up for a loss of
severance pay In 1957 , the Employer wanted Meadvin, a
distributor , to become a district supervisor Mr Irving,
who at that time had a distributorship , was called in and
asked if he wanted to buy Meadvin's territory After
learning that Meadvin ' s gross was less than his, Irving
asked why he should buy the territory and was told by the
circulation manager that the territory was down because
of summer vacation and there was more promotion money
in this territory than in the former The circulation
manager told Irving that if there wasn 't any increase in
the income , to come in and see him at a later date, which
Irving did The circulation manager told Irving when he
came in , that he would see what he could do about it
Later , the circulation manager told Irving he could do
nothing for him Thereafter , Irving put in extra orders on
promotion that amounted to about $15 a week In two
recent incidents , the Employer would not renew the
distributors ' franchises , and they lapsed at the termination
date The Employer sold each of these territories for
$15,000 and has offered this amount to the distributors
less the expense of operating the territory until the new
distributors took over The Employer's circulation
manager testified that when the contract terminates the
customers are the property of the Employer and it can sell
the customer list to a new distributor In one instance, the
Employer told a prospective purchaser of a franchise that
the franchise grossed less than it did and thereby killed
the sale The Employer required one distributor to
purchase a portion of another distributor 's territory and
told the prospective purchaser it would not allow the seller
to sell for one cent less than $2,000 Only a few franchises
have been assigned where the Employer was not a party to
the transaction
The distributors must deliver to subscribers and place
honor boxes (self-service news racks ) in buildings if they
want to or not , and regardless of whether or not it is
profitable In one instance , the papers were taken from
the honor box and the money was not placed in the box,
which resulted in a loss to the distributor The Employer
gave the distributor credit for the papers taken The
Employer has transferred subscribers from one territory to
another , and when the distributor complained it would not
be profitable to service the subscribers , the Employer told
the distributor that if he did not service the subscribers,
the Employer would put someone else in there who would
The carrier boys are obtained by the individual
distributors The Employer, from time to time, runs ads
for carrier boys and turns the replies over to the
distributors The number of carrier boys working with a
distributor is determined by the distributor Some of the
country and suburban distributors have entered into
contracts with sub-motor route distributors within their
franchised territory The contract is similar to that which
the distributors and Employer executed
The Employer issues instructions and memos to the
distributors in sandwich bags attached to the key bundles,
letters, telephone calls and personally , as to (1)
complaints-handling and making reports on them, (2)
investigating and handling stop and start orders, (3)
canvassing, (4) insuring preprinted inserts and supplements
in the newspapers , and (5 ) handling and participating in
promotional activities and contests
The complaint (usually a customer not receiving the
paper or the failing to start the delivery of the paper to a
new subscriber ) is a form which lists the customer's name
and address and the nature of the complaint The
distributor is to investigate these complaints as well as
stops, and make a report on them The Employer has a
means whereby canvassers receive a certain amount for
each new order These new orders are turned over to the
distributor who is to check on the order to verify if it is a
valid order or not and make a report to the Employer
The Employer employs canvassers for the purpose of
obtaining new subscribers In connection with this, the
Employer notifies the distributors that he is to have a
certain number of carrier boys available on certain nights
to assist the canvassers The Employer stated that the
distributor is expected to participate in the canvassing
The distributors are given detailed instructions on how to
handle stop and restarts for subscribers on vacation The
Employer has preprinted supplements such as comic and
magazine sections for the insertion in the Sunday paper,
and advertisement sectaons for insertion in the daily and
Sunday papers Some of the preprinted advertising
sections are furnished by the advertisers and the Employer
receives a certain amount for inserting in each of the
papers These are printed by another company and
delivered to the Employer who distributes them to the
distributor in the same manner as the regular paper, but
several days in advance, with instructions for inserting in
the paper on a specific date The distributor distributes the
inserts in advance to the carrier boy for insertion in the
paper on a certain date Because of the bulk of the paper,
some of the carrier boys delivered the Sunday supplement
with the Saturday paper, which was the practice at one
time However, because the advertising in the Sunday
paper costs more, some advertisers complained and the
Employer therefore instructed the distributors that the
Sunday supplement was to be delivered with the Sunday
paper The distributor gave these instructions to the
carrier boys When some of the carrier boys continued to
