Central Valley Typographical Union Local 46

National Labor Relations Board - Board Decisions

Jun 26, 1974

212 N.L.R.B. 57 (N.L.R.B. 1974)

CENTRAL VALLEY TYPOGRAPHICAL UNION LOCAL 46 57
Central Valley Typographical Union Local No. 46,
AFL-CIO; and International Typographical Union,
AFL-CIO (Sacramento Union Corporation) and
Frank Pazoureck . Case 20-CB-3018
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT
June 26, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On April 2, 1974, Administrative Law Judge Jer-
rold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached'Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case, held on February 28, 1974, is based
upon a charge and an amended charge filed by Frank Pa-
zoureck, herein called Pazoureck, against the above-named
labor organizations herein collectively called Respondent
Unions, and a complaint issued on November 28, 1973, on
behalf of the General Counsel of the National Labor Rela-
tions Board, by the Regional Director of the Board, Region
20, alleging that the Respondent Unions have engaged in
unfair labor practices within the meaning of Section 8(b)(2)
and (1)(A) of the National Labor Relations Act, herein
called the Act. Respondent Unions filed an answer denying
the commission of the alleged unfair labor practices.
i The charge was filed against Central Valley Typographical Union Local
No. 46, AFL-CIO, herein called Local Union or Respondent Local 46, on
October 10, 1973, and an amended charge naming International Typographi-
cal Union, AFL-CIO, herein called International Union or Respondent
International Union, was filed on November 23, 1973.
1. THE BUSINESS OF THE EMPLOYER INVOLVED
The Sacramento Union Corporation, doing business as
the Sacramento Union, is a California corporation whose
business is located in Sacramento, California, where it pub-
lishes newspapers. It subscribes to various interstate news
services and during the year 1973 received gross revenues in
excess of $200,000 'and purchased and received goods and
services valued in excess of $50,000 from sources located
outside California.
The Respondents admit that the Sacramento Union Cor-
poration is an employer engaged in commerce and in opera-
tions affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
It is admitted that Central Valley Typographical Union
Local No. 46, AFL-CIO, the Respondent Local Union, and
International Typographical Union, AFL-CIO, , the Re-
spondent International Union, are labor organizations
within; the meaning of Section 2(5) of the Act.
III THE QUESTION PRESENTED
The ultimate question, as framed by the pleadings, is
whether the Respondent Unions violated Section 8(b)(2)
and (1)(A) of the Act by causing the Sacramento Union
Corporation, herein called the Newspaper, to discriminate
against Frank Pazoureck by "reducing his priority standing
... and in violation of [their] fiduciary Outy." Respondent
Local 46 is alleged to have committed the violation on May
1, 1973, when its president directed Pazoureck's name to be
eliminated from the priority (or seniority) list in the
Newspaper's composing room, and the Respondent Inter-
national Union is alleged similarly to have violated the Act
by its subsequent decision of October 23, 1973, which sus-
tained the local president's action in appeal proceedings
instituted by Pazoureck.
IV THE ALLEGED UNFAIR LABOR PRACTICES
The composing room employees of the Newspaper are
represented for collective-bargaining purposes by the Re-
spondent Local 46. At the time material herein, the terms
and conditions of employment of composing room employ-
ees were defined by the collective-bargaining agreement
between the Local Union and the Newspaper. The agree-
ment provides, inter alia, that the Local Union furnish the
Newspaper with "the number of competent employees" it
needs for the operation of the composing room. It further
provides that the control over hiring, direction of work, and
discharge is vested in the general foremen, who are required
to be members of the Local Union. The foremen when
hiring must recognize the priority of "regular situation hold-
212 NLRB No. 20
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers," who have priority status; employment is regularly
available to "regular situation holders" 5 days a week. In
practice the selection of specific employees for work in the
composing room lies with the Local Union through its chap-
el chairman and his assistants, who compile and maintain
a priority list of regular situation holders and substitutes.
