San Francisco-Oakland Mailers' Union 18Download PDFNational Labor Relations Board - Board DecisionsSep 23, 1968172 N.L.R.B. 2173 (N.L.R.B. 1968) Copy Citation SAN FRANCISCO-OAKLAND MAILERS' UNION 18 2173 San Francisco -Oakland Mailers' Union No. 18, In- ternational Typographical Union and Northwest Publications , Inc. Case 20-CB-1678 September 23, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On April 12, 1968, Trial Examiner James R. Hemingway issued his Decision in the above-enti- tled proceeding, finding that Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed a brief in support of the Trial Examiner's Decision. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the en- tire record in this case , including the Trial Ex- aminer 's Decision, the exceptions, and the briefs, and, with the limited modifications indicated herein , adopts the findings, conclusions, and recommendations of the Trial Examiner. The complaint alleged that Respondent restrained and coerced the Charging Party in the selection and retention of its representatives for the purposes of collective bargaining and the adjust- ment of grievances in violation of Section 8(b)(l )(B) of the Act. As set out more fully by the Trial Examiner, the acts which are alleged to con- stitute violations of the Act were certain threats and disciplinary action taken by Respondent against the Charging Party's foreman and assistant foremen, who were also members of Respondent Union.' Specifically, Foreman Cox and Assistant Foremen Thompson and Fraser were cited to ap- pear before Respondent's executive committee which had the power to discipline union members. The citations involved certain alleged violations by the individuals of the collective-bargaining agree- ment between Respondent and the Charging Party.' Upon instructions from the Charging Party, the foreman and assistant foremen did not appear be- fore Respondent's executive committee and were eventually found to be in contempt of the commit- tee and fined. There was, in addition, evidence of a number of threats made by Respondent's agents to Foreman Cox and Assistant Foremen Thompson and Bowlin. These threats also arose over disagree- ments involving contract interpret tions or grievance adjustment and in essence ,threats to take these individuals before Respondent's execu- tive committee. We are in agreement with the Trial Examiner that the citation of Cox, Fraser, and Thompson was not, as contended by Respondent, solely for in- vestigative purposes. We find, rather, that Respon- dent's actions, including the citations, fines, and threats of citation, were designed to change the Charging Party's representatives from persons representing the viewpoint of management to per- sons responsive or subservient to Respondent's will. In enacting Section 8(b)(1)(B) Congress sought to prevent the very evil involved herein-union inter- ference with an employer's control over its own representatives.' That Respondent may have sought the substitution of attitudes rather than persons, and may have exerted its pressures upon the Charg- ing Party by indirect rather than direct means, can- not alter the ultimate fact that pressure was exerted here for the purpose of interfering with the Charg- ing Party's control over its representatives. Realisti- cally, the Employer would have to replace its foremen or face de facto nonrepresentation by them. In all the circumstances, therefore, we find that Respondent's acts constitute restraint and coercion of the Charging Party in the selection of its representatives within the meaning of Section 8(b)(1)(B) of the Acts Respondent contends that Section 8(b)(1)(B) of the Act does not reach internal disciplinary mea- sures against union members and cites Allis-Chal- mers Mfg. Co. v. N.L.R.B., 388 U.S. 175, in support of its position. In our opinion, the Supreme Court's ' Pursuant to the provisions of Section 3(b) of the National Labor Rela- tions Act, as amended , the National Labor Relations Board has delegated its powers in connection with this case to a three -member panel 2 By the terms of the collective-bargaining agreement between Respon- dent and the Charging Party, foremen are required to be members of the Union ' These violations included the use of an assistant foreman to repair a machine, the passing of a newspaper wrapper to a teamster to replace a wrapper that fell off a bundle of newspapers, and the permitting of a non- member of Respondent to remove some newspapers from a bin in order to complete a bundle needed for delivery 'In the course of the Senate's consideration of Section 8(b)(I)(B), Senator Ellender stated [Q]uite a few unions forced employers to change foremen They have been taking it upon themselves to say that management should not ap- point any representative who is too strict with the membership of the union This amendment seeks to prescribe a remedy in order to prevent such interferences [93 Cong. Rec 4266, Leg Hist , p. 1077] We do not find it necessary to rely on the Trial Examiner's theory that the citation of the Charging Party's representatives restrained and coerced the Charging Party to substitute Respondent 's executive committee for the special standing committee as the Charging Party's representative to make ultimate decisions on contract interpretation 172 NLRB No. 252 2174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Allis-Chalmers decision is not applicable to the present situation. The Supreme Court, in finding lawful the union action involved in Allis-Chalmers, relied in part on the proviso to Section 8(b)(1)(A), providing that the right of a labor organization to prescribe its own rules with respect to the acquisi- tion or retention of membership shall not be im- paired. However, that proviso is limited to Section 8(b)( I )(A) of the Act only and is not a part of Sec- tion 8(b)(1)(B). In addition, only legitimate inter- nal union affairs are protected under Allis-Chal- mers.s The Allis-Chalmers case involved a union's fining of its members for crossing picket lines The primary relationship there affected was the one between the union and its members, and the union's particular objective-solidarity in strike ac- tion-was deemed by the Supreme Court a legiti- mate area for union concern in the circumstances involved. In contrast, in the present case, the rela- tionship primarily affected is the one between the Union and the Employer, since the underlying question was the interpretation of the collective- bargaining agreement between the parties. The relationship between the Union and its members appears to have been of only secondary im- portance, used as a convenient and, it would seem, powerful tool to affect the employer-union relation- ship; i.e., to compel the Employer's foremen to take prounion positions in interpreting the collective- bargaining agreement. The purpose and effect of Respondent's conduct literally and directly con- travened the statutory policy of allowing the Em- ployer an unimpeded choice of representatives for collective bargaining and settlement of grievances. In our view it fell outside the legitimate internal in- terests of the Union, and, as found by the Trial Ex- aminer, constituted a violation of Section 8(b)(1)(B) of the Act.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that Respondent San Francisco-Oakland Mailers' Union No. 18, International Typographical Union, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. See N L R B v Industrial Union of Marine & Shipbuilding WorAers of America and its Local 22, 391 U S 418 (1968), where the Supreme Court held that a union could not expel a member for failing to exhaust mtrau- mon grievance procedures prior to filing a complaint with the Board on a matter which involved the Taft-Hartley Act Coercion used to discourage, retard, or defeat access to the Board was held to go beyond the legitimate interests of the union ' We therefore do not adopt the Trial Examiner's dictum that Respon- dent could have disciplined its foremen members if it had not bargained away such rights in its collective-bargaining agreements TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. HEMINGWAY, Trial Examiner: Upon a charge filed on May 9, 1967, by Northwest Publica- tions , Inc., herein called the Charging Party, against San Francisco-Oakland Mailers' Union No. 18, In- ternational Typographical Union, herein called the Respondent, alleging violations of Section 8(b)(1)(B) of the National Labor Relations Act, as amended, 29 U.S.C. 151, et seq., herein called the Act, a complaint issued on September 26, 1967. Respondent's answer, filed on October 6, 1967, de- nied the allegations of unfair labor practices. Pursuant to notice, a hearing was held before me in San Francisco, California, on January 4 and 19 and February 5.1 At the opening of the hearing, the General Counsel made a