Newspaper and Mail Deliverers' Union of New York and Vicinity, 589 (1962)

'NEWSPAPER AND MAIL DELIVERERS' UNION 589 the Petitioner for such unit which the Board in that event finds to be .appropriate for purposes of collective bargaining. In the event that a majority of the employees, in group 1 select the Petitioner and a majority of the employees in group 2 select the Intervenor, the employees in each will be taken to have indicated their preference for a separate bargaining unit, and the Regional Director is instructed to issue a certification of representatives to the Petitioner or Intervenor, as the case may be, for the separate unit which the Board finds in such ,circumstances to be appropriate for purposes of collective bargaining.

[Text of Direction of Elections omitted from publication in this volume.] NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY and ARTHUR FINKELSTEIN, ALFRED FRANKEL, CARL GALDSON, THEODORE GERSHOWr1Z, MARTIN IGOE , EDWARD JOHNTRY, NICHOLAS LAnLETTI, PATRICK LEONARD, WILLIAM MCCLOSKEY, FRANCIS MEADE, JOHN MINOGUE AND EUGENE ROSE

NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY and BENNIE Izzi, ON BEHALF OF HIMSELF AND OTHERS AND SIDNEY ROSENTHAL, JOSEPH RILEY, JOHN NICOLINI AND CARL CITRANO,

EDWARD JOSEPH GUERIN AND MEYER SACKS. Cases NOS. 2-CB-135, .2-CB-145, 2.-CB-370, and 2-CB-381. November 26, 1952

Decision and Order On November 30,1951, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel and certain of the charging parties filed exceptions and supporting briefs. On February 8, 1952, the Board granted permission to New York Mirror Division-the Hearst Corporation to intervene and to file exceptions.

The request of the charging parties for oral argument is hereby denied, as the record and the briefs and exceptions, in our opinion, adequately present the issues and the positions of the parties.

The Board has reviewed the rulings made by the Trial Examiner at the hearings and finds that no prejudicial error was committed.

101 NLRB No. 128.

The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs , and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions , modifications, and additions set forth below.

  1. As set forth in the Intermediate Report, on January 25 , 1951, the Respondent Union and The Publishers Association entered into a hiring agreement which provided for creation of a number of new situations to be filled with a quota of 60 union men to 40 nonunion men.

    Due to the Respondent Union 's repudiation of this agreement, the General Counsel petitioned the United States District Court for the Southern District of New York for a restraining order. Although the General Counsel stated at the hearing that he made no contention with respect to the legality or illegality of the quota hiring agreement, the Trial Examiner concluded that the agreement was 'clearly illegal.' The Trial Examiner further found that the General Counsel filed the petition for the restraining order so that the Respondent Union would be compelled to abide by the 'illegal' agreement. The New York Mirror has excepted to the finding of the Trial Examiner that the agreement was illegal, contending that this issue was not raised by the pleadings and was thus not before the Trial Examiner, and the General Counsel has excepted to the finding that the petition for the restraining order was based upon the illegal agreement.

    Under all the circumstances of this case, we find merit in these exceptions. We shall, therefore, without passing upon the merits of the issues involved, reverse the Trial Examiner 's findings with respect to the agreement of January 25, 1951, and with respect to the restraining order of the district court.' 2. The Trial Examiner found, and we agree, that the Respondent Union has attempted to cause and has caused the Times and the Mirror to discriminate in regard to the hire and tenure of employment of the individuals named in the section of the Intermediate Report entitled 'The Remedy.' The General Counsel has excepted to the Trial Examiner's failure to make specific and detailed findings that the Respondent Union threatened strike action and did strike the New York Times on January 6, 1950. The General Counsel has also excepted to the failure to find similar violations arising out of incidents of threats and work stoppages occurring at the Times on May 17-18, 1949. The findings sought by the General Counsel are supported by the record and also by the Board's findings in an earlier related case.' The General Counsel stated on the record that the unfair labor practices occurring at the Mirror came about as a result of a strike by Cf. J I. Case Company, 71 NLRB 1145.

    2 Newspaper and Mail Deliverers' Union (Herald Tribune ), 93 NLRB 419, 429-30, 434.

    The pertinent portions of the record in this earlier case have been incorporated herein.

    NEWSPAPER AND MAIL DELIVERER'S UNION 591 the Respondent Union on January 6, 1950, after which certain nonunion men were discriminatorily deprived of regular employment and were required to submit to the discriminatory shape.

    We therefore find, in accord with the Trial Examiner, that the Respondent Union engaged in unfair labor practices in violation of Section 8 (b) (2) and (1) (A) of the Act. We shall, however, contrary to the findings of the Trial Examiner, date our unfair labor practice findings from May 17, 1949, with respect to the New York 'Times, and from January 6, 1950, with respect to the New York Mirror, the dates of the first definitive coercive actions by the Respondent Union at these newspapers.3

    The Remedy Having found that the Respondent Union has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act.

    We have found that the Respondent Union discriminated against a number of employees named in the section of the Intermediate Report entitled 'The Remedy.' Accordingly, we shall order the Respondent Union to make them whole, in the manner set forth in the Intermediate Report, for any loss of pay they may have suffered since May 17, 1949, with respect to employees of the New York Times, and since January 6, 1950, with respect to employees of the New York Mirror. Because we have reversed the Trial Examiner's findings with respect to the restraining order of the district court, we shall not adopt his recommendation that back pay should not accrue from the date of the district court order to the date of its vacation. In accord with our usual practice in similar situations, the period from November 30, 1951, the date of the Intermediate Report, to the date of our order herein, will be excluded in computing the amount of back pay to which the discriminatees may be entitled.

    The Trial Examiner recommended that the Respondent Union be ordered to cease and desist from restraining and coercing the employees of the New York Times and the New York Mirror and from causing or attempting to cause the New York Times and the New York Mirror to discriminate against their employees. The General Counsel contends that this recommended order is not as broad as the violations would warrant and that the Board should issue an order prohibiting coercive activities by the Respondent Union in an area coextensive with its jurisdiction. We agree with this contention.4

    See Newspaper and Mail Deliverers' Union (Herald Tribune), 93 NLRB 419.

    See United Mine Workers of America,, District 2 (Mercury Mining and Construction ,Corporation), 96 NLRB 1389.

    The practices we have held to be unlawful have been directed not onlyagainst the Employers immediately involved herein but also against other newspaper publishers within the area of the Respondent Union'sjurisdiction .5 We therefore find a continuing danger of the future commission by the Respondent Union of the acts now and previously held unlawful. In order, therefore, that the policies of the Act maybe effectuated, we shall broaden the order as requested by the General Counsel .6

    We expressly reserve the right to modify the remedial provisions of our Order herein, if made necessary by a change of conditions in the future, or to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now apparent.

    Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Newspaper and Mail Deliverers' Union of New York and Vicinity, its officers, representatives, agents, successors, and assigns, shall :

  2. Cease and desist from :

    (

    1. Restraining or coercing employees of the New York Times Company, Inc., the Hearst Corporation, New York Mirror Department, their successors or assigns, and any other companies engaged in the newspaper publishing business in New York City or vicinity, in the exercise of rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act.

    (b) Attempting to cause and causing the New York Times Company, Inc., the Hearst Corporation, New York Mirror Department, their officers, agents, foremen, successors, or assigns, and any other companies engaged in the newspaper...

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