Since at least 1967, the Charging Party, Frank Pazoureck,
has been a member of the Local Union and has worked for
the Newspaper as a markup man in the composing room
with priority status as a "regular situation holder." In Janu-
ary 1973,2 Pazoureck commenced operating his own busi-
ness, a sole proprietorship, under the name of Pho-Tech
Company. Briefly stated, Pho-Tech through Pazoureck
served as a consultant to firms in the printing industry,
converting hot type printing establishments to the cold type
process. It advertised itself as "Pho-Tech Company printing
systems-inter-face and design specialist hot to cold type
plant conversions-from concept to completion." At the
same time he owned and operated Pho-Tech, Pazoureck
continued to hold his priority status at the Newspaper. The
general laws of the International Union, which are incorpo-
rated by reference into the collective-bargaining agreement
between the Local Union and the Newspaper, in pertinent
part, provide in substance that no journeyman shall hold
priority status with an employer if said journeyman is him-
self an employer performing work within the jurisdiction of
the International Union.
On May 1, it is undisputed, the Local Union caused
Pazoureck's name to be placed at the bottom of the priority
list in the Newspaper's composing rtoom, thereby causing
him to lose employment and employment opportunities.
Also, it is undisputed, the reason for the Local Union's
conduct was that, by operating his own business (Pho-Tech)
while simultaneously holding priority status with another
employer (the Newspaper), Pazoureck was violating the In-
ternational Union's general laws, described previously,
which laws are a part of the collective-bargaining agreement
between the Newspaper and the Local Union. In other
words, Pazoureck's priority status was eliminated because
of a union rule which severely reduces the priority of mem-
bers who own and operate a business of their own within the
International Union's jurisdiction.' There can be no doubt,
in these circumstances, that previous Board decisions pre-
clude a determination that the conduct of the Respondent
Unions in enforcing the rule against Pazoureck was, by
itself , a violation of the Act. New York Typographical Union
No. 6 (Cafero), supra, enfd. 336 F.2d 115 (C.A. 2, 1964); see
also Houston Typographical Union No. 87, ITU (Houston
Chronicle Publishing, et al.), 145 NLRB 1657, and Interna-
tional Typographical Union, Columbus Typographical Union
No. 5 (Dispatch Printing Co.), 177 NLRB 855. And the evi-
dence does not demonstrate discriminatory motivation by
the Local Union or the International Union in causing Pa-
2 Unless otherwise specified , all dates hereafter refer to 1973
3 The General Counsel does not contend that the nature of Pho -Tech's
operation was outside the International Union 's jurisdiction In any event,
the whole record establishes that Pho-Tech was operating within the interna-
tional Union 's jurisdiction or that at the very least the Respondent Unions'
view of Pazoureck 's business operation was a reasonable one New York
Typographical Union No 6 (Cafero), 144 NLRB 1555 , 1558, and iron Workers.
Local Union 229 (Bethlehem Steel), 183 NLRB 271
zoureck to lose his priority. As a matter of fact, in his
post-hearing brief the General Counsel concedes the lawful
authority of the Respondent Unions to remove Pazoureck's
priority and does not contend that in so acting the Respond-
ent Unions were discriminatorily motivated. The sole argu-
ment advanced by the General Counsel in support of the
allegations of the complaint is that, in causing Pazoureck's
loss of priority, the Respondent Unions breached "[their]
fiduciary duty to deal fairly with Pazoureck in the enforce-
ment of [their] decision that Pazoureck either divest himself
of Pho-Tech or relinquish his priority," citing N.L.R.B. v.
Hotel, Motel & Club Employees Union, Local 568, A FL-CIO
[Philadelphia Sheraton Corp.], 320 F.2d 254, 258 (C.A. 3,
1963), enforcing on this point 136 NLRB 888. 1 shall set out
and evaluate the evidence pertinent to the issue of whether,
as contended by the General Counsel, the Respondent
Unions breached their so-called fiduciary duty in causing
Pazoureck to lose his priority.