motion to amend the com- plaint by making certain corrections and additions. The motion was granted. At the conclusion of the hearing the parties requested time in which to file briefs with the Trial Examiner. Time was granted and was, upon request of Respondent's counsel, extended to April 1, 1968. Briefs were received from the General Coun- sel and the Respondent at the close of that day and have been considered. From my observation of the witnesses and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, and the answer admits, that the Charging Party, a Delaware corporation, is, and has been at all times material herein , engaged in the publication of the San Jose Mercury, the San Jose News, and the San Jose Mercury-News at its newspaper publishing plant located in San Jose, California; that during the past calendar year, in the course and conduct of its business operations, the Charging Party received from the sales of newspapers and advertising therein gross revenues in excess of $200,000; that during the past calendar year, in the course and conduct of its business operations, the Charging Party has subscribed to Associated Press, United Press International, and interstate news services, has published nationally syndicated features, and has advertised nationally sold products. On the foregoing facts, I find that the Charging Party is engaged in commerce within the meaning ' The transcript of the proceedings is hereby corrected in accordance with the list of corrections in Appendix B [Omitted from publication ] SAN FRANCISCO-OAKLAND MAILERS' UNION 18 2175 of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case.2 II. THE ISSUE Whether or not Respondent restrained or coerced the Charging Party in the selection of his representative for the purposes of collective bar- gaining or the adjustment of grievances by citing or threatening to cite foremen and assistant foremen to appear before Respondent's executive commit- tee as the first step in a procedure of Respondent which could result in a fine or other punitive action when the decision of the foreman or assistant foreman as to settlement of grievances is at vari- ance with the contentions of Respondent's chapel chairman or other agents rather than taking grievances through the channels provided for in the contract, among which is arbitration. III. THE FACTS A. Contract Provisions Respondent (admittedly a labor organization within the meaning of the Act) and Charging Party entered into a collective-bargaining agreement (herein called the contract) in June 1965, with a term extending to March 4, 1967. The customary automatic renewal language was not included, but the complaint alleges and the answer admits that since March 4, 1967, the contract had been ex- tended on a day-to-day basis. Pertinent provisions of the contract, including portions of Respondent's general laws which are in- corporated into the contract by reference, insofar as they relate to foremen, provide as follows: 1. The foreman must be a journeyman. 2. "The foreman is the only recognized authority. Assistants may be designated to direct the work but only the foreman may em- ploy and discharge. In filling vacancies the foreman shall be governed by the provisions of article vi, general laws."' 3. Section 17 of the contract provides: "(a) The operation, authority and control of each mailing room shall be vested exclusively in ... [the Charging Party] through its representa- tive, the foreman, who shall be a member of the Union. In the absence of the foreman, the foreman-in-charge shall so function." "(b) The authority of the foreman shall be exercised in a nondiscriminatory manner under law and this agreement and no foreman or assistant foreman shall be subject to fine, discipline or expulsion by the Union for any Act within the scope of such authority." 4. "A foreman shall not be permitted to select his force from day to day, but must have such number of regular situations as are neces- sary to meet requirements and to reduce em- ployment of extras to a minimum. ..." General Laws, Art. II, Section 11. 5. "Foremen shall be permitted to perform work of the type ordinarily performed by jour- neymen for not more than five days and/or nights ... in any week; provided, that the foreman shall post a starting time and regular off-days and/or nights and shall comply with the same overtime provisions as journeymen; however, the foreman may advise with and give instructions through assistants on shifts in excess of five. Supervisory foremen and/or ex- ecutive foremen shall be exempt from overtime provisions." Section 12(c), contract. 6. The contract provides for a standing committee of four, two each of which are named by the Respondent and Charging Party. All disputes arising under the contract, the construction to be placed on any clause, and disputes between the parties (except as other- wise provided) are required to be referred by the executive officers of each party to the standing committee. "It is understood ... that the Special Standing Committee is established by the terms of this agreement for the settle- ment of ... disputes ... and that the Special Standing Committee is the proper body to take up such disputes in the first instance and to set- tle them finally. . . . It shall require a vote of at least three (3) of the four (4) members of the Special Standing Committee to decide the is- sues. . . . If the Special Standing Committee cannot reach an agreement on any dispute within five (5) days (this time may be extended by unanimous agreement) from the date on which the dispute is first considered ... the members of the committee shall become a Board of Arbitration and shall select the chair- man of the Board by lot from among ... [named persons]. Decision of this Board by a majority vote is final and binding on the parties. B. Personnel Involved About 60 employees are currently employed in the mailroom on the day and night shifts. In February 1967, there were 80 in two plants. The Charging Party had built a new plant and its per- sonnel and equipment were moved to the new plant in stages. During the two-plant operations, up to May 1967, a larger than normal staff was required. All mailroom employees are under the head 2 Berea Publishing Company, 140 NLRB 516, Chicago North Side Newspapers, 124 NLRB 254 1 This relates to priority rights in hiring 2176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foreman , Edward Cox. Cox has several assistants. The ones here involved are Lyle Fraser, Eugene Bowlin , and Douglas Thompson. These assistants direct the work and, when the head foreman is not present , they may ( within the limits of the contract) call for additional men, lay off men, make initial decisions on grievances , and send a man home for cause and recommend his discharge . The assistant foreman on the night shift is usually in complete charge because the head foreman would not nor- mally be there. Actually under union rules incorporated in the contract , neither the foreman nor the assistant foreman actually selects men for employment or layoff. They determine the number of men needed. When additional men are needed , the foreman, or in his absence the assistant foreman , notifies the chapel chairman , the Respondent 's representative in the shop , and the chapel chairman notifies the men next in line for work to report . If men are to be laid off, the foreman , or in his absence the assistant foreman , tells the chapel chairman the number to be laid off and the chapel chairman noti- fies the men with the least retention rights. Of course, the very fact that the assistant foreman can send a man home , even though the head foreman might not thereafter discharge him, establishes the fact that the assistant foreman has some authority as a supervisor , and, if the head foreman is not, even temporarily , available at the time a grievance arises , the chapel chairman will take up grievances or disputes initially with the assistant foreman . In such instance , the assistant foreman is acting as a representative of manage- ment. Although conceding that Cox is a supervisor within the meaning of the Act, Respondent disputes the supervisory status of assistant foremen , arguing that Cox always makes an independent investiga- tion in cases of recommended discharge and does not rely on the recommendation of his assistant foremen .4 But for the purposes of this case, it is really unimportant whether or not Thompson, Fraser , and Bowlin are supervisors as long as they are representatives selected by Charging Party for the purposes of collective bargaining or the adjust- ment of grievances. And the fact is that the Charg- ing Party has designated the foreman and, in his absence , the assistant foreman , as its representative to make initial decisions in the adjustment of grievances or the settlement of disputes