deliver the Sunday supplement on Saturday , the Employer
told the distributor that unless this stopped, it would
deliver the supplement on Sunday morning and to
discharge the carrier boy Also, the Employer sent its
district supervisor into the area to contact customers for
the purpose of determining if the Sunday supplement was
being delivered on Saturday or Sunday In its letters and
memos to the distributors the Employer lists the names of
subscribers who received the Sunday supplement on
Saturday and states, "Please correct this condition
promptly " The Employer unilaterally established that for
a daily insert only, the city distributor is to receive $5 and
the motor route distributor $3 The franchise agreement
makes no provision for this payment The distributor
attempted to negotiate for one cent per insert and the
Employer refused to negotiate this with the distributor
When the complaint clerk receives a call from within
the city limits that a newspaper has not been delivered to
a subscriber , the complaint clerk advises the complaint
man who is an independent contractor , to deliver the
paper to the subscriber and the distributor is charged 25
cents for each of these deliveries, which is not provided for
in the contract
Since 1947 the distributor has paid the expense of
operating the distributorship The Employer has not
included the distributors in its social security, in
workmens' compensation benefits , nor has it made
deductions from the distributors ' earnings for the tax
withholding purposes The distributor receives no
vacation, holiday pay or other benefits from the
Employer If a distributor is absent for any reason, he
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtains his own substitute The Employer does not hold
group meetings with the distributors. A few of the
distributors have held other jobs. The Employer does not
require the distributors to keep any special type record
nor does it audit their books. However, the distributors
are required periodically to submit a list of carrier boys
and subscribers, and a list of expenses when the
distributor seeks to have his wholesale rate decreased.
The Employer does send canvassers into the
distributor's territory to seek new subscriptions It has
sent the district supervisors into the distributors' territory
to investigate as to whether or not the Sunday supplement
was being delivered on Saturday, and how much the
distributor was charging the carrier boy for the paper.
In determining the status of persons alleged to be
independent contractors, the Board has consistently held
that the Act requires the application of right-of-control
test Where the one for whom the services are performed
retains the right of control of the manner and means by
which the result is to be accomplished, the relationship is
one of employment While on the other hand where the
control is reserved only as to the results sought the
relationship is that of independent contractors.' ° The
resolution of this question depends on the facts of each
case, and no one factor is determinative
Some of the evidence such as the written agreement,
stating the distributors are independent contractors who
control the manner and means of the distribution of the
newspaper,1B the distributor receives no vacation or other
fringe benefits, they pay their own expenses for the
operation of the distributorship, the Employer not making
payroll deductions for tax withholding, or social security,
workmens' compensation payment on behalf of the
distributors, indicates that the distributors are independent
contractors. However, the record clearly shows that in
accomplishing the distribution of its newspaper, an
integral part of its operation, the Employer has
maintained control over the distributors' earnings and the
manner and means of accomplishing the results. The
record shows that the distributors are not controlled by
self-determined policy, personal investments, expenditures,
and market conditions, but are controlled by the
Employer. The Employer unilaterally establishes and
controls the various sources of income of the distributors
and minimises the distributors' losses by granting of
interest free loans, subsidies, changes in wholesale rates,
replacing stolen or damaged bundles, and expense checks
for the truck operations. Although the franchise
agreement indicates that the distributor has a proprietary
interest in the distributorship, the record established that
the Employer controls the sale of the franchise and the
distributor must first obtain its approval before a sale of a
franchise is consummated. The Employer maintains
control over the manner and means of the result to be
accomplished as evidenced by its memos, instructions and
orders for handling complaints, canvassing, investigating
and stop orders etc. It is immaterial if the control is
exercised by suggestion and request rather than by direct
orders and is directed toward cooperative assistance in
fulfillment of the agreement between the distributor and
Employer." As the Employer has maintained control over
the manner and means of the distributors' income and the
"News Syndicate Co. Inc, 164 NLRB No. 69; Cement Transport, Inc,
162 NLRB No. 117, Mister Softee of Indiana , Inc. 162 NLRB No 22;
Sacramento Union , Inc, 160 NLRB No 117, Buffalo Courier Express
Inc, 129 NLRB 932, P G Publishing Company, 114 NLRB 60, and
Carter Publications Inc, 100 NLRB 599.
result to be accomplished , I find they are not independent
contractors but employees of the Employer."