Pazoureck's removal from the priority board was accom-
plished within the framework of the Respondent Unions'
rules and procedures, some of which are expressly adopted
by the collective-bargaining agreement between the News-
paper and the Local Union. Accordingly, an explanation of
those rules and practices is necessary to an understanding
of the events in this case.
Under the constitution and bylaws of the Respondent
International, membership falls into various classifications,
such as that of a regular member, a "not-at-the-trade" mem-
ber, and "proprietor" member. A proprietor member is
someone engaged in his own business in the printing indus-
try, and that classification permits him, insofar as union
practices are concerned, to work at the trade in that business
without losing the benefits of union membership. Since the
amount of dues paid by a member depends upon the classi-
fication, it is the responsibility in the first instance of the
secretary-treasurer of the Local Union to classify each
member. If a member feels he has been wrongly classified,
he is entitled to utilize the appellate procedure within both
the Local and International Union
The general laws of the International Union, which are
expressly adopted as part of the collective-bargaining agree-
ment between the Newspaper and Respondent Local 46,
contain provisions dealing with a proprietor member who
actively works in his own business. Article V, section 3 of
the general laws, which deals with the subject of priority, in
pertinent part forbids a person who owns and operates his
own business in the printing industry from holding a full-
time situation (priority) with another employer.
Pazoureck's first customer as Pho-Tech was the Newspa-
per where, as described above, he also held a regular situa-
tion. The Newspaper entered into an oral contract with
Pho-Tech for the establishment of an operational procedure
which composing room employees could follow in connec-
tion with the design of new type faces, as part of a broader
updating of electronic equipment, including the acquisition
of an optical character recognition machine. The contract
work was begun in the middle of January 1973 and was
scheduled to be completed by June 5, 1973, when the optical
character recognition equipment was to be put into produc-
tion. During the period when Pazoureck performed work as
Pho-Tech for the Newspaper, he continued to hold a regular
CENTRAL VALLEY TYPOGRAPHICAL UNION LOCAL 46
situation as a mark-up man. The majority of his work as
Pho-Tech was done at his home or elsewhere, but occasion-
ally he worked on the Newspaper's premises at times when
he was not performing his journeyman's job as a markup
man.
On January 24, Pazoureck was personally informed by
the Local Union's secretary-treasurer that he was of the
opinion that Pazoureck occupied the status of proprietor
member. Pazoureck told the secretary-treasurer to put his
decision in writing so he could appeal it to the Local
Union's membership. Thereafter, on February 10, in a letter
to Pazoureck, the secretary-treasurer informed him that he
had decided to classify him as a proprietor member. The
letter cited, among other things, the applicable section of the
International Union's general laws and Pazoureck's owner-
ship of Pho-Tech, and in detail explained the basis for the
decision. The letter then concluded:
... it is my decision that if your current circumstances
prevail for the rest of the dues month of February,
1973, that it will be incumbent on me as secretary of
No. 46 to place you in a proprietor dues classification
for said month, which in turn automatically indicates
that you shall no longer hold priority until your circum-
stances return to that of a journeyman at the trade, and
further means it will be necessary for you to divest
yourself of your business by the end of the dues month
of February, 1973, or, being placed in a proprietor
classification, you will have sacrificed your priority.
Pazoureck, as was his right under the International Union's
bylaws, appealed to the Local Union's executive committee
which sustained the secretary-treasurer's ruling, and then
appealed to the membership of the Local Union which sus-
tained Pazoureck's position. Whereupon, the Local Union's
secretary-treasurer appealed the ruling of the Local Union
to ,the executive committee of the International Union
which issued a written decision on April 26 sustaining the
appeal. Briefly stated, the International Union's executive
committee held:
The local secretary has properly classified [Pazoureck]
as a proprietor for dues paying purposes.
The appeal is sustained.