arising under the contract , and I find , therefore , that Cox, Thompson , Fraser , and Bowlin are representatives of the Charging Party within the meaning of Sec- tion 8 ( b)(1)(B) of the Act. The Respondent 's representative in the mailroom is the chapel chairman ( the equivalent of the steward in most unions ). Before November 1, 1967, the chapel chairman was Keith Bentley . After that date it was Don Streu , who had been assistant chapel chairman under Bentley. C. The Chapel Chairman 's Role and the Procedure for Disciplining Members The chapel chairman has a variety of duties. He collects dues , maintains the "slip board " ( employ- ment roster ) on which persons with regular " situa- tions " (jobs) enter their names and keep a record of overtime work , calls additional employees to work when requested to do so by the foreman, represents employees in the adjustment of grievances , represents the Respondent in the initial step in cases of alleged contract violations , enforces union rules , and makes a monthly report to the Respondent concerning the current number of situations , changes in personnel , and violations of contract and union rules . For this work , he receives from Respondent compensation at the rate of 50 cents per month per member working in the mail- room plus a telephone allowance. The chapel chairman , in his monthly report, can cite members for refusal to obey his instructions. If the chapel chairman mentions in his report a con- tract violation or violation of union rules , it is the practice of the executive committee to cite the member named in the report to appear before it in San Francisco to explain his actions . A violation of the contract can also be a violation of union rules.' The Respondent has made no distinction between foremen , as members , and rank -and-file employee members. San Jose is approximately 50 miles from San Francisco . If the executive committee , having heard the member cited , concludes that he has violated the contract or union laws , they , or one of them, will file charges against the accused member, which charges will then be considered by the Respon- dent 's investigating committee ( appointed by the Respondent 's president as chairman of the execu- tive committee ) at its next meeting . If the in- vestigating committee finds the charges worthy of trial , the matter is put to a vote of the membership. If the membership votes the matter worthy of trial, the charges go before a trial committee , also ap- pointed by the Respondent 's president as chairman of the executive committee , unless there is an ob- jection to such manner of appointment , in which case names are drawn from a hat . If the trial com- mittee finds the charged member guilty , it recom- ' Cox has been chary of acting upon recommendations for discharge because, under union working rules incorporated into the contract, a discharged employee is eligible for rehire in 6 months Since the selection of men for hire is controlled by the Respondent 's chapel chairman, there would be a strong probability that such discharged employee would be rehired and the original problem with him would be renewed Hence, Cox prefers to solve problems by means other than by discharge ' The bylaws of the Respondent's International Union provide, in art. V, sec I "Charges may be preferred against any member for any disreputable act, conduct unbecoming a union member, violation of laws of the local or International Union, or failure to observe provisions of the contract and scale of prices SAN FRANCISCO-OAKLAND MAILERS' UNION 18 mends a penalty, usually a fine,' although it could recommend expulsion. The membership then votes on the recommendation and determines whether or not to assess the fine, if that is the penalty. If it de- cides to do so, it assesses not only the fine but "ex- penses " incurred by the investigating and trial com- mittees as well. It is not revealed how these expen- ses are ascertained. D. Relations Between Cox and Bently The head foreman, Cox, had been Respondent's president before being employed by the Charging Party in 1965 as a superintendent. At that time, Keith Bentley was the mailroom foreman. Cox ap- pears to have found Bentley difficult to work with and he recommended his demotion. His recommen- dation was acted on by the Charging Party and Bentley returned to work as a hand in the mail- room. Thereafter, Bentley was chosen by the men working there as the chapel chairman. The Charg- ing Party was building a new plant at the time and, during the transition period when work was being carried on partly in the old plant and partly in the new plant, there was an unusually large number of contract interpreting problems, especially regarding manning of operations. Bentley and Cox had many heated arguments concerning these matters, and Bentley on five or six occasions in a 6- or 7-month period threatened to take Cox before the Respon- dent's executive committee because of a disagree- ment with Cox over contract interpretation or ad- justment of a grievance. On one occasion, Bentley told Cox that he was a "phony son-of-a-bitch," that Cox had "sold the union down the stream," and that Cox had no business holding a card in the I.T. (Respondent's International Union). E. Restraint and Coercion of Charging Party in Selection of its Representatives for the Purposes of Collective Bargaining or the Adjustment of Grievances Bentley , in his February 1967 chapel report to the Respondent, cited Assistant Foremen Lyle Fraser and Douglas Thompson "for conduct un- becoming a union member and operating outside the scope of their authority." In the same report, Bentley stated, "This chairman charges [Foreman] E. Cox with violation of low overtime hiring procedures as agreed to in supplemental hiring agreement of San Jose Contract." He further charged management with violation of Respon- dent's jurisdiction and suggested that a meeting with management might serve to resolve some of the problems mentioned. ' There is an appeal procedure which could carry the matter to the Inter- national Union or even to a national convention , but this is of no im- portance here r Before Thompson had started work on his overtime period, Chapel Chairman Bentley had called in another man (one James Campbell), or perhaps two men , without consulting with Cox , to work that evening, and 2177 As a result of this report, the Respondent called for a meeting of the special standing committee (as provided for in the contract), and on March 14, 1967, such a meeting was held. The Respondent was represented by its president, Douglas Smith, and by its secretary-treasurer, Duane Jones. The Charging Party was represented by Fred Mannon, industrial relations director, and by Hans Rosberg, production manager . However, Bentley, chapel chairman, Don Streu, then assistant chapel chair- man, Paul Welton, vice president of Respondent, and Duncan Ross, a representative of the Interna- tional , were also present for the Respondent, while Antone Peterson, the Charging Party's general manager , and Edward Cox, the head foreman, were also present for the Charging Party. At this meeting, Smith claimed that Cox had vio- lated the "low overtime hiring procedure" under a provision of the contract which required overtime work to be given to the man on the slipboard (em- ployees' list) who had received the least amount of overtime in a 90-day period. The alleged violation was identified as an instance when Cox had held Assistant Foreman Thompson over onto another shift for a few hours. Thompson had worked the overtime period as a foreman in charge. Although conceding that a supervisory foreman is exempt from the overtime provisions of the contract, the Respondent claimed that Thompson worked as a journeyman during the overtime period in that he had made repairs to a machine that had malfunc- tioned and stopped and that, although this was recognized as an emergency and although no question would have been raised if Thompson had made repairs under such circumstances during his regular shift, he should not have done so while working overtime.' The Charging Party took the position that, in an emergency, the foreman can make repairs regardless of whether or not he is working overtime. This dispute could have been resolved by an interpretation of the contract by the special standing committee or, if that committee was unable to reach agreement , by the next step- arbitration as provided for in the contract. Another complaint raised by the Respondent at this meeting was that Thompson had handed a wrapper or some wrappers (whether on the same occasion or at different times does not appear) out a window to a teamster on the platform. The Respondent wished to know if Thompson was act- ing under Cox's orders in doing so. If so, according to Bentley's line of reasoning, Thompson