The Employer also contends that some of the
distributors are supervisors because they hire carrier boys,
have contracts with other motor route men and hire part
time drivers and station managers It is clear , and the
Employer does not contend otherwise , that the persons so
engaged by the distributors are not employees of the
Employer Accordingly, as the distributor does not
exercise any supervisory authority over any employees of
the Employer , I find that in their employment relationship
with the Employer which is the only relationship relevant
here, the distributors are not supervisors within the
meaning of the Act.18
In view of the foregoing , and the record as a whole, I
find that the following employees of the Employer
constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act:
All city, motor route , street sales, country and suburban
distributors employed by the Employer at Syracuse, and
the central New York area , but excluding all other
employees , office clerical employees, guards,
professional employees and supervisors as defined in the
Act
[Direction of Election" omitted from publication.]
APPENDIX B
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
Pursuant to a Decision and Direction of Election issued
by the Regional Director on July 19, 1967, an election by
secret ballot was conducted in the above -captioned matter
on January 4, 1968 , under the direction and supervision of
the undersigned , with the following results:
Approximate number of eligible voters . . . 109
Void ballots . . . I
Votes cast for Building Service Employees
International Union Local No. 200 , AFL-CIO .. 63
Votes cast against participating labor organization
31
Valid votes counted . . 94
Challenged ballots . . 14
"It is not the precise terminology of the franchise agreement that
determines the status of independent contractors The status is determined
by the right-of-control test, stated hereinabove
"Buffalo Courier Express Inc, 129 NLRB 932, 936
"News Syndicate Co, Inc, 164 NLRB No 69, and Buffalo Courier
Expres Inc. 129 NLRB 932
"News Syndicate Co, Inc, 164 NLRB No 69, page 8
"An election eligibility list, containing the names and addresses of all the
eligible voters, must be filed with the Regional Director within seven (7)
days of the date of this Decision and Direction of Election The Regional
Director shall make the list available to all parties to the election In order
to be timely filed, such list must be received in the Regional Office, The
120 Building, 120 Delaware Avenue, Buffalo, New York 14202, on or
before July 26, 1967 Under Board directives , no extension of time to file
this list may be granted except in extraordinary circumstances , nor shall
the filing of a request for review operate to stay the filing of such list
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Excelsior Underwear
Inc, 156 NLRB 1236.
THE HERALD CO 453
Valid votes counted plus challenged ballots 108
Challenges are not sufficient in number to affect the
results of the election
A majority of the valid votes counted plus challenged
ballots has been cast for Building Service Employees
International Union Local No 200, AFL-CIO
On January 11, 1968, the Employer filed timely
objections to conduct affecting the results of the election
The objections are as follows
OBJECTIONS
I The individuals who voted in the subject election
are not employees of The Herald Company within the
meaning of the Labor Management Relations Act of
1947 as amended, but rather are independent
contractors
2 There is additional and newly discovered evidence,
not available at the time of the representation hearing
which renders the Regional Director's determination of
employment status unlawful and improper under all the
circumstances Such evidence is as follows
In November of 1967, forty-seven of the
Company's newspaper distributors, whose status is
the subject of this proceeding, unilaterally increased
the retail price of the Company's daily newspaper by
circulating among home delivery subscribers a notice
of such increase, and upon information and belief,
implemented such notice by demanding and receiving
such increased price from certain of said subscribers
The operative written agreement between the
Company and the vast majority of these forty-seven
distributors expressly provides that the Company has
the contractual right to determine the resale price of
its newspapers Immediately following the
distributors' aforesaid unilateral imposition of a price
increase, the Company commenced an action under
the so-called Fair Trade Law of the State of New
York (General Business Law, Article 369a) to enjoin
temporarily and permanently, the price increase in
question
The evidence hereinabove referred to requires
invalidation of the election and a reversal of the
Regional Director's finding that the subject distributors
are employees since
A A contract provision requiring the distributors to
resell at rates established by the Company is significant
in the determination that distributors are not
employees, since employee status alone would subject
the distributors to that type of control
B The distributors, by asserting the right to change
prices, are asserting a right consistent only with an
absence of employee status
C The assertion of the right to change prices is
wholly inconsistent with the testimony offered at the
representation hearing on behalf of the distributors and
relied upon by the Regional Director
D The Court action brought by the Company to
restrain the distributors from effecting an increase in
the price of the newspaper is completely consistent with
the absence of an employer-employee relationship since
the actin is based upon provisions in contracts between
the parties entered into pursuant to a statute designed