This decision takes effect immediately and will remain
in effect pending reversal on appeal by convention of
the International Typographical Union .4
The president of the Local Union , David Pike , received
the ruling of the International Union's executive committee
a day before the regular Sunday evening membership meet-
ing of the Local Union on April 29. He read the ruling at
the meeting, which Pazoureck did not attend , and later that
evening telephoned Pazoureck to inform him of the deci-
sion.'
4 Pazoureck thereafter filed such an appeal which was denied.
59
Pike began his phone conversation with Pazoureck by
reading the ruling of the International Union's executive
committee and advised Pazoureck that, as stated in the
ruling, effective immediately he was a proprietor member
who had no right to hold a regular situation with the News-
paper. If, however, Pazoureck furnished a written statement
indicating that he would divest himself of Pho-Tech, Pike
stated that he would not remove his priority at the Newspa-
per. Pike cautioned that he did not know whether he could
do this and indicated that a member might appeal his action
of allowing Pazoureck to retain his priority. In response,
Pazoureck stated he would divest himself of Pho-Tech and
then engaged Pike in a conversation about the meaning of
divestment. Pike assured him that divestment was not a
complex matter and specifically advised Pazoureck he did
not have to sell Pho-Tech's truck or office furniture but that
all he had to do, to satisfy Pike, was (1) immediately furnish
Pike with a written statement that he was in the process of
divesting himself of Pho-Tech, and (2) immediately start to
get rid of Pho-Tech's customers. Pazoureck, however, asked
that Pike supply him with a written statement explaining the
meaning of divestment. Pike absolutely refused to furnish
such a statement.6 The conversation ended with Pike stating
that, since he would be out of town all day Monday, April
30, for Pazoureck on Tuesday, May 1, to come to the Local
Union and give Pike a written statement evidencing his
intent to divest himself of Pho-Tech. Pazoureck replied it
would be more convenient to bring the statement into the
Local Union's office Monday, at which time he would also
pick up a copy of the decision of the International Union's
executive committee.?
Immediately following the above-described conversation,
Pazoureck phoned the Newspaper's director of production,
William Hofer, and told him he had agreed to divest himself
of Pho-Tech in order to keep his regular situation in the
composing room, which meant it was necessary that the
Newspaper's arrangement with Pho-Tech be terminated.
Hofer was sympathetic toward Pazoureck's situation but
pointed out that Pazoureck was putting the Newspaper in
"a heck of a bind" because his services were essential to
finish a portion of the project which Pho-Tech had almost
completed. Pazoureck then agreed he would report for work
the next day, Monday, April 30, his regular day off, as a
5 Inasmuch as he was neither appellant nor respondent, Pazoureck did not
receive a copy of the decision.
6 Pike testified he refused to give Pazoureck a written statement defining
divestment because "I wanted to help him retain priority. Now, what he was
doing was turning around and wanting me to do these things. And the onus
was not on me. All I needed was a statement to protect myself of the
membership so it would not be in violation-or in worse violation with the
Executive Council."
7 The description of Pike's conversation with Pazoureck on April 29 is
based upon the credible testimony of Pike who, of the two , impressed me as
being the more trustworthy and reliable . Pazoureck's testimony agrees with
the above account except in the following respects- (1) Pazoureck testified
that he arranged to meet Pike the following day (the same day Pike testified
he would be out of town) at the Local Union for the purpose of discussing
further the implications of a divestiture of business operations at Pho-Tech.
(2) Pazoureck denied that Pike insisted upon or that he (Pazoureck) had
committed himself to submitting a written statement as evidence of his intent
to divest himself of Pho-Tech. Rather, Pazoureck testified what occurred'was
that he conditioned furnishing such a statement to Pike upon Pike's furnish-
ing him a statement defining divestment. In Pazoureck's words: "I will come
down and give you a statement if you give me a statement."
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
journeyman under the Local Union's contract but, rather
than perform his normal duties in the composing room,
would continue working on the Pho-Tech project. Pazour-
eck in fact did this, which was his sixth working day of the
week and, as such, under the Local Union's contract with
the Newspaper was an overtime day.