would have been exempt from fine but Cox, would not, unless he, also, had been acting on orders from the Charging Party. The basis of the Respondent's ob- jection apparently was that wrappers were to be put the Respondent claimed pay for the man or men so called Although the chapel chairman normally would have been the one to summon a man to work, he should, under the contract , have done so only when the foreman had asked him to This violation of the contract by Bentley does not appear to have resulted in any union action against him. 2178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on by mailers only, and not by teamsters, and that this act of Thompson's violated Respondent's ju- risdiction as defined in the contract. When a bundle of newspapers goes down the line and through the tying machine, a wrapper sometimes falls off and, if the bundle goes out the chute to the platform, the teamster there would find no designation on the bundle and would have to set the bundle aside until he could get a wrapper to put on it In such a case, the teamster had been accustomed to call in for a wrapper or even to come into the mailroom to get one himself and put it on the bundle as a quicker and easier method of rectifying a mistake, over- sight, or accident According to the Respondent, the bundle, apparently, should always be returned to the mailroom to have a mailer put a wrapper on the bundle. At the March 14 meeting, Mannon said that this complaint of the Respondent was blowing up an insignificant incident. Apparently, the Respondent contended that there were other such incidents, so it was agreed that, thereafter, an in- vestigation would be made and then a further meet- ing would be held. Mannon did not testify that he had raised any question as to the meaning of the ju- risdiction clause of the contract, although a basis might have been found for disputing Respondent's interpretation. Another complaint taken up at this meeting was that Assistant Foreman Lyle Fraser had violated the jurisdictional clause of the contract when he had "permitted a nonmember" of Respondent (Night Production Manager Ken Wells) to reach into a bin (where papers would fall after a breakdown of the machine) to remove some newspapers in order to complete a bundle which was needed for someone who had failed to get delivery. This incident had occurred after a press run was finished and the shift was over. Cox, who had been with Fraser, thought that the crew had gone home. Apparently one member had not yet left and had reported the in- cident to Bentley. Marmon said, with regard to this complaint against Fraser, that this was an excep- tionally small matter and that it had occurred only because Wells had done something in the interest of getting out production under a severe time schedule. I find some difficulty in understanding Respondent's logic in holding a subordinate management representative (Fraser) responsible for failure to stop a superior management represen- tative (Wells), but this point, apparently, was not argued, nor, so far as the evidence shows, was the meaning of the contract which provides, with respect to the jurisdiction claimed by the Respon- dent: "The party of the first part [the Charging Par- ty] shall make no other contract covering the work set forth above," or the meaning of the incor- porated general laws of the International which provide: "None but journeymen or apprentices may be employed to perform all work within the ju- risdiction of the Union." It is not clear to me why Respondent felt that Fraser, rather than someone else, should have been the one who, according to the Respondent, should have stopped Wells. I deduce, however, that Respondent was taking the position that the supervisory authority in the mail- room at that time was in Fraser and that he should have enforced the jurisdictional clause of the con- tract according to Respondent's interpretation. Otherwise, the member who witnessed Wells' ac- tions and reported them should have, himself, stopped Wells or been subject to discipline. At the March 14 meeting, the Charging Party raised a complaint of its own that the chapel chair- man had given orders to his crew not to put their hands in the counter stacker (apparently a part of the job). The Respondent claimed that one of the foremen had ordered the men to put their hands in that machine and that this was dangerous, so the chapel chairman had told them not to do it. The Charging Party argued at the meeting that, re- gardless of the danger, the chapel chairman had no right to give orders concerning the work but should have taken the matter up with management as pro- vided in the contract. I find no evidence of a settle- ment of this dispute. As soon as the meeting had adjourned (pending investigation by the Charging Party of the practices of drivers' coming into the mailroom for wrappers), Cox returned to his office. There Chapel Chairman Bentley came to him and handed him a letter, say- ing, "Here 's your love letter." The letter, dated the same day, March 14, 1967, reads. Dear Brother Cox. You are herewith cited to appear before the Executive Committee Sunday, March 19, 1967 in California Hall, 625 Polk Street, San Fran- cisco, California, the regular meeting place of the Union, at 11:45 a.m. for the purpose of al- lowing the Committee an opportunity to in- vestigate certain allegations contained in the February Mercury-News Chapel Report with regard to your actions in the Chapel. To clarify the nature of your citation, your attention is directed to Section 32 of the Local Constitution which directs the Executive Com- mittee to see that the laws of the Union are carried out and empowers the Committee to issue citations such as this.' Please be assured that this matter is of im- portance both to you and to the Union; your attendance is expected at the time and place noted above. BY ORDER OF THE EXECUTIVE COMMITTEE K. D. JONES Secretary-Treasurer 8 It will be observed that this was no "clarification" whatsoever , since it failed to inform Cox of the contents of the chapel report (which Cox had not seen) nor of the matter to be investigated The "laws" are , I deduce, those that are incorporated by reference into the contract SAN FRANCISCO-OAKLAND MAILERS' UNION 18 2179 On the same day, Bentley handed identical letters (except for the name of the person addressed) to Assistant Foremen Thompson and Fraser. Assuming that the Respondent's executive com- mittee intended to use its so-called investigation to pass on the same matters as had been taken up at the standing committee meeting as alleged viola- tions of the contract, Marmon instructed Cox, Thompson, and Fraser not to appear before that committee. He then wrote the following letter to the Respondent on March 16, 1967: Gentlemen: This refers to letters dated March 14, 1967, addressed to W. Edward Cox, Lyle Fraser and Doug Thompson, regarding ". . . certain allega- tions contained in the February Mercury and News chapel report with regard to your actions in the chapel." The three gentlemen who have been recipients of this letter act in the capacity of foremen and assistant foremen at the Mercury and News, and as such, are protected by the contract from ". . . fine, discipline and expulsion by the Union for any act within the scope of such authority." We suggest that any complaint of the Union with regard to the actions of these men as su- pervisors in our Mailroom be addressed to the Special Standing Committee provided for in Section 30 of contract between your Union and Northwest Publications, Inc. This section states in part that ". . . all disputes arising under this agreement, the construction to be placed on any clause of the agreement, and any and all disputes between the parties ..." shall be referred to the Special Standing Com- mittee. Because we believe the citations above referred to violate the spirit and intent of our contract, we have issued instructions to the in- dividuals who have been cited to appear before your Executive Board not to appear. We further request that if your Union has any quarrel with the activities of these foremen as it applies to their methods of directing the work in the Mailroom of the Mercury and News that you follow the specific provisions of the contract in the future. Sincerely yours, Fred W. Mannon Industrial Relations Director As instructed by Mannon, the three men cited by the executive committee refrained from appearing at the designated time and place. On March 22, 1967, the Respondent served on Cox, Thompson, and Fraser formal notice of charges filed against them for failing to appear be- fore the executive committee. On or about the same date, Bentley went to Cox's office and told Cox that he had been especially careful in the way he had written his chapel report so as not to involve the contract.9 Bentley