Before MARIS and GOODRICH, Circuit Judges, and MCILVAINE, District Judge.
This case is before the Court on petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act as amended, 29 U.S.C.A., § 151 et seq., for enforcement of its order issued against Newspaper & Mail Deliverers' Union of New York & Vicinity, Respondent, hereinafter called the Union, on May 16, 1956.
The employer in this case, the Passaic County News Co., Inc., uses two types of employees in its business of wholesale distribution of newspapers and periodicals. It employs men known as regular situation holders for steady full-time jobs. In addition, to meet varying demand, it hires so-called "extras" on a day-to-day basis. The latter present themselves at the company plant in search of work, the arrangement being known as a shape-up.
The employer here is a party to a Wholesaler's Association contract made with the Union on February 1, 1955, and running until January 31, 1957. Under the provisions of this contract any employee receiving 5 days' work a week for a period of 5 consecutive weeks shall become a regular situation holder and be listed on the company seniority and priority list in accordance with his length of service. And in general under this contract, seniority is a governing factor in the hiring of extras, and except for considerations of union membership, it has been the company policy in hiring extras to give jobs to applicants in the shape-up on the basis of seniority.
However, early in 1955, William Walsh, the Union's business agent, called at the company plant and told John Fylstra, the president and general manager of the company, that a union card must give its possessor in a shape-up the first right to go to work. This admonition by Walsh to Fylstra had been repeated on several occasions and in March of 1955, Walsh instructed Night Foreman Alexander Herald that Union men come first in hiring extra help. Walsh also told the Day Foreman John Smith in June that whenever possible he wanted union men to be used.
The company failed to hire one Philip Goldberg, a member of the Union, as an extra before it hired nonunion men. On May 30, 1955, the Union protested. Walsh conferred with Fylstra, Herald, and Assistant Night Foreman Louis Vitale, insisting that regardless of anything else, Union men, like Goldberg, were to be hired first and "he didn't want to know nothing else." Walsh continued in this attitude at an Adjustment Board meeting set up to consider the Goldberg grievance. He declared that "Union men have to go to work before nonunion men." Joseph Simons, the Union's vice-president, was also present, and mentioned that to prevent an extra employee working a 5-day week for 5 successive weeks and thus becoming a regular situation holder under the contract, other wholesalers did not let nonunion extras work more than 4 consecutive weeks, and wished that this company would follow the same practice.
The Company complied with the Union's requests, and continued to hire union men from the shape-up in preference to nonunion men regardless of their respective seniority. New applicants were asked if they had a Union card, and upon the production of same they were assigned without further inquiry to extra work in preference to nonunion men who had worked at the plant previously.
James Courtis, who is not a member of the Union, appeared in the shape-up during 1945, and appeared regularly at shape-ups since 1953, presenting himself for both night and day work.Since 1953, he has qualified as a regular situation holder a number of times, and in 1955, had worked 12 consecutive 5-day weeks. However, the company listed him as an extra worker who must joint the shape-up for employment.
Between June 16, 1955, to the date of the hearing in January, 1956, Courtis presented himself regularly at the company's shape-up for employment. However, the company hired Union members for extra work on 35 or more occasions, while denying employment to Courtis who had greater seniority. Courtis protested this action to his foreman. He was advised by Smith, Vitale, and Herald that the men hired were union men. Courtis also made inquiry of the Union's shop steward who advised him that since the men hired held Union cards they had preference. The President of the company admitted that though Courtis had greater seniority he wasn't hired because Union men had priority.
From these facts the Board concluded that the Union had violated Section 8(b)(2) and (1)(A) of the National Labor Relations Act, by maintaining and enforcing a discriminatory arrangement with the employer for granting preference in hiring to members of the Union and thereby causing the company to deny Courtis regular, steady employment and status as a regular situation holder because of his nonmembership in the Union.
Accordingly, the Board required the Union to cease and desist from restraining or coercing employees or applicants for employment in any like or related manner at this company or any other employer.*fn1
The Board also directed the Union to notify the company in writing that it had no objection to the company's granting James Courtis or any other employee regular, steady employment and status as situation holders even though they are not members of the Union. The company was ordered to cease and desist from maintaining or enforcing any discriminatory working arrangement with the Union or granting preference to the Union or discriminating against employees because of their nonmembership in the Union.Both the Union and the company were ordered to make James Courtis whole for any loss of pay he may have suffered by reason of the discrimination against him.
The National Labor Relations Board now seeks enforcement of its order against the Union by an appropriate court decree, but is not asking for a court decree to enforce its order against the company. It appears that both the company and the Union are complying with the order of the Board; and the Union, therefore, urges that in ...