At around noontime that Monday, Pazoureck left the
Newspaper and went to the office of the Local Union and
found no one there other than Agnes Lynch, the office
manager.8 Pazoureck and Lynch agree that when Pazoureck
learned that neither Secretary-Treasurer Paquier or Presi-
dent Pike was at the office that he left word with Lynch to
advise them that he had divested himself of his company
and that he asked for and received a copy of the Interna-
tional Union's executive committee decision classifying him
as a proprietor member. Pazoureck also asked Lynch if Pike
had left a letter for him explaining the meaning of divest-
ment and told Lynch to advise Paquier and Pike that if they
had any questions concerning his divestment that they call
him either at work or at his home 9
The next day, May 1, upon Pike's return to the Local's
office, Lynch informed him that the previous day Pazoureck
had visited the office and taken a copy of the decision of the
International's executive committee and had stated that he
had divested himself of his company. Pike asked whether
Pazoureck had left a written statement or a letter and Lynch
stated that he had not.
In the meantime, as indicated previously, Pazoureck on
Monday, April 30, performed precisely the same work that
Pho-Tech was retained to accomplish by the device of work-
ing under the Local Union's collective-bargaining contract
on an overtime basis. On that morning, Assistant Chapel
Chairman10 Harold Cassen observed Pazoureck at the
Newspaper. Cassen knew that Monday was Pazoureck's
day off and observed that he was not performing his normal
work in the composing room but instead was "running
tests." Cassen, as he credibly testified, also observed that
there was no indication that Pazoureck had been authorized
by the chapel chairman or an assistant to work overtime on
that day under the Local Union's collective-bargaining
agreement." Cassen asked the assistant foreman in charge
8 The title is deceptive , for Ms Lynch, as the record establishes , is not a
managerial or supervisory employee She is the Local Union's sole office
clerical who maintains the Local's books and records and answers the phone
9 Lynch was unable to unequivocally deny that Pazoureck made these last
two statements She testified she simply had no memory one way or the other
and in effect conceded Pazoureck could have made these statements Howev-
er, whether Pazoureck asked Lynch if Pike had left a letter explaining divest-
ment and told her to advise Pike that he should contact him about any
questions concerning his announced intent to divest , in my opinion, is not
relevant to the ultimate disposition of this case The fact of the matter is that
Pike , as previously found, had the day before unambiguously notified Pa-
zoureck he would not furnish such a letter and , as described later , Lynch,
according to the credible testimony of both Lynch and Pike, did not advise
Pike that Pazoureck had left word that Pike should phone him if he had any
questions
10 The chapel chairman and his assistants are representatives of the Local
Union who occupy a position analogous to union stewards and have the duty,
among others, to administer the Local Union 's collective-bargaining agree-
ment
11
The whole record, particularly the credible testimony of Cassen, estab-
lishes that it was the practice for the Newspaper to notify the Local Union
that a certain number of employees were needed for overtime work and that
the Local Union, which maintained an overtime roster, selected specific
of the day shift, Jim Richardson, in what capacity Pazour-
eck was working. Richardson replied he had no idea. Cassen
then unsuccessfully attempted to phone Chapel Chairman
Joseph O'Brien at his home and then phoned the Local
Union and spoke to Secretary-Treasurer Paquier and, as
described above, explained Pazoureck's situation. Later
that day, at the end of the work shift, Cassen, as he credibly
testified, observed that Pazoureck had not posted his over-
time,12 which further implied to Cassen that Pazoureck was
working for the Newspaper as Pho-Tech rather than as a
bargaining unit employee under the terms of the collective-
bargaining agreement. That evening Cassen informed
Chapel Chairman O'Brien that Pazoureck had not posted
his overtime. The next day, Tuesday, May 1, Pazoureck
although at work, as O'Brien credibly testified, did not per-
form his normal markup work and did not work in the
composing room.13
In sum , as described above, Assistant Chapel Chairman
Cassen and Chapel Chairman O'Brien had good reason to
believe that Pazoureck on April 30 and May I was perform-
ing as an employer (Pho-Tech) for the Newspaper rather
than as a rank-and-file employee under the terms of the
collective-bargaining agreement. In this regard, the fact that
Pazoureck on April 30 specifically told Assistant Chapel
Chairman James Lange that he had divested himself of
Pho-Tech and was doing Pho-Tech work under the Local
Union's contract at the overtime rate is not, in my opinion,
relevant to the issues of this case. 14 What is relevant is Pike's
conduct when he made the decision to remove Pazoureck's
priority status. I shall set out the evidence surrounding
Pike's immediate decision to remove Pazoureck's priority.