to legalize such contracts with persons not under
control as employees
E The Company is aware of no Board precedent in
which distributors
possessing a proprietary interest in their franchise of
substantial value, transferable by inheritance or sale,
and who assert the right to modify or change the
home delivery price of the newspaper
have been held to be employees
The foregoing evidence was not heretofore adduced
in this proceeding because the events in question
occurred after the representation hearing closed
3 Through its unilateral imposition of an increase in
the price of the Company's product (heretofore
described, and more fully explained in a union letter to
subscribers, Exhibit A hereto), the Union offered and
gave to distributor-voters an unlawful inducement in
that the Union determined that an increase would be
imposed, prescribed the amount distributors would
receive and thereafter put the increase into effect by
notifying subscribers, and by collecting and instructing
carrier boys to collect said increased amounts
4 Upon information and belief, the Regional
Director, contrary to Board policy, failed to require the
Union and certain of the Company's distributors to
waive their right to cite, as a basis for objections to the
election, certain alleged unfair labor practices now
pending before the Board
5 In a pre-election letter dated December 15, 1967, a
copy of which is annexed hereto as Exhibit B, the
Union made a prejudical misrepresentation of law and
fact, in part as follows
"Now we have the United States Government on our
side "
6 In this same Exhibit B and in other literature
distributed to voters in the pre-election period, (Exhibits
"C' - "H"), the Union libeled the Company and its
products, misrepresented facts and law, vilified the
Company and its representatives, and offered other
illegal inducements to voters
7 The Union, during the pre-election period,
threatened and coerced distributors James Cromer,
John Commane, and others
8 The company respectfully requests a hearing upon
the fore-going objections in accordance with the
Board's Rules and Regulations
OBJECTIONS NOS 1 2 and 3
An examination of the objections indicates that
Objections Nos 1, 2 and 3 have been fully treated by the
undersigned in his Decision and Direction of Election and
by the National Labor Relations Board in its denial of the
Employer's request for review of that decision, and its
further denial of the Employer's motion for
reconsideration
OBJECTION NO 4
Objection No 4 referring to the so-called "waiver", is
without merit in view of the fact that it has been admitted
that the Employer has no knowledge as to whether or not
a waiver has been filed The form presently required by
the Board, that is, a "Request to Proceed" was, in fact,
filed
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
OBJECTION NO. 5
The statement referred to in Objection No. 5 "Now we
have the United States Government on our side" must be
read in the total context of the pamphlet referred to. This
is one statement in a two-page letter- to the employees
setting forth the problems which the Union met in getting
to an election. It in no way indicated that the "United
States Government," that is, the National Labor
Relations Board, has found the Employer guilty of any
unfair labor practices (cf. Mallory Capacitor Company, A
Division of P. R. Mallory &. Co , Inc., 161 NLRB No.
127). The statement merely reflects the fact that after an
extremely lengthy hearing, a Regional Director Decision
and Direction of Election, a request for review by the
Employer and a motion for reconsideration by the
Employer, an election, has finally been scheduled. The
undersigned therefore finds that this remark did not
interfere with the election.
OBJECTION NO. 6
The undersigned has carefully examined the Union's
literature referred to in Objection No. 6, and finds that
there is nothing in these pamphlets or letters which is in
any way outside the scope. of the policies and principles
set forth in The Gummed Products Company, 112 NLRB
1092, and Hollywood Ceramics Co, Inc., 140 NLRB 221.
The campaign material is clearly of the type which can
readily 'be evaluated by the employees, and further, the
Employer had ample time to respond, to the Union's
statement. The undersigned, therefore, finds that this
material did not interfere with the election
OBJECTION NO 7
This objection has been withdrawn by the Employer.
In its objections, the Employer has requested a hearing.
The undersigned finds that there are no material questions
of fact requiring a hearing, and hereby denies the request.
SUMMARY OF OBJECTIONS
The undersigned therefore finds that Objections Nos. 1
through 6 do not raise substantial and material issues with
respect to the conduct and results of the election and they
are, therefore, overruled. The undersigned hereby issues
his
CERTIFICATION OF REPRESENTATIVES
Pursuant to authority vested in the undersigned by the
National Labor Relations Board, it is Hereby Certified
that Building Service Employees International Union
Local 200, AFL-CIO has been designated and selected by
a majority of the employees of the above-named
Employer, in the unit described below, as their
representative for the purposes of collective bargaining,
and that , pursuant to Section 9(a) of the Act as amended,
the said organization is the exclusive representative of all
the employees in such unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
UNIT
All city, motor route, street sales, country and suburban
distributors employed by the Employer at Syracuse, and
the Central New York area, but excluding all other
employees, office clerical employees, guards,
professional employees and supervisors as defined in the
Act.