did not show the language to Cox, and Cox did not actually see it until he was in the Respondent's office on March 30, 1967. On March 29, 1967, the Respondent wrote the following reply to Mannon's letter of March 16: This letter is being sent so that there will no misunderstanding regarding the subject matter contained in your letter of March 16, 1967, ad- dressed to this union. As you stated, we acknowledge that three members of the Mercury-News Chapel were cited to appear before our Executive Commit- tee for the purpose of investigating certain al- legations contained in the monthly chapel re- port and that these members act as foreman and/or assistant foremen. We do not argue that the foreman and assistant foremen are afforded the protection of Section 17(b) of the contract when proceeding under the contract or carry- ing out your instructions under the contract. It should be pointed out that none of these men were charged by the Executive Commit- tee with any violations of any sort, but were cited for the purpose before noted which is a lawful and proper procedure. Your interjection into this matter, which at this point is a wholly internal subject, has only served to complicate the situation. The three members involved did not appear as directed and have now been charged with contempt of the Executive Committee, an offense of some magnitude which is completely separate from any other question which may or may not have been raised in the investigation. Regarding your suggestion that "any com- plaint ... be referred to the Special Standing Committee ..." we must state that we do not know whether or not the Union will have a complaint against Northwest Publications. When the investigation of matters contained in the chapel report is allowed to proceed in an orderly fashion and a conclusion is reached, you will be notified if the Union has a com- plaint under the contract. We are sure you will agree that the Union has not been hesitant in calling for a meeting when a matter of mutual interest has arisen. Furthermore, and finally, if you believe that an investigation by the Union executive committee into union members ac- tions in the chapel of their employment con- e The language in the chapel report is: "This chairman charges E. Cox with violation of low overtime hiring procedure as agreed to in supplemen- tal hiring agreement of San Jose contract." 2180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stitutes a violation of our contract , we suggest that you pursue the matter according to the contract rather than involving yourself on a unilateral basis. This letter was signed by K. D. Jones , the Respon- dent 's secretary -treasurer , and it noted copies had been sent to Production Manager Rosberg and General Manager Peterson also. About April 25, 1967, when Bentley had taken a grievance or dispute up with Assistant Foreman Thompson and the latter had made a decision based on his interpretation of the contract which was not to Bentley 's liking , Bentley told Thompson, as quoted by the latter: "I will take you before the executive board every chance I get. I will get your -[posterior ]. You wait and see." On May 2 , 1967, Respondent sent to Cox, Thompson , and Fraser letters notifying each of them that the charges filed against them had been found by the membership to be "cognizable " ( i.e., approved for processing ) and that a committee had been appointed to investigate the charges on May 7, 1967. On May 5, 1967, Mannon again wrote to the Respondent with reference to its intent to proceed with investigation of charges against Cox, Thompson , and Fraser , saying that the charges arose from the failure of the supervisors to appear before the Respondent 's executive committee to adjust various grievances arising under the collec- tive -bargaining agreement , that the special standing committee and not the supervisors10 was the agreed representative for the settlement of disputes arising under the agreement , and that , therefore , they had been instructed not to attend the investigation men- tioned in the Respondent's letter of May 2 to those supervisors. Before any further steps were taken against the supervisors by Respondent , the next meeting of the special standing committee was held on May 9, 1967. Production Manager Hans Rosberg, Industri- al Relations Director Mannon, and Foreman Cox represented management . The Respondent was represented by two representatives of the Interna- tional , by its secretary , and by its chapel chairman and assistant chapel chairman . The results of this meeting were summarized on May 15, 1967, by Respondent's secretary , by the chapel chairman, and by the latter 's assistant on two sheets of paper. On six disputes , agreement had been reached, ac- cording to this summary , which was posted on the bulletin board . Two of these concerned matters which had been discussed at the meeting of March 14, 1967, and which had been heretofore men- tioned. The aforesaid summary stated these two as follows: It was agreed that drivers have no business going through wrappers, etc. in the Mailroom; if a driver has a question regarding his load order, schedule, etc. he should go to the Mail- room Foreman. It was agreed that supervisory help kept on overtime by virtue of their supervisory capacity should confine themselves exclusively to super- visory duties except in case of emergency. Emergency was debated, but generally agreed that this was the same emergency referred to in section 26 of the contract. Section 26 of the contract defined emergency as "a 'breakdown' of the machinery and every condition arising over which the Publisher has no control." From this, I conclude that the special standing com- mittee had reached a settlement which proved that Assistant Foreman Thompson had acted within the contract terms, even on overtime, when he had repaired a machine that had broken down. The summary also contained a paragraph enumerating a number of matters which remained unsettled." In this paragraph it was recited that a second meeting had been scheduled for May 10 but stated that an unfair labor practice charge filed with the Board had been delivered to the Respondent's office on May 9, that Mannon had been responsible therefor, that Mannon had said that the charge "was a result of the Union's exercising of its procedures" relative to Cox, Thompson, and Fraser, and concluded by saying, "The rug having been pulled out from under our discussions, the meeting was adjourned."12 On June 19, 1967, the Respondent wrote letters to each of the three supervisors, Cox, Thompson, and Fraser, notifying them that the membership had voted, on the basis of the report of the trial committee, to assess fines against them. In the case of Cox, the fine was $100 plus $17.17 costs. Each of the assistant foremen was assessed a fine of $50 plus $17.17 costs. The amount so assessed was paid by each. The money for the fines was furnished by the Charging Party, although the arrangement for repayment between the Charging Party and the three supervisors was not revealed. In support of an allegation added to the com- plaint by amendment made at the hearing, the General Counsel adduced evidence to show that, in January 1968, Don Streu, then chapel chairman, threatened to take Assistant Foreman Eugene Bowlin before the Respondent's executive commit- tee when Bowlin made a decision which Streu 10 1 assume Maranon meant that , since the matter had been taken to the special standing committee already, the matter was no longer in the hands of the supervisors " One of those listed was "assistant foreman being hired on overtime ahead of low-overtime man " This would appear to have been settled No claim had been made that Thompson had been held over by Cox to work as a journeyman as distinguished from a supervisor , except insofar as Thomp- son had performed work in an emergency as he had a right to do No amended charge of refusal to bargain was filed against Respondent by the Charging Party because of this statement , although it is well- established law that the filing of a charge is no justification for a refusal by the one against whom the charge is filed to bargain collectively Meyer Frabes, d/b/a Gatesiay Luggage Manufacturing Co, 122 NLRB 1584, Southland Cork Company, 146 NLRB 906, 923, N L R B v Taormina Com- pany, 207 F 2d 251 (C A 5) SAN FRANCISCO-OAKLAND MAILERS' UNION 18 2181 disputed. The issue arose over an incident that had occurred on the night shift when Bowlin alone was in charge . Although the shift ends at 4:30 a.m., the practice was to let the crew leave at 4:15 a.m. if they had, by that time, been on the insert machine for an hour. After each hour's run on the machine, a 15-minute relief period had to be given, but after 4:15 a.m., if a relief of 15 minutes were given, it would mean that the men were to be kept on