Pike, as described earlier, had returned to his office on
May 1 and learned that Pazoureck, although he had visited
the office the previous day, had not complied with Pike's
request to leave a written statement evidencing his intent to
divest himself of Pho-Tech. Pike spent all of May I at the
Local Union's office without receiving any word from Pa-
zoureck. To the contrary, Pike received certain information
which indicated, contrary to Pazoureck's oral representa-
tions, that Pazoureck was still operating as Pho-Tech. Secre-
tary-Treasurer Paquier during the evening of Monday,
April 30, had advised Pike that Assistant Chapel Chairman
Cassen had complained that Pazoureck was working even
employees to work overtime based upon equitable considerations
1 It is mandatory for employees who work overtime under the terms of
the Local Union's collective-bargaining agreement to post their overtime
hours on a schedule posted on the Local Union's bulletin board in the
composing room
13 Pazoureck testified that he did markup work on May I On the other
hand, Production Director Hofer testified that it was his understanding that
at least until noontime on May 1, Pazoureck worked on the Pho-Tech project
rather than markup work This was a reasonable understanding inasmuch as
Pazoureck admitted that the only other person working with him on the
Pho-Tech project, Joe Banks, was not qualified to finish the Pho-Tech work
completed on May I
14 In any event, I find that Lange was not an agent of the Local Union for,
although I have found that Pazoureck on April 30 conveyed the above
message to Lange, I am convinced that at the time Lange was not serving
in his capacity as an assistant chapel chairman On this point, of the two
witnesses , Cassen impressed me as the more reliable Also, Lange's testimony
on this matter is vague and evasive When asked if he was the assistant chapel
chairman on April 30, he answered that "some doubt has been raised even
in my mind now as to when my shift was Anyway, i was in the composing
room . whether I was working or why, i don't remember "
CENTRAL VALLEY TYPOGRAPHICAL UNION LOCAL 46
though he was not scheduled for work, that Cassen was
unable to determine what work Pazoureck was performing
and whether he was performing as Pho-Tech. Then, on May
1, Chapel Chairman O'Brien informed Pike that, although
Pazoureck had worked for the Newspaper on Monday, his
day off, that no overtime request had been made to the
Local Union by the Newspaper and that the members did
not know what work Pazoureck was performing and were
complaining about the failure of Pike to enforce the deci-
sion of the International Union's executive committee.
Having failed to receive by 6 p.m. on May 1 a written
statement from Pazoureck envincing his intent to divest
himself of Pho-Tech, Pike drafted a letter to Chapel Chair-
man O'Brien instructing him "to remove Pazoureck's priori-
ty immediately" in accordance with the ruling of the
International Union's executive committee . The letter
which was hand delivered by Pike to the composing room
at about 7 p.m. on May 1 and posted on the Local Union's
bulletin board was immediately complied with. In pertinent
part the letter reads:
In a telephone conversation with Mr. Pazoureck on
Sunday, April 29, 1973, I took the liberty of offering
him the option of immediately divesting himself of any
interest he holds in the company or forfeit his priority
immediately.
He elected to divest himself of his company and agreed
to sign a statement to that effect and deliver said state-
ment to my office by Monday, April 30, 1973.