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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 unlawfully question our employees
concerning their membership in Building Service
Employees International Union ,, Local No. 200,
AFL-CIO, or Syracuse Mailers Union No. 73, or the
Distributors' Association , or any other labor
organization , concerning their membership or any union
or other concerted activities.
WE WILL NOT threaten our employees with discharge,
contract termination, or any other economic reprisal for
becoming or remaining members of Local 200 or the
Association , or for giving aid or support to either or
both of these organizations , or for engaging in
concerted activities for their mutual aid and protection.
WE WILL NOT promise our employees economic or
other benefits for the purposes set forth above.
WE WILL NOT imply to our employees that we are
keeping under surveillance the meeting places, the
meetings and the activities of Local 200 or the
Distributors Association or the concerted activities of
our employees.
WE disavow any rule purported to be a company rule
which forbids employees soliciting membership in
behalf of Local 200, the Distributors Association or any
other labor organization on company property.
WE WILL NOT solicit employees to engage in the
surveillance of meetings of Local 200 or the
Association.
WE WILL NOT solicit among our employees their
withdrawal from membership in Local 200 or the
Association or any other labor organization.
WE WILL NOT warn our employees that we will not
bargain with their duly established bargaining
representative.
WE WILL NOT solicit our employees to sign individual
distributor agreements as a means of and for the
purpose of destroying the effectiveness of either Local
200 or the Distributors Association.
WE WILL NOT discourage membership in Local 200,
the Association , or any other labor organization by
terminating or refusing to renew the distributor
contracts of any of our employees , or by denying them
usual employee loan privileges , withholding bonuses due
them, withholding Sunday subsidies , withholding
promotion money , requiring them to pay up franchise
debts, or by any other manner discriminating against
them in respect to the hire or the tenure of their
employment.
WE WILL NOT discourage membership in the Mailers
Union or any other labor organizations by refusing
THE HERALD CO 455
employment in the mail room or otherwise
discriminating against mail room employees in respect
to hire or the tenure of their employment
WE WILL , upon request bargain with Local 200 as
the exclusive bargaining representative of all employees
in the following unit which has been found to be
appropriate for the purposes of collective bargaining
All city, motor route , street sales, country and
suburban distributors employed by us at Syracuse,
and the central New York area, but excluding all
other employees , office clerical employees , guards,
professional employees , and supervisors as defined by
the National Labor Relations Act, as amended
WE WILL, upon request , bargain with the Mailers
Union with respect to additional situations or other
terms or conditions of employment in the following unit
found to be appropriate for the purposes of collective
bargaining
All employees performing mailing work at our
Syracuse , New York , plant exclusive of all other
employees , office clerical employees, professional
employees , guards and all supervisors as defined by
the National Labor Relations Act
WE WILL reinstate or renew , as the circumstances
require, the distributor ' s agreement of the following
employees , and will make them whole for any loss of
compensation suffered by any or all of them as the
result of our discrimination against them
Richard Flaherty Daniel Rothchild
Elmer Wili Howard Reichert
Charles Frey William Irving
Arthur Pichette Peter Malvasi
William Griffith Joseph A Frey, Sr
William Spring Norman Smith
WE WILL make whole any and all employees who
have suffered loss of subsidies , bonuses , prome4ion
monies or other emoluments of value as a remit of
what has been found to be our discrimination against
them
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees, or unlawfully
discriminate against them in the exercise of their rights
guaranteed by the National Labor Relations Board
All our employees including distributors and employees
in the mail room are free to become or remain, or to
refrain from becoming members of or withholdotg
membership from any labor organization , including Local
200, the Distributors Association and the Mailers Uii'ion
Dated By
THE HERALD COMPANY
THE POST STANDARD
COMPANY
(Employer)
(Representative ) (Tide)
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
If employees have any question concerning this notice
or compliance with its provisions they may coin riica*e
directly with the Board ' s Regional Office, Fourth Flour,
The 120 Building , 120 Delaware Avenue, Buffalo, New
York 14202, Telephone 842-3112