over- time, and, at 4:30 a.m., if the men were so retained, they would be entitled to half an hour's lunch period before returning to work. The facts occurred as follows: About 3:03 a.m., Bowlin , the assistant foreman in charge of the night shift, gave the crew a relief period and told the men to be back at 3:20 a.m. They were back at that time and started the machine. At a few minutes before 4 a.m., the machine operator, Murphy, came to the office and asked Bowlin how long he was going to run. Bowlin told him to run until 4:20 a.m., which would make a full 1-hour's run. Murphy told Bowlin that the chapel chairman had told the men that they would have to have a break at 4:15 and that he should shut the machine down then. Bowlin told him, "No, run the hour until 20 after." As Murphy left the office, three skids of paper toppled over and spilled around on the floor. Bowlin came out of the office and told the men to push the papers aside and then continue to run the machine. Bowlin intended to have two extra men and the oiler pick up the papers. Murphy did start the machine , but Streu, the chapel chairman, according to his own testimony, "stopped the machine and the crew came over and started picking the paper up, and started restacking it, and they were doing that a good five minutes," after which they started the machine again . 13 At 4 : 15 a.m. Streu called to Bowlin , "How about it, are you going to shut them down?" Bowlin replied, "No, twenty after." Streu's testimony following this exchange of words-suggests that Streu was attempting to cause the work on the machine to exceed 1 hour, thereby requiring Bowlin to give a relief period which would have ended after 4:30 a.m., when the men would also have been entitled to a lunch period, in which case the 12-man crew would have been entitled to 3/4- hour overtime pay without working. Streu's testimony was that at 4:20 a.m. he, himself, told the men who wanted to quit at that time , "No, stay right on there until- ." He checked his testimony before he completed his quotation, but that his pur- pose was to run past the hour of run in order to claim overtime is evident from his subsequent ac- tions. He testified that the operator did not shut the machine down until 4:22 a.m. Then Streu got a journeyman as a witness and waited for Bowlin to finish his report and leave his office. When Bowlin came out, Streu asked Bowlin why he had broken the contract and kept them all on the machine for more than an hour. Bowlin denied that he had broken the contract. Streu said in unprintably vul- gar language (as testified by himself) that he did not like the way Bowlin had taken it out on the men when a skid had fallen on the floor, that Bowlin had broken the contract, and that " I am going to take you to the City," meaning before the executive committee in San Francisco. Bowlin called on a witness to note Streu's threat. Streu testified that he had replied to Bowlin, "I didn't threaten you. You are going to the City." Streu thereafter telephoned the R pondent's president and told him "about going pat the one hour." President Smith told Streu to take it through normal channels. Thereafter, Streu (according to his own testimony) wrote the incident up in his chapel report, but he did not testify that he had filed his chapel report yet. The executive commit- tee had not cited Bowlin to appear before it up to the time of Streu's testimony on February 5, 1968. However, Streu's January chapel report would not have been due to be filed until February 15, after the close of the hearing, so the final outcome of this incident is unknown. Arguments and Conclusions Section 8(b)( I )(B) of the Act makes it an unfair labor practice for a labor organization or its agents to restrain or coerce an employer in the selection of his representatives for the purpose of collective bargaining or the adjustment of grievances. The General Counsel argues that Respondent's "con- tinuing threats of disciplinary action and its citing of the foremen, requiring attendance at a meeting some 45 miles away from their homes, purportedly to `investigate' matters about which there was no factual dispute, are actions which coercively af- fected the Employer in the selection and retention of representatives having the authority to adjust grievances and to apply, interpret and enforce the contract." The Respondent's defense is that there is no coercion or restraint in merely citing a foreman to appear before the executive committee because that committee does not, itself, impose any fine or other discipline and that the fines actually imposed for failure to appear before the executive board (a violation of internal union rules) and not because of any decision made by the supervisors under the contract. With respect to the argument that the executive committee does not, itself, fine, punish, or expel members, reference may be made to the Respon- dent's own constitution which provides that the ex- ecutive committee: Sec. 32 (e) ... shall have power to discipline mem- bers and to carry out the spirit and letter of the " Bowlin testified that the men had apparently not heard his instructions, but Murphy must have heard him because he had started the machine Streu testified that he , himself, had stopped the machine again because the men were not on the head- they were still picking up papers 2182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Constitution. They shall serve as a Discipline Committee have power to cite members before said Discipline Committee, the Executive Committee, or the Union. They shall be em- powered to prefer charges either as a commit- tee or by order of the Union, as a situation may warrant . . . Although discipline for more serious offenses is generally handled initially by the filing of charges, which are then processed through an investigating committee, a trial committee, and finally to the membership, the executive committee appears to have authority (as a disciplinary committee) to discipline members. Potentially, therefore, citation of a foreman to appear before the executive com- mittee carries implicit in it the possibility of disciplinary action if the executive committee should disagree with the foreman's interpretation of the contract. Even if the executive committee should not, as Respondent maintains , have authori- ty to discipline except in minor cases members of that committee can file charges against the foreman (and have done so) and cause him to be tried and very likely fined for what Respondent interprets (contrary to the foreman) to be a violation of the contract or of its rules.14 The chance that the ex- ecutive committee might decide not to charge the foreman after he appears before it presents a gam- ble that would not remove a foreman's feeling of constraint or compulsion to defer to the chapel chairman's decision in matters of interpretation of the contract. The Respondent takes the position that, in citing the Charging Party's foreman and assistant foremen to appear before the executive committee, it was concerned only with an investigation which might disclose no violation or, presumably, only a viola- tion of a union rule which would be an internal union matter, and that, under the proviso to Sec- tion 8 (b)(I)(A) of the Act, the imposition of a penalty on a foreman member would not be an un- fair labor practice. This argument ignores the fact that the Respondent is not charged here with restraining and coercing employees under Section 8(b)(1)(A) of the Act. It is charged with restrain- ing and coercing the Charging Party in its selection of representatives for the purposes of collective bar- gaining15 or the adjustment of grievances. But the Respondent's argument goes further and disregards the express provisions of the contract that (I )"no foreman or assistant foreman shall be subject to fine, discipline or expulsion by the Union for any act within the scope of such authority" and (2)"to the Special Standing Committee ... shall be " In addition to being subject to penalty for violation of internal rules of the Union, members are subject to discipline for violation of contract under Respondent 's bylaws, art V, sec I But foremen and assistant foremen are supposed to be exempt from discipline when acting within their authonty in making their decisions " Collective bargaining includes the adjustment of grievances and dif- ferences arising in the course of the administration of the contract through referred all disputes arising under this agreement, the construction to be placed on any clause of the agreement , and any and all disputes between the parties except as otherwise provided for in this agreement." The Respondent claims that before penalizing or even citing a foreman member for a violation, it first ascertains whether or not the foreman's act was within the scope of his authority. In the first in- stance, the Respondent asserts the chapel chairman is the one who ascertains whether or not the act is within the scope of the foreman's authority. Bent- ley, chapel chairman in 1967 until November, testified that he ascertained whether or not what the foreman did or decided was within the scope of his authority by finding out whether or not the foreman was acting under instructions of his superi- or. If Bentley decided that he was not, he reported this to the Respondent's executive committee. Then the executive committee would cite the foreman to appear before it, hear the foreman's explanation, and pass on the chapel chairman's judgment, usually supporting the chapel chairman . It is plain that the very test of "scope of authority" applied by the chapel chairman is, in itself, a unilateral in- terpretation of one clause of the contract which, in another clause, expressly requires such decisions to be made by the special standing committee or by that committee and an arbitrator. The Respon- dent's procedure for following up the chapel chair- man's decision is likewise a unilateral one. Some of :he difficulty here arises from the fact that the Respondent required incorporation into the contract of provisions of the International's general laws, and the Respondent appears to feel that it was permitted to enforce these laws as a matter of internal union regulation independently of the contract. That it may do so and may fine or otherwise penalize members who have, in the judgment of the Respondent, violated those laws is not disputed where the Respondent has not bar- gained away such rights, as it has in the case of foremen and assistant foremen.'s The very purpose of the contract clause exempting foremen and assistant foremen from union discipline is to make their decisions truly the decision of management rather than those of the Respondent. Those deci- sions frequently involve an interpretation of the contract. The foreman's interpretation cannot be confined to the Respondent's mold if management is to have undominated representatives as contem- plated by the contract. The clause of the contract giving rise to a con- siderable amount of conflict between the chapel divergent interpretations Hughes Tool Company v N L R B , 147 F.2d 69 (C A 5), Timken Roller Bearing Co v NL RB , 161 F 2d 949 (C A 6) 18 A clause in the International's bylaws recognizes the right of the local by contract to prescribe a method of determining differences between the employer and the local union (art VII, secs I and 36) and the right to ex- empt foremen from union discipline (art VII, sec 33) SAN FRANCISCO-OAKLAND MAILERS' UNION 18 chairman and the foreman is the clause describing the Respondent's jurisdiction. The Respondent adopts an interpretation which makes it a violation of the contract if anyone who is not a mailer does any act of the character described as within the Respondent's jurisdiction. In the jurisdiction clause of the contract, after the enumeration of types of work claimed by the Respondent, the clause con- cludes: "The party of the first part [the Charging Party] shall make no other contract covering the work set forth above." This does not, in fact, say that the Charging Party must deter nonmailers who perform such work without requirement by the Charging Party gratuitously or in order to perform their regular jobs; but when the Respondent takes the position that it can penalize a foreman or assistant foreman for tolerating such gratuitous per- formance, this deprives the foreman, as the Charg- ing Party's representative, of the right to apply the contract as it is apparently worded and, in any event, according to his interpretation of it. If the Respondent does not agree with the foreman's un- derstanding or interpretation of the contract, it is obliged by the contract to follow the procedure for the settlement of such disagreement by carrying the matter to the special standing committee as pro- vided in the contract. If the special standing com- mittee does not reach a solution without the addi- tion of the outside arbitrator provided for in the contract, the Respondent has no right to disregard the prescribed method of settlement (by arbitra- tion) and to substitute its executive committee for those representatives who are designated by the contract and who necessarily include the em- ployer's chosen representatives." Smith, the Respondent's president, testified that the executive committee, of which he is the chair- man, had cited Cox, Thompson, and Fraser to ap- pear before it solely for investigative purposes. I do not credit this testimony, because Smith and other representatives of the Respondent who were present at the meeting of the special standing com- mittee on March 14, 1967, had every opportunity at that time to question Cox and could have asked that Thompson and Fraser also be called in to the meeting for questioning . Other witnesses also could have been called. The Respondent even agreed to a further meeting, although without date, to be held after the Charging Party had investigated some of the alleged practices complained of by the Respon- dent . Furthermore, the Respondent' s witnesses acknowledged that there was no dispute as to the facts concerning the complaints against Cox, Thompson, and Fraser. The only dispute, therefore, was whether or not what each of them did was a violation of the contract, and it was the special standing committee, not the Respondent, to whom this determination was entrusted by the terms of " See, on duty of a union to follow contract procedures for settlement of grievances, Square D Co v NLRB , 332 F 2d 360 (C A 9) 2183 the contract. Even more revealing of Respondent's intent to decide the issue itself is the fact that Respondent had in its possession at the time of the March 14 meeting previously prepared citations to deliver to Cox, Thompson, and Fraser after the meeting . It is evident from this that Respondent had prepared to crack down on the foreman if Respon- dent's interpretation of the contract did not prevail at the standing committee meeting. I conclude, then, that the Respondent's purpose in serving the citations against Cox, Thompson, and Fraser on March 14, 1967, was not to investigate, which it had no need to do but to restrain and coerce the Charging Party in the selection of foremen and assistant foremen and to induce the substitution for those representatives of others who would make contract interpretations in the same way that the Respondent interpreted the contract. But even if it could be argued that the Respon- dent's purpose was not to restrain or coerce the Charging Party in the selection of its foremen and assistant foremen, I find that Respondent, by citing the Charging Party's collective-bargaining represen- tatives to appear before it upon the very matters that were, or should have been, resolved through the special standing committee, restrained and coerced the Charging Party to substitute the Respondent's executive committee for the special standing committee or for that committee plus one of the arbitrators named in the contract as the Charging Party's representative to make the ulti- mate decision on contract interpretation. I conclude, therefore, that Respondent has restrained and coerced the Charging Party in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances in violation of Section 8(b)( I )(B) of the Act.'8 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the Charging Party's operations described in section I, above, have a close, intimate, and substantial rela- tionship 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. 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. Respondent is a labor organization within the meaning of Sections 2(5) and 8(b) of the Act. " Southern California Pipe Trades District Council No 16, et al (Paddock Pools of California, Inc ), 120 NLRB 249 2184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Charging Party is an employer within the meaning of Sections 2(2) and 8(b)(1)(B) of the Act. 3. The Charging Party is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4. W. Edward Cox, Douglas A. Thompson, Lyle J. Fraser, and Eugene Ernest Bowlin at all times material herein have been representatives of the Charging Party, selected by the Charging Party for the purposes, among others, of collective bargain- ing and the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act. 5. By restraining and coercing the Charging Party in the selection of its representatives for the pur- poses of collective bargaining or the adjustment of grievances, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY There is evidence the Respondent's practice of citing foremen (or other representatives of em- ployers for the purposes of collective bargaining or the settlement of grievances) to appear before its executive committee is not limited to representa- tives of the Charging Party but extends to those of other employers. I shall recommend, therefore, that Respondent cease and desist from in any manner restraining or coercing not only the Charging Party but also any other employer with whom Respon- dent has a collective-bargaining agreement contain- ing provisions similar to those here involved- which exempt the employer's foremen and assistant foremen (or other representatives authorized to bargain collectively or to adjust grievances) from disciplinary action by the Respondent against its members and which provide for specific representa- tives and mechanics for the settlement of grievances or disputes arising under the contract- in the employer's selection of representatives for such purposes. This means that Respondent shall cease and desist from its practice of citing foremen or assistant foremen to appear before the executive committee for "investigative purposes" where the purpose thereof is to inquire into the decision of a foreman or assistant foreman regarding his in- terpretation or application of the collective-bar- gaining agreement regardless of whether or not such foreman or assistant foreman has received ex- press directions regarding such matter from his managerial supervisors. I shall further recommend that Respondent be ordered to cease and desist from refraining or 10 See Southern California Pipe Trades District Council No 16, et al (Paddock Pools of California, Inc.), 120 NLRB 249 20 Smith testified that Cox's fine might have been more than that of either refusing to utilize the special standing committee or other representatives selected by the employer as the means to settle disputes or grievances arising under the contract in order to restrain or coerce the employer in the selection of his collective-bar- gaining representatives.19 Foreman Cox and Assistant Foremen Thompson and Fraser each paid to Respondent a fine and costs levied by Respondent for their failure to ap- pear before the Respondent's executive committee to answer for decisions made by them involving in- terpretation of the collective-bargaining agreement. Because I have found that the citation of such men to appear before Respondent's executive commit- tee was a means used by Respondent in restraining and coercing the Charging Party in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances, I find that the coercive effect thereof can be removed only if Respondent is required to rescind and repay the fines and costs to the men who paid them. The fact that the Respondent imposed the fines for failure of Cox, Thompson, and Fraser to appear be- fore the executive committee rather than for mak- ing a decision not to Respondent's liking in the ad- ministration of the contract is immaterial, because the Respondent's acts in coercing the Charging Party by means of citations of foreman or assistant foremen to appear before its executive committee constituted the causing cause leading to the ulti- mate imposition of the fines. It is also immaterial for the purposes of this case whether or not the money used to pay the fines was lent or donated to Cox, Thompson, and Fraser by the Charging Party. The extent to which those three men may be in- debted to the Charging Party is of concern only to them and the Charging Party. I shall, therefore, recommend that Respondent repay to W. Edward Cox the sum of $11'.17, and to Douglas A. Thompson and to Lyle J. Fraser each the sum of $67.17. Because there is evidence that a previous fine against a member may be considered by Respondent as grounds for increasing subsequent fines,20 I shall further recommend that Respondent revoke the fines imposed against the said Cox, Thompson, and Fraser on June 19, 1967, and ex- scind all record thereof from its files. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I recommend that Respondent, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) In any manner restraining or coercing the Charging Party or any other employer, as outlined Thompson or Fraser because Cox had been fined $50 once before (for doodling on the cover of Respondent's constitution 3 years earlier) SAN FRANCISCO-OAKLAND MAILERS' UNION 18 in the section hereinabove entitled "The Remedy," in the selection of representatives chosen for the purposes of collective bargaining or the adjustment of grievances. (b) Refraining or refusing to use the means pro- vided by its collective-bargaining agreement for the adjustment of grievances and disputes thereunder and from substituting representatives of its own choosing for those provided for in the collective- bargaining agreement in order to restrain or coerce the employer in the selection of his representatives for the purposes of collective bargaining or the ad- justment of grievances. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Repay to W. Edward Cox the sum of $117.17, and to Douglas A. Thompson and to Lyle J. Fraser each the sum of $67.17, the amounts as- sessed against them as fines. (b) Rescind said fines and completely exscind all record thereof. (c) Post at offices of the Charging Party and those of all employers with whom Respondent has contracts similar to that with the Charging Party as aforestated, the employer willing, as well as at Respondent's meeting place, copies of the attached notice marked "Appendix."21 Copies of said notice, on forms provided by the Regional Director for Re- gion 20, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, in conspicuous places, including all places where notices to mem- bers of Respondent and employees of the Charging Party and other employers are customarily posted and be maintained as posted for the duration of the contract with the Charging Party and other such employers, but in no event for less than 60 con- secutive days from the date of posting. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.22 2i In the event that this Recommended Order 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 In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 22 In the event that this Recommended Order is adopted by the Board after exceptions have been filed, such notification shall also be made to said Regional Director within 20 days from receipt of the Board's Order APPENDIX NOTICE TO ALL MEMBERS Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- 2185 tional Labor Relations Act, as amended, we hereby notify you that: We hereby notify our members and all employees of Northwest Publications, Inc. (San Jose Mercury and News and San Jose Mercury-News), and all other employers with whom we have similar con- tracts containing clauses exempting foremen and assistant foremen from union discipline and dealing with the adjustment of grievances and disputes under the contract and with the persons or bodies designated therein to effect such adjustments, that: WE WILL NOT in any manner restrain or coerce any of the aforesaid employers in the selection of representatives chosen for the pur- poses of collective bargaining and the adjust- ment of grievances or disputes under the con- tract. WE WILL NOT refuse to follow the contract provisions for use of the special standing com- mittee provided for in section 30 of our collec- tive-bargaining agreement with Northwest Publications, Inc. (or in similar sections in agreements with other employers), except as otherwise provided in said agreement or agree- ments. WE WILL NOT cite foremen or assistant foremen before our executive committee to require them to answer for decisions made by them as to the meaning or application of any collective-bargaining agreement to which we are a party, where such agreement contains provisions such as section 30 (special standing committee), section 17 (foremen), or other similar provisions of our collective-bargaining agreement with Northwest Publications, Inc. WE WILL rescind the fines assessed against W. Edward Cox, Douglas A. Thompson, and Lyle J. Fraser on June 19, 1967, and will ex- scind all record therenf from our files. WE WILL pay to the following named persons the amounts set opposite their names, which represent the amount of the aforesaid fines plus costs: W. Edward Cox $117.17 Douglas A. Thompson 67.17 Lyle J. Fraser 67.17 SAN FRANCISCO-OAKLAND MAILERS' UNION No. 18, INTERNATIONAL TYPOGRAPHICAL UNION (Labor Organization) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be 354-126 O-LT - 73 - pt. 2 - 66 2186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD altered , defaced , or covered by any other material . communicate directly with the Board's Regional If members have any question concerning this Office , 450 Golden Gate Avenue, Box 36047, San notice or compliance with its provisions , they may Francisco, California 94102, Telephone 556-0335. Copy with citationCopy as parenthetical citation