As of this writing, 7:00 p.m. Tuesday, May 1, 1973 I do
not have a signed statement, a phone call or any evi-
dence that Mr. Pazoureck has divested himself of his
company. The evidence is to the contrary.
I have no other alternative than to assume Mr. Pazour-
eck continues to operate his company-which he is
entitled to do.
In accordance with the Executive Council 's decision,
effective immediately, Mr. Pazoureck is classified as a
proprietor member. I am instructing you as Chapel
Chairman to remove Mr. Pazoureck's priority immedi-
ately!
Mr. Pazoureck may continue employment at the Sacra-
mento Union after this date on a non-priority basis or
until such time as he shows evidence that he is no
longer a proprietor (at which time he may establish
priority).
Thereafter, Pazoureck appealed the removal of his priori-
ty first within the Local Union and then to the International
Union. At one point during the appeals, the Local Union's
executive committee sustained Pazoureck's position and his
priority was reestablished, but thereafter the membership of
the Local Union on about June 17 reaffirmed Pike's deci-
sion and Pazoureck once and for all lost his priority status
on or about June 17.15
61
The General Counsel in his posthearing brief, citing N.L.
R.B.- v. Hotel, Motel & Club Employees Union, Local 568,
AFL-CIO [Philadelphia Sheraton Corp.], supra, contends
that Respondent Local 46 violated Section 8(b)(2) and
(1)(A) of the Act because it failed "to comply with its dual
obligations of providing Pazoureck with reasonable notice
and an adequate opportunity to bring himself into confor-
mance prior to removing his priority," and that this "consti-
tutes a breach of Respondent's fiduciary duty to treat him
fairly." The Respondents' position is that, "assuming ar-
guendo, that a violation of a fiduciary duty on the part of
a labor organization constitutes, without more, an unfair
labor practice, there has been no such showing made in the
present case."
The so-called fiduciary duty of the Respondent Unions
to treat Pazoureck fairly, relied upon by the General Coun-
sel, has been defined by the Board as follows:
a union seeking to enforce a union security provi-
sion against an employee has a "fiduciary" duty to
"deal fairly" with the employee affected. "At a mini-
mum this duty requires that the union inform the em-
ployee of his obligations in order that the employee
may take whatever action is necessary to protect his job
tenure." Rocket and Guided Missile Lodge 946, JAM
(Aerojet-General Corp.), 186 NLRB 561, 562 (1970), cit-
ing N. L. R. B. v. Hotel, Motel and Club Employees Union,
Local 568, supra. [Emphasis supplied.]
The Board has applied this standard of fairness to labor
organizations only in situations involving the enforcement
of union-security clauses against employees. Consistent
with this limited application, the rationale expressed by the
Board and the courts justifying the doctrine indicates that
it is based upon the special nature of the proviso to Section
8(a)(3) of the Act permitting labor organizations and em-
ployers to enter into union security agreements. See, e.g.,
N.L.R.B. v. Hotel, Motel and Club Employees' Union Local
568, AFL-CIO, supra, and N.L.R.B. v. Local 182, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, 401 F.2d 509 (C.A. 3, 1968). In any
event, I have not decided whether, as a matter of law, the
Respondent Unions had a "fiduciary duty of "fair dealing"
in reducing Pazoureck's priority status for, even assuming
such a duty, it is my opinion, for the reasons set out below,
that the conduct here satisfied this duty.
On April 29, Pazoureck was placed on notice by the presi-
dent of the Local Union, Pike, of his obligation, pursuant
to the decision of the International Union's executive com-
mittee, to divest himself of Pho-Tech or lose his priority
status at the Newspaper. Pike specifically informed Pazour-
eck that to retain his priority all he had to do was immedi-
ately furnish Pike with a signed statement indicating he was
divesting himself of Pho-Tech and was getting rid of Pho-
Tech's customers . Pike waited 2 days before he acted to
15 In this regard, I note that the International Union's bylaws require that
the decision of the Local Union be abided by pending the outcome of an
appeal to the International Union's executive committee (art. V, sec. 34) On
October 23, the executive committee of the International Union denied
Pazoureck's appeal.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effectuate the International Union's decision and acted
only after Pazoureck had failed to furnish the requested
written statement and had engaged in conduct which on its
face created the impression that he was still operating Pho-
Tech.
There is insufficient evidence that the conditions which
Pazoureck had to meet in order to avoid the loss of his
priority were onerous. Pazoureck made no contention that
it was impossible for him to cancel Pho-Tech's contract with
the Newspaper, its only client. Rather, Pazoureck's refusal
to furnish a written statement indicating his intent to divest
himself of Pho-Tech was based upon his adamant and mis-
taken insistence that he was entitled to a written definition
of divestment from Pike. But Pike's refusal to define in
writing what he meant by divest did not create a hardship
for Pazoureck in drafting the general statement requested
by Pike. Moreover, Pike had made it perfectly clear to Pa-
zoureck that he did not expect him to sell Pho-Tech's truck
or the office furniture at Pazoureck's home.
There is not a scintilla of evidence that Pike's request for
a written statement indicating an intent to divest by Pazour-
eck was made in bad faith. The demand for such a state-
ment which Pike could show to the membership as evidence
that Pazoureck had agreed to terminate his business was
not, under the circumstances, unreasonable. Pike was realis-
tic in believing that a member of the Local Union would
challenge Pike's authority to allow Pazoureck to retain his
priority status. Moreover, Pazoureck's conduct on April 30
and May I created the impression that he had not, as an-
nounced, divested himself of Pho-Tech. Also relevant in
assessing Pike's conduct in this matter is that throughout the
intraunion proceedings when Pazoureck was attempting to
retain or regain his priority status, Pike treated him fairly
and assisted him whenever Pike was in a position to do so.
Thus, Pike took the position that the Local Union 's secre-
tary-treasurer should make the initial classification of Pa-
zoureck as a proprietor member in writing so that his appeal
could be facilitated. When the secretary-treasurer and Pa-
zoureck lost their tempers with the secretary-treasurer
threatening to remove Pazoureck's priority immediately,
Pike interceded and pointed out that Pazoureck was entitled
to retain his priority and to appeal the matter to the Local
Union's membership. When it became necessary to draft a
response on behalf of the Local Union to the secretary-
treasurer's appeal to the International's executive commit-
tee, Pike sought out Pazoureck and asked him to draft the
reply. And when the Local Union's executive committee
refused to entertain Pazoureck's appeal from Pike's action
removing his priority, it was Pike who was instrumental in
compelling the executive committee to reverse itself and
hear Pazoureck's appeal.
Based upon the foregoing, I am of the opinion there is
insufficient evidence to establish that either the Local
Union or Pike on behalf of said Union or the International
Union dealt with Pazoureck in bad faith or in an arbitrary
or unfair manner. The Respondent Unions treated Pazour-
eck fairly. As succinctly put in Respondents' posthearing
brief:
... the record reflects an effort by Pike to carry out
his responsibilities, both to the International in imple-
menting the ruling of the Executive Council, and to
Pazoureck in protecting his rights, in a fair and reason-
able manner.... At the very most, the record shows
no more than a misunderstanding between Pike and
Pazoureck as to the steps which should be taken by
Pazoureck on Monday or Tuesday, April 30 and May
I in order to protect Pazoureck's priority.
For the reasons set forth above, I find that the Respon-
dent Unions did not, as alleged in the complaint, engage in
conduct violative of Section 8(b)(2) and (1)(A) of the Act.
Accordingly, I shall recommend that the complaint be dis-
missed in its entirety.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Sacramento Union Corporation is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Central Valley Typographical Union Local No.
46, AFL-CIO and International Typographical Union,
AFL-CIO, the Respondent Unions, are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondent Unions have not engaged in unfair
labor practices within the meaning of Section 8(b)(2) and
(1)(A) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER i6
The complaint is dismissed in its entirety.
16 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Section
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes