Toledo Lithographers

National Labor Relations Board - Board Decisions

May 19, 1969

175 N.L.R.B. 1072 (N.L.R.B. 1969)

1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Toledo Locals Nos. 15-P and 272 of the
Lithographers and Photoengravers International
Union , AFL-CIO (The Toledo Blade Company,
Inc.) and James F. Duggan . Cases 8-CB-1229 and
8-CB-1277
May 19, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, BROWN, JENKINS, AND ZAGORIA
On November 18, 1968, Trial Examiner William
F. Scharnikow issued his Decision in the
above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondents filed exceptions to the Trial
Examiner's Decision and a brief in support thereof,'
and the Employer filed a brief in support of the
Trial Examiner's Decision.
The National Labor Relations 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 Trial Examiner's Decision,
the Respondents' exceptions and brief, the
Employer's brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondents , Toledo Locals
Nos. 15 -P and 272 of the Lithographers and
Photoengravers International Union , AFL-CIO,
Toledo , Ohio , their officers , agents, and
representatives, shall take the action set forth in the
Trial Examiner' s Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: Following
the filing and service of a charge by James F. Duggan,
Attorney,' on January 19 and 20, 1968, the Regional
Director issued and served a complaint in Case 8-CB-1229
on April 22, 1968, against the Respondent, Toledo Local
No. 15-P of the Lithographers and Photoengravers
The Respondents have requested oral argument . Because, in our
opinion, the record , the exceptions, and briefs , adequately set forth the
issues and positions of the parties , this request is hereby denied.
International Union, AFL-CIO, herein called Local 15-P.
The complaint alleged that, on various dates from August
9, 1967, to October 23, 1967, inclusive, Local I5-P had
committed unfair labor practices affecting commerce
within the meaning of Sections 8(b)(1)(B) and 2(6) and (7)
of the National Labor Relations Act, as amended, 29
U.S.C. Sec. 151, et seq., herein called the Act. In
substance, the complaint asserted that Local 15-P, as the
contractual and exclusive bargaining representative of
engravers employed by the Toledo Blade Company, Inc.
(a newspaper publisher herein called the Blade), had
restrained and coerced the Blade in the selection and
retention of its representatives for the purposes of
collective bargaining and the adjustment of grievances by
investigating and pressing charges against, and fining, the
Blade's engraving department superintendent and its night
and day foremen, whom the current contract required to
be members of Local l5-P, for the manner in which the
superintendent and foremen, as supervisors and
representatives of the Blade, had interpreted and
administered the Blade's existing bargaining contract with
Local I5-P. On April 30, 1968, Local 15-P filed its answer
to this complaint, denying commission of the unfair labor
practices alleged.
Pursuant to notice to Respondent Local 15-P, hearing
under the complaint and answer in Case 8-CB-1229 began
at Toledo, Ohio on May 23, 1968, before me. At the
beginning of the hearing, it appeared that, as the result of
a merger of several Locals of the International including
Respondent Local 15-P, a new Toledo Local No. 272 had
been formed on April 3, 1968, and had assumed the
membership, assets, obligations , and rights of Local 15-P,
including the administration of Local 15-P's continuing
contract with the Blade. Further hearing was then
adjourned until June 13, 1968, in order to permit the
General Counsel to amend the complaint by joining Local
272 as a Respondent and successor of Respondent Local
15-P and therefore a party in interest.
Before June 13, 1968, however, the charging party filed
a new charge against Local No. 272 in Case 8-CB-1277,
and the Regional Director issued a new complaint on May
28, 1968 against Local No. 272, together with an order
consolidating the two cases for trial before me on June 13,
1968. The new complaint referred to, and incorporated,
the allegations of unfair labor practices assertedly
committed by Local No. 15-P between August 9 and
October 23, 1967, as set forth in the original complaint in
Case 8-CB-1229, and charged Local No. 272 as the
successor of Local No. 15-P with responsibility for
remedying its predecessor's unfair labor practices. After
service of the new charge and the new complaint along
with the order of consolidation, upon Local No. 272 on
May 28, 1968, counsel for Local No. 272, who also
represents Local No. l5-P, filed and served upon the
General Counsel and the Charging Party an answer
denying the allegations of the new complaint in Case
8-CB-1277, and a motion to strike that complaint because
on its face it appeared that the basic charge had not been
filed and served within 6 months after the alleged
commission of the unfair labor practices, as required by
Section 10(b) of the Act.
'During the hearing , Mr. Duggan stated that he is the Attorney for the
Toledo Blade Company, Inc., the employer involved in the present
proceedings, and eventually filed a brief for the Blade as "Employer."
Accordingly, the Blade is hereinafter referred to as the employer and the
Charging Party.
175 NLRB No. 173
TOLEDO LITHOGRAPHERS
Upon this state of the proceedings, hearing was
resumed before me on June 13, 1968, and completed on
June 14, 1968. The General Counsel, the Charging Party,
and Respondent Locals 15-P and 272, appeared by
counsel and were afforded full opportunity to develop
their respective positions, to present and oppose motions,
to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues.
Upon resumption of the hearing on June 13, 1968, and
after hearing arguments on the motion of counsel for
Local 272 to dismiss the new complaint in Case
8-CB-1277, I granted the motion and dismissed that
complaint, granting leave, however, to the General
Counsel to amend the original complaint in Case
8-CB-1229 by incorporating the allegations of the new
complaint with respect to Local No. 272 as the successor
to Local No. 15-P and by joining Local No. 272 in that
status, as a party Respondent in Case 8-CB-1229. The
General Counsel made the suggested motion, and there
being no opposition, I granted it. Similarly without
opposition, counsel for the Respondent orally denied the
allegations of the amended complaint.
Since the close of the hearing, I have received and
considered briefs from the General Counsel and counsel
for the Charging Party and for Respondent Locals 15-P
and 272. I have also received a request for specific
findings and conclusions, of law from counsel for the
Respondents. These requests are granted only to the
extent that they are consistent with the substance of the
findings and conclusions which are set forth below.'
Upon the, entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Toledo Blade Company, Inc., herein sometimes
called the Employer or the Blade, is, and has been at all
times material herein, an Ohio corporation with its
principal office and place of business in Toledo, Ohio,
where it is engaged in publishing a daily and Sunday
newspaper. It holds membership in or subscribes to
various interstate news services, publishes various
syndicated features, advertises various nationally sold
products, and annually derives gross revenues from its
publishing operations in excess of $200,000.
I find that the Employer is 'engaged in a business
affecting commerce within the, meaning of the Act and
that it will effectuate the policies of the Act for the Board
to entertain jurisdiction in the present case.
H. THE RESPONDENT LABOR ORGANIZATIONS INVOLVED
At all times material herein up to and including at least
April 3, '1968, Toledo' Local No. 15-P of the
Lithographers and Photoengravers International Union,
AFL-CIO, was a labor organization within the meaning of
Section 2(5) of the Act and, since 1938, was the exclusive
representative for the purposes of collective bargaining of
all employees employed by the Blade performing
photoengraving and its attendant work. As such exclusive
'Since the hearing, counsel for the Blade and the Respondent Unions
have each filed motions to correct the transcript of hearing in certain
specific respects. Each motion was served on the other parties. Absent any
objection , and upon my own examination of the details of the motions, the
motions are hereby granted.
1073
representative, it has represented these employees of the
Blade under a series of written collective-bargaining
agreements, the most recent of which was effective March
22, 1967, and bears a termination date of March 21, 1969.
Toledo Local No. 272 of the Lithographers and
Photoengravers International Union, AFL-CIO, is also a
labor organization within the meaning of Section 2(5) of
the Act, having been formed as the result of a merger or
combination on April 3, 1968, of the aforesaid Toledo
Local No. 15-P and Local 56-L both of which were
affiliated with the same International. Upon its formation,
Local 272 assumed all the assets and records of Local
15-P, collects dues from members of the former Local
I5-P, and has assumed the liabilities, obligations and
administration of the collective-bargaining agreement in
effect between the Blade and Local 15-P.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The general question presented in this case is whether
Local 15-P's fining the Blade's engraving department
superintendent (Carl J. Aldrich) and its day and night
shift foremen (David Jones and Carl E. Ulrich) as
members of Local 15-P because of their alleged violation
of provisions of the current collective-bargaining contract,
restrained or coerced the Blade in the selection and
retention of its representatives for the purposes of
collective bargaining or the adjustment of grievances, and
therefore constituted an unfair labor practice within the
meaning of Section 8(b)(1)(B) of the Act.' The contract
provisions assertedly violated by the, men (and thus the
basis for their being fined) were the provision of article
12, section 1, that - "Four (4) men shall constitute a
minimum crew," and a provision in Article 17 that the
superintendent should "not [be] required to spend more
than twenty percent (20%) of his time at production
work." The General Counsel and the Blade contend that
any charge by Local 15-P of supervisory violation of
contract should have been handled and resolved, not by
disciplining, the supervisors as union members, but as a
grievance against the Blade under Article 24, of the
contract, "Grievances and Arbitration," which provides
that, "Any dispute under this contract or involving the
interpretation of this contract shall first be taken up
between the shop chairman or shop, committee and the
management," and makes further provision for a second
and third step in the grievance procedures, followed, if
necessary by binding and final arbitration of the dispute.
Other provisions of the contract also are relevant to the
arguments made by the parties concerning the status of
the superintendent and the foremen as union members and
"employees" subject to the contract. Thus, according to
the language of article 4, "All employees (including
superintendents and foremen) performing any of [the
specifically described photo-engraving and attendant] work
shall be covered by the terms of this Contract." And the
immediately, following "Union shop" provisions of article
5 required "all employees of the Company covered by this
agreement" to maintain membership or, within 30 days
after hire or the date of the execution of the contract, to
become and remain members of Local 15-P in good
'Section 8(b) It shall be an unfair labor practice for a labor organization
or its agents - (1) to restrain or,coerce . . (B) an employer in the
selection of his representatives for the purposes of collective bargaining
or the adjustment of grievances.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing as a condition of continuing employment.
Before turning to a consideration of the circumstances
and the manner in which Local 15-P imposed fines upon
the superintendent and the two foremen, a brief
preliminary word about them and the composition of the
Blade's engraving department is in order. During and
since August 1967, the engraving department has consisted
of 16 men. Seven of them, including Superintendent Carl
J. Aldrich and Shift Foreman David Jones, worked on the
day shift and the remaining nine, including Shift Foreman
Carl E. Ulrich, worked on the night shift. The two shift
foremen, Jones and Ulrich, were full-time production
workers, were hourly paid and received overtime
compensation,' and were members of Local 15-P. The
superintendent, Carl Aldrich, was also a member of Local
15-P, was salaried, received no overtime compensation,
and, although he performed some production work
(limited by the contract to 20 percent of his time), he was
in general charge of the work and the men on both shifts
in the engraving department, and, as superintendent, was
recognized in the contract as the "Publisher
Representative."'
There is no dispute about Local 15-P's imposition of
the fines upon the superintendent and the two foremen.
But, there are differences in the positions taken by the
parties concerning the relevant status and the roles of the
three men as representatives of their employer, the Blade.
Were they supervisors? Did the contract require them as
supervisors, rather than merely as production workers, to
be members of Local 15-P? If supervisors, had they
actually been designated by the Blade, and had they
actually been serving, as the Blade's representatives for
the purposes of collective bargaining or the handling of
grievances within the meaning of these terms in Section
8(b)(1) (B) of the Act? Or, in any event, as supervisors,
were they the persons upon whom the Blade should
naturally be entitled to rely and, therefore, to select and
designate as its representatives in negotiations or in
handling grievances whenever the occasion might arise?
Although the Respondents apparently concede that
Superintendent Aldrich was and is a supervisor,' otherwise
they urge a negative answer to each of these four
questions. The General Counsel and the Blade, on the
other hand, ask the Board to answer all four of these
questions in the affirmative. But they also assert that a
negative answer to the second question alone, would not
be fatal to the complaint. For they contend that the mere
de facto union membership of the men upon which Local
15-P relied in imposing the fines , and not necessarily a
contract requirement of membership, would be sufficient
to support a finding that Local 15-P violated Section
8(b)(1)(B) of the Act by imposing the fines.
'Shortly before the hearing in June 1968 (but apparently not in the period
from August through October 1967 when the material events in this case
took place), the foremen were changed to weekly salaries but retained their
rights to overtime compensation.
ARTICLE 17 PUBLISHER REPRESENTATIVE
Section 1 The Superintendent shall be directly responsible to the
Publisher for the conduct of the men under his direction, the quality and
time of delivery of all work, and proper administration of the
department . He shall be the judge of a man 's competency and shall have
the right to hire and discharge all employees under his supervision, and
may work at any branch, when and as his services are required; provided
he is not required to spend more than twenty percent (20%) of his time
at production work.
'In the conclusions which their brief asks the Board to draw from the
evidence , they assert only that Jones and Ulrich "were not supervisors
within the meaning of Sec. 2(11) of the Act "
B. The Fines
From the afternoon of Saturday, August 5, until late in
the afternoon of Monday, August 7, the employees
represented by the Stereotypers Union struck the Blade.
The engraving department employees finished working
their day shift on August 5. But, although Local 15-P did
not participate in the strike, only two engravers reported
for the night shift on Saturday, the fifth, and
Superintendent Aldrich and Night Foreman Ulrich
worked with them on production that night. For the day
shift on Monday, August 7, none of the engravers except
the superintendent and Day Foreman Jones reported, and
these two men alone worked on production that day.
On August 8, Local 15-P informed Superintendent
Aldrich by letter that he was to attend a meeting of its
Executive Board "to give your account of incidents
occurring over the weekend of August 5th-7th at the
Toledo Blade." (G.C, Exh. 5.) After obtaining a
postponement, Aldrich appeared before the Executive
Board on August 22. President Albertson of Local 15-P
told him he was charged with working in a crew of less
than four men and Aldrich objected on the ground that
the matter should be taken up under the grievance
procedure provided by the contract.'
Following Aldrich's appearance before the Executive
Board on August 22, Local 15-P notified Aldrich and
Jones by letters on August 27, and Ulrich by a letter on
September 24, that the Executive Board was filing
"charges against you for violation of contract in the
Toledo Blade Engraving department" and that each of the
men was "directed to attend the Board meeting of
October 6, 1967, at the Craft Hall at 5 p.m. to answer to
these charges." In each letter the charges were set forth at
length.
In the letter to him, Aldrich was charged with the
following contract violations:
1. The Saturday night of August 5th, 1967 crew
consisted of only 3 men instead of 4 as is called for in
the Contract as a minimum crew . The superintendent
acted as the fourth man.
ARTICLE 12
2. During the week of July 31, 1967 to August 5th,
1967, the superintendent worked at production more
than 20% of the week, as is limited by the contract.
ARTICLE 17
3. Monday August 7th, 1967 the day crew consisted of
2 men instead of the minimum crew of 4 men as is
called for in the Contract; the superintendent again
acted as one of the crew.
In the letter to Day Foreman Jones, Local 15-P
charged him with violating Article 12 of the contract in
'The minutes of Local 15-P's Executive Board show that Aldrich in fact
appeared at its meeting on August 22 . President Albertson, on whose
authentication the minutes were admitted in evidence simply to show the
date of Aldrich' s appearance before the Executive Board , did not testify
concerning the substance of the August 22 meeting , but did testify that this
was the only time Aldrich appeared although he was also later notified to
appear on October 6. Aldrich at first testified that he met with the
Executive Board only on October 6 when he objected to Local 15-P's
proceeding against him rather than under the grievance procedure of the
contract . But on cross-examination , Aldrich admitted that his single
appearance before the Executive Board might have been on August 22.
TOLEDO LITHOGRAPHERS
that:
Monday, August 7th , 1967 the day crew consisted of 2
men instead of the minimum crew of 4 men as is called
for in the contract ; the superintendent acted as one of
the crew.
Finally, in the letter to Night Foreman Ulrich, Local
15-P charged him also with violating Article 12 of the
contract in that:
The Saturday night of August 5th, 1967 the crew
consisted of only 3 men instead of 4 as is called for in
the Contract as a minimum crew . The superintendent
acted as the fourth man.
Shortly thereafter , Louis D. Abney, the Blade
production manager, learned of these charges against the
superintendent and the two shift foremen and, on
September 13, 1967, sent the following letter to Richard
Jeffrey , Local 15-P's chapel chairman or, as he is referred
to in the contract , its "shop chairman":
In accordance with Article 24, Section 2, of the current
agreement , you are hereby informed that a dispute
exists. Specifically , your union has brought charges
against the Superintendent and other supervisory
personnel relating to the performance of their
responsibilities as such . Further, the members of your
chapel failed to man the minimum crew on the day shift
on Monday , August 7, 1967.
It is requested that a meeting be scheduled at your
earliest convenience to discuss the above points.
From Local 15-P's minutes, it appears that the
Executive Board considered the charges against Aldrich,
Jones and Ulrich at its meeting on October 6 and that:
"The decision of the-Board was that the men were guilty,
but in view of mitigating circumstances no penalty was
invoked . The men were informed that if it occurs again,
further action will be taken." (G.C. Exh. 13.)
On October 23 however Local 15-P 's secretary mailed
letters to each of the three men telling them merely that:
I am hereby instructed by the body of the Toledo Photo
Engravers Local #15-P to inform you that you were
found guilty, as charged , at their regular meeting of
October 9th, 1967.
It was further decided that you be fined $50 .00, but in
view of the mitigating circumstances it was agreed that
this be' suspended.
Following up his letter of September 13 to Chapel
Chairman Jeffrey, Production Manager Abney of the
Blade made a number of unsuccessful attempts to
persuade Local 15-P 's representatives not to fine the three
men as union members but to take the matter up with the
Blade under the grievance procedure in the contract. The
first of these attempts was made on October 18 in a
meeting with Chapel Chairman Jeffrey with both men
apparently ignorant of the fact that , by that time, the
Executive Board had already decided to fine the men but
to suspend the fines. Abney 's second unsuccessful attempt
was made in conversations with Jeffrey in December 1967
and in the first few days of January 1968 . During these
conversations Abney asked that the fines be rescinded.
When Jeffrey at first told Abney that the Executive Board
refused to rescind the charges and revoke the fines, Abney
told him that the Blade was considering filing unfair labor
practice charges but would withhold them for a few weeks
so that Local 15-P might reconsider its position . Jeffrey
thereupon asked Abney for a statement of the Blade's
position in writing.
1075
Accordingly , on January 5, 1968 , Abney wrote the
following letter to President Albertson of Local 15-P:
This will acknowledge receipt of notification on
December 11, 1967, that the union's executive
committee will not reconsider its action of filing
charges and levying fines against company supervisory
personnel . Mr. Jeffries (sic) informed me today of your
request for a written statement from the company
regarding its position in this matter.
Review of this problem is convincing that the union's
actions in filing such charges, requiring appearance of
company representatives -before the union's executive
board, as well as the levying of fines, even though said
fines were subsequently suspended , are unfair labor
practices. Therefore , it is intended to file charges with
the National Labor Relations Board to that effect.
Mr. Jeffries (sic) was told on January 2, 1968, that
inasmuch as your union may not have viewed its
actions in this light, the company would delay filing the
charges in order to provide a reasonable time for
reconsideration.
Failing to hear from your union that its action with
respect to the supervisory personnel has been nullified,
the company will proceed to file the unfair labor
practice charges.
On January 16, 1968 , Production Manager Abney and
Industrial Relations Director Ed Maher met with
President Albertson and Chapel Chairman Jeffrey of
Local 15-P . Abney spoke for the Blade and Albertson for
Local 15-P and there is really no dispute as to the
substance of what was said . Abney insisted not only that
the matters for which the superintendent and the foremen
had been fined should have been brought up as a
grievance against the Blade but that , since the men were
supervisors , Local 15-P's disciplining them was an
improper attempt to get at the Blade through them, and
both a violation of the contract and an unfair labor
practice . Albertson, on the other hand , argued that Local
15-P had a right under its constitution to discipline any of
its members as an internal union matter , and further
stated that Local 15-P had entertained the charges against
the three men and fined them not because they were
supervisors but only because they were ' union members.
Since there was obviously no possibility of-resolving the
opposing positions , Abney told Albertson that the Blade
would file the unfair labor practice charges which gave
rise to the complaint in the present case.
C. The Status of the Superintendent and the Shift
Foremen as Representatives of the Blade
Carl Aldrich became the Blade's engraving department
superintendent on July 31, 1967, shortly before the events
in the present case. Like his predecessor , Ralph Oliver, he
has unquestionably been a supervisor within the meaning
of Section 2(11) of the Act. As superintendent of the
department, he has had complete authority from the Blade
over the men and work on both shifts. Recognition of the
full extent of his supervisory authority is contained in the
language of article 17 of the Blade's contract with Local
15-P which states that "The Superintendent shall be
directly responsible to the Publisher for the conduct of the
men under his direction, the quality and time of delivery
of all work , and proper administration of the department.
He shall be the judge of a man' s competency and shall
have the right to hire and discharge all employees under
his supervision."
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones and Ulrich were already shift foremen when
Aldrich became superintendent on July 31, 1967. Jones
had been day foreman for at least 10 years and Ulrich
had become night foreman about a year before the
hearing which would have been roughly in May or June
1967. Since Aldrich became superintendent, he has
ordinarily worked on the day shift from Monday to
Friday, inclusive, and has appeared in the department on
the night shift only once or twice a month. As day
foreman, Jones has worked from Tuesday to Saturday,
inclusive.
Generally describing Shift Foremen Jones' and Ulrich's
responsibility and authority, Production Manager Abney
and Aldrich testified that each of the foremen has been
responsible for the flow and the quantity and quality of
the work on his shift. But, as they further testified, Day
Foreman Jones has also substituted for the superintendent
during the latter's absences from the department. As a
result, Jones has regularly had full supervisory authority
on the day shift, rather than merely a subordinate
authority, not only on the superintendent's day off each
week and during his annual 4-week vacation but also
during other periods of the superintendent's absence for
production meetings (averaging 3 or 4 hours a week) and
on various out-of-town trips attending "meetings in the
industry." In view of the substantial periods during which
Day Foreman Jones has regularly substituted for the
superintendent and has been entrusted with unquestionable
general supervisory authority on his shift, I conclude that
Day Foreman Jones has been, and is, a supervisor within
the meaning of the Act.
There remains for consideration the further contention
of the General Counsel and the Blade that not only Night
Foreman Ulrich on his shift but also Jones in the
performance of his duties on the day shift even at such
times when the superintendent was present in the
department, possessed and exercised authority which,
although at a concededly subordinate level, nevertheless
made them both supervisors under the Act. To support
this contention, the General Counsel and the Blade rely
upon evidence given by Superintendent Aldrich,
Production Manager Abney, and ex-Night Foreman Mix
(Ulrich's predecessor and a witness for the Respondent)'
which they assert shows that the two shift foremen in
acquitting themselves of their responsibility for the flow,
quality, and quantity of the work of the men on their
shift, had authority to direct the men's work; to make
effective recommendations concerning such matters as
overtime or discharge (or, if the superintendent were
unavailable and the situation warranted it) to make the
necessary determinations and to take such action
themselves; and, finally, to entertain and adjust grievances
in the interest of the Blade. In some cases, Aldrich's and
Abney's testimony to this effect gave examples of what
they testified were actual instances of the foremen's
exercise of these elements of authority, but otherwise their
testimony was simply to the effect that the foremen had
the authority which, although not recently expressly
conferred or confirmed, was implicit in their general
responsibility for the performance of the department
during their respective shifts.
A fuller consideration of the details of this evidence and
its strength is required in the light of the general situation
in the department which the Respondent Unions contend
shows that the shift foremen were actually not supervisors
but merely working "lead men." Some of the facts relied
'Neither Jones nor Ulrich testified.
upon by the Respondents are not disputed. Thus it is clear
from the evidence, and I find, that both shift foremen
themselves were full-time hourly paid production workers
entitled to overtime compensation as were the other
engravers; that each of the shifts has been composed of
skilled journeymen who have worked for the Blade and
have shown their competence and reliability during years
of service; that each of the journeymen has regularly
worked at only one of the four engraving branches (i.e., as
a photographer, stripper and printer, etcher, or finisher);
that, for the most part the work of the department
routinely progresses through each of these stages without
the necessity for individual assignments or direction of the
work performed; that processing of grievances under the
contract was rare and (so fpr as any of the witnesses
recalled) had never proceeded beyond the first step; and,
finally, that for at least 15 years there had been no
discharge or even a layoff in the department, and
therefore certainly no instance in which a shift foreman
had effectively recommended, much less actually effected,
the discharge or layoff of an engraver.
It is in this setting that the evidence of the shift
foremen's authority and activity on behalf of the Blade
must be appraised. According to Production Manager
Abney's and Superintendent Aldrich's testimony, each
foreman was and is responsible for the quantity, quality,
and flow of the work on his shift, and there is no dispute
as to this general statement of the shift foremen's
responsibility to the Blade. More particularly, according
to Abney, it is the shift foreman who receives notice and
instructions "from outside the department as to what is
going wrong or what should be done, or something
special," and, although most of the work is routine and
the items are handled "on a first-in, first-out" basis by
each journeyman in his particular branch as it progresses
through the department, there are types of work which
have a priority or on which "something special is to be
done," and in addition to his general' accountability for
the quantity and quality of the work on his shift, the
foreman must see to it that the engravers observe these
priority and special treatment requirements. A consistent
description of his general authority and responsibility was
given by ex-Night Foreman Mix whb, as a witness for the
Respondents, testified that, although he did it only
"maybe once a week," he directed the flow of work by
"picking out the detailed stuff to make sure that the
details all got out ahead of the rest" and that, in generally
overseeing the work on the shift, he "proofed it and
checked it out to make sure that it was right."
From this evidence, it appears and I find that
notwithstanding the competency and reliability of the
other journeymen with whom they worked, the shift
foremen have been given a substantial responsibility and
correspondingly broad authority to give orders to the
other journeymen on their respective shifts as to the
sequence and manner in which their work is to be done, to
oversee and check the quantity and quality of their
performance, and thus to direct their work. I further find
that the shift foreman's exercise of this authority is not
simply routine but requires the use of independent
judgment. Because of their possession of this general and
important authority alone, I would find that they are, and
were, supervisors within the meaning of Section 2(11) of
the Act.
With respect to the shift foremen's authority in
connection with discharges, the only direct evidence is
Superintendent Aldrich's testimony that although there
has actually been no discharge of an engraver in at least
TOLEDO LITHOGRAPHERS
15 years, "the discharging of an employee [by a shift
foreman] would be subject to consultation with me if I
would be available . In my absence, they [the shift
foremen] would have the authority to discharge for
cause." Standing alone , this evidence might not be
persuasive of the shift foremen 's authority to recommend
a discharge , much less to effect a discharge himself. But
the evidence also shows , as I have just found , that the
Blade has entrusted to the shift foreman a direct general
responsibility for, and authority over, the engravers' work
performance . In view of this, I credit Superintendent
Aldrich's testimony that each of the shift foremen, Jones
and Ulrich , have had the reasonably incidental authority
of effectively recommending - the discharge , or in the
absence of the superintendent , of actually discharging a
man on his shift for cause , even though it appears that
there has been no occasion for its exercise for the last 15
years. Accordingly, I conclude that in this respect the shift
foremen have also been , and are, supervisors within the
meaning of Section 2(11) of the Act.
Whether, as shift foremen , Jones and Ulrich also have
had authority to recommend or order overtime on their
shift, presents a more perplexing question . Overtime takes
the form either of calling in extra men from another shift
or retaining the men at the end of their shift . In summer,
there is little overtime but in winter , each of the engravers
averages 5 or 6 hours of overtime a week . Overtime is
required , ordinarily , by the volume of advertising or by
weekend, sports-coverage requirements.
Production Manager Abney testified simply that the
shift foreman "decides toward the end of the shift whether
overtime is necessary and hires it if it is." But, although
Superintendent Aldrich at first also testified that the shift
foreman "can schedule overtime" on his own volition, he
further testified that he normally decides, in consultation
with the shift foreman , whether overtime is necessary and
that, in accordance with his decision, the shift foreman
arranges the overtime . This would seem to be the way
overtime is in fact determined and arranged, and is
consistent with the testimony given by ex-Night Foreman
Mix as to the practice and his authority under
Superintendent Oliver , Aldrich ' s predecessor. Upon this
state of the evidence, and in view of the foreman 's general
responsibility and authority on his shift , I find and
conclude that the shift foremen had the additional element
of supervisory authority referred to in Section 2(11) of the
Act of effectively , recommending overtime, although
perhaps not to initiate it.
Because the shift foremen , as well as the
superintendent , have possessed the three particular
elements of supervisory authority thus far discussed, I find
that they were, and are supervisors within the meaning of
Section 2(11) of the Act regardless of whether they have
also actually possessed or exercised the additional
authority of entertaining and adjusting the grievances of
the employees under them. That the superintendent had
this authority is clearly indicated by article 17 of the
contract which refers to him as the "Publisher
Representative" and describes his plenary supervisory
authority and responsibility in the department . But the
General Counsel and the Blade contend (although the
Respondents deny) that the shift foremen , too, had this
additional authority to adjust grievances , not only to
fortify the conclusion that they were supervisors, but to
establish their status as "representatives [of the Blade] for
the purposes of . . . the adjustment of grievances" within
the meaning of Section 8(b)(1)(B ) of the Act.
1077
Both Production Manager Abney and Superintendent
Aldrich testified that although they have apparently never
been expressly informed of it, the shift foremen have had
this authority to settle grievances and have exercised it.
According to Abney, sometimes the men come to the
foremen with their own grievances and sometimes through
the chapel chairman of the Union . Neither of the shift
foremen, Jones or Ulrich, testified. But Abney and
Aldrich testified concerning several grievances which the
foremen reported having settled , apparently since the
events in the present case had occurred. Thus, according
to Abney, Ulrich reported having settled "an issue .. .
involving the assignment of overtime." And, according to
Aldrich's testimony , Jones had reported his settlement of
a question which "arose about . pay in the holiday
week . . . at Christmas and New Years [1967-1968]," and
Ulrich had also reported having settled two questions
which had arisen on the night shift , the first relating to a
newly qualified journeyman 's performance of both phases
of a two-phase operation , and the second, relating to the
sharing of available 6-day work periods by four men
instead of two men as theretofore. In none of these
examples, as thus presented by Abney and Aldrich, does it
appear whether the asserted settlements of grievances
effected by the shift foremen arose under the contract or
involved contact with Local 15-P's chapel chairman
Jeffrey on the day shift or its assistant chapel chairman
Mauder on the night shift.
The Respondent Unions' witnesses on the grievance
issue were Richard Jeffrey , Local 15-P' s chapel chairman
who worked on the day shift with Foreman Jones, and
Nelson Mix, who had been night foreman for 16 years
until he was succeeded by Ulrich in approximately May
1967. Jeffrey testified that he recalled no instance in which
he took a grievance to Day Foreman Jones and Mix
testified that no grievances were presented to him while he
was night foreman. The Respondent Unions rely upon this
testimony that, in practice , the Blade's shift foremen have
not handled or adjusted grievances , as a sufficient
contradiction not only of the few examples of such
grievance handling given in Abney's and Aldrich's
testimony , but also of Abney's and Aldrich's flat
testimony that the foremen did have such authority. '
But the testimony of both Jeffrey and Mix made it
clear that they understood and used the term "grievance"
in a narrow sense. For Jeffrey testified in substance that
he regarded a "grievance" as a complaint from employees
which came to him and which, as Local 15 -P chapel
chairman , he would handle with a' representative of the
Blade , and that it did not include "gripes" which "are not
pertinent to a contract violation or anything of that
nature." Similarly , Mix testified that, "A grievance has to
be a pretty good argument in order to bring up anything
that amounts to anything . . . and would be something
that ... would break the laws ... [of] the Union 's rules.",
Accordingly, in testifying that in their experience no'
"grievances" had been actually presented to and handled
by shift foremen , Jeffrey and Mix were really saying that
the shift foremen had not, in practice , been involved in
handling complaints arising under the contract and
presented by Local 15-P's chapel chairman as
"grievances" under the contract . This did not exclude,
therefore , the possibility that the shift foremen had
actually handled and even settled other
employee-complaints , which Jeffrey described as "gripes."
Indeed , Mix testified that as night foreman he had
actually received and dealt with this type of complaint
from employees and even from the chapel chairman, but
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, by his definition they "were minor matters" and not
"grievances." Furthermore, according to ex-Foreman
Mix, employees had in fact made complaints to him under
the contract and, when they did, "we would get the
contract out, read it, and say all right, you have the
contract, you have to live by it, so that is it."
In his brief, counsel for the Respondent Unions
contends that if the shift foremen have actually adjusted
any grievances, they have been the type of "personal
grievances" presented by individual employees and
referred to by Jeffrey as "gripes," and not "contractual
grievances" which raise questions of contract
interpretation and application and must be disposed of by
Local 15-P and the Blade under the grievance procedures
prescribed by their contract. Noting that this was
apparently the distinction that Jeffrey and Mix had in
mind during their testimony, Respondents' counsel argues
that only the authority to adjust "contractual grievances"
and not the authority to adjust "personal grievances"
would make a supervisor a representative of his employer
"for the purposes of . . . the adjustment of grievances"
within the meaning of Section 8(b)(1)(B) of the Act.
In making this argument, Respondents' counsel points
out that the difference between these two types of
grievances was recognized in 1945 both by the Supreme
Court in the Burley case which arose under the Railway
Labor Act' and by the Court of Appeals for the Fifth
Circuit in the Hughes Tool case under the Wagner Act of
1935.'° But in each of these cases, the Court dealt with the
question of whether the employer's obligation to bargain
exclusively with the statutory representative of his
employees precluded his adjustment of grievances with
individual employees or their representatives other than
the exclusive bargaining representative. And the
conclusion reached by the courts was that only with
respect to "contractual grievances" (to adopt Respondent
counsel's terms) was the employer limited to an
adjustment with the statutory representative, and that in
the cases of "personal grievances," he might make
adjustments with the individual employees presenting
them, provided the statutory representative be given an
opportunity "to attend" when the adjustment was made
and thus to "safeguard" its contract with the employer.
Furthermore, not only did the proviso to Section 9(a) of
the Wagner Act expressly provide (as the court in
Hughes Tool noted)" that, notwithstanding the employer's
obligation to bargain exclusively with a statutory
representative, "any individual employee or group of
employees shall have the right at any time to present
grievances to their employer," but the proviso as amended
by the Taft Hartley Act in 1947 now accepts and
incorporate the substance of the explanatory ruff igg made
by the Court in Hughes Tool by specifically recognizing
and guaranteeing the right of individual. employees to
present and secure adjustments of "grievances" not
affecting the collective-bargaining agreement "without the
intervention of the bargaining representative.""
'Elgin, Joliet and Eastern Railway Co. V. Burley, 325 U.S. 711.
"Hughes Tool Co. v. N.L.R.B., 147 F.2d 69.
` I ibid. at p. 72.
"The proviso to Sec . 9(a), as it is now worded , reads as follows:
Provided, That any individual employee or a group of employees shall
have the right at any time to present grievances to their employer and to
have such grievances adjusted, without the intervention of the bargaining
representative , as long as the adjustment is not inconsistent with the
terms of a collective -bargaining contract or agreement then in effect:
Provided further, that the bargaining representative has been given
opportunity to be present at such adjustment.
In view of this, it appears that, notwithstanding the
continuing significance of the distinction between
"personal grievances" and "contractual grievances" as it
relates to an employer's obligation to bargain collectively
only with the exclusive bargaining representative, the
distinction has no relevance to the construction of the
broad term "grievances" as used not only in the proviso
of Section 9(a) of the Act but also in Sections 2(11) and
8(b)(1)(B), and that in all three sections of the Act it must
be uniformly construed as including both "personal
grievances" and "contractual grievances." I therefore
reject the Respondent's contention and conclude that if
shift foremen had authority to adjust, or did in fact at
times adjust, either "personal grievances" or "contractual
grievances," they were representatives of the Blade "for
the purposes of . . . the adjustment of grievances" within
the meaning of Section 8(b)(l)(B) of the Act.
Since neither of the shift foremen, Jones or Ulrich, was
called as a witness, we do not have the benefit of their
testimony concerning their authority or its exercise.
Furthermore, although Production Manager Abney and
Superintendent Aldrich testified that Jones and Ulrich
have had authority from the Blade to settle grievances,
they were unable to testify that the shift foremen had ever
been expressly told they had this authority, and the
examples they gave of its exercise by the two shift
foremen were few and occurred after the events in the
present case which have made the foremen's authority an
important issue in the present case.
Despite these weaknesses in the General Counsel's
chain of evidence, the evidence otherwise indicates that
Jones and Ulrich did have, and did exercise, authority to
settle or adjust grievances within the meaning of Section
8(b)(1)(B) of the Act. Thus, a combination of factors
supplied by the record supports Abney's and Aldrich's
generalized testimony that the foremen did have such
authority: Day Foreman Jones was the superintendent's
regular substitute and therefore apparently
second-in-charge of the department. Night Foreman
Ulrich was the only supervisor in the department at
nights. Both shift foremen, being the only supervisors in
constant contact with the men and having general
authority to direct their work as "foremen," were the ones
to whom the men were likely to make their complaints in
the first instance . And, for these reasons , authority to
handle and, if possible, to settle, such complaints would
logically be incidental to the shift foremen's authority to
direct the men's work. Finally, upon the previously
summarized testimony of Chapel Chairman Jeffrey and
ex-Foreman Mix as witnesses for the Respondents, I find
that the Blade's shift foremen have actually handled not
only "personal grievances" presented by employees, but
also, as appears from Mix's testimony particularly, minor
"contractual grievances." Upon consideration of this
evidence, I conclude, in agreement with the General
Counsel and the Blade and contrary to the Respondents'
denial, that Jones and Ulrich, as shift foremen had
authority to handle and settle grievances throughout the
critical period in the present case from August 1967 to the
present time, and have therefore been representatives of
the Blade "for the purposes of . . . the adjustment of
grievances" within the meaning of Section 8(b)(1)(B) of
the Act.
But even had Jones and Ulrich not been actually
designated and serving the Blade as such grievance
See S . Rep. No . 105 on S. 1126, 80th Cong ., 1st Sess. p. 24 (Legislative
History of the Labor Management Relations Act, 1947, page 430).
TOLEDO LITHOGRAPHERS
representatives , I - would- find that, in view of their status
and roles as foremen with the substantial supervisory
authority to direct the work of the men on their shifts,
they were such natural and potential representatives of the
Blade for the handling and settlement of grievances
because of their day-to-day supervision and contacts with
the employees- in matters that spawn grievances , that the
Blade should be entitled to rely upon them, and therefore
to select them, as its representatives in handling and
settling grievances whenever the occasion might arise. For
Section 8(b)(l)(B) forbids a union's restraining and
coercing "an- employer in the selection of his
representatives for the purposes of collective bargaining or
the adjustment of grievances" and this protection of the
employer's right to "selection" must be construed as
protection not only the - employer's continuing reliance
upon supervisors already selected, but his right at any
time to make and rely: upon a selection of representatives
from an uncoerced group of such supervisors whose
loyalty to him has not been prejudiced and who he
believes would be peculiarly qualified to represent him in
the handling of grievances.
A similar observation and finding should be made with
respect to Superintendent -Aldrich 's prospective role as one
of the likely bargaining representatives for the Blade when
the present contract expires and the Blade undertakes
negotiations with Local 272, as the successor to Local
15-P. The evidence shows not only (as I have already
found) that Superintendent Aldrich has been and is
presently at least one of the Blade's representatives for the
purposes of adjusting grievances , but also that his
predecessor , Oliver, participated as one of the Blade's
bargaining representatives when the present contract with
Local 15-P was negotiated . Production Manager Abney
testified that it was- the Blade 's intention to designate
Aldrich as a bargaining representative when the next
contract should be negotiated. But this , of course, does
not constitute a present designation or selection of Aldrich
as collective-bargaining representative . Nevertheless,
Aldrich as departmental superintendent , is apparently a
natural and likely bargaining representative for the Blade
on any future contract which may be negotiated and,
under Section 8 (b)(l)(B) of the Act, the right of the Blade
to designate him as a bargaining representative should be
protected against any -action by the Union which would
prejudice or interfere with his complete loyalty to the
Blade.
D. Summary and Ultimate Conclusions
In sum , it has been found upon the evidence:
(1) That - in October 1967, Local 15-P fined
Superintendent Aldrich and Shift Foremen Jones and
Ulrich as members of Local 15-P for alleged contract
violations in the course of performing their work for the
Blade on August 5 and 7, 1967.
(2) That, although -Local 15-P suspended the fines, its
minutes show that the three men were "informed that if it
[any contractual violation] occurs again , further action
will be taken." -
(3) That Aldrich, • Jones, and Ulrich had such
substantial supervisory authority over the men in the
engraving department , including the authority to adjust
grievances in the interest of the Blade, as to constitute
them supervisors within the meaning of Section 2(11) of
the Act, and "representatives [of their employer] for the
purposes of . . . the adjustment of grievances" within the
meaning of Section 8(b)(1)(R) of the Act.
1079
(4) That, in any event, at the times of their alleged
contractual violations and of the imposition of Local
15-P's fines, Superintendent Aldrich clearly had authority
from the Blade to adjust grievances , and, even if it were
found that neither Jones nor Ulrich then had or exercised
such authority, their substantial supervisory authority and
their day-to-day contact with , and supervision of the
employees under them, made them natural choices for
selection by the Blade as its representatives for the
purposes of adjusting grievances, as occasion might arise.
(5) And that , even though Superintendent Aldrich may
not as yet have been selected by the Blade as one of its
contractual bargaining representatives since there have
been no contract negotiations during the time he has been
superintendent , he, like his predecessor who actually
served as a bargaining representative during the last
negotiations , must be regarded as a potential and natural
negotiator whom the Blade should be free to select for
future negotiations.
In making these findings and reaching these
conclusions, I have rejected the contention of counsel for
the Respondent Unions that the superintendent and the
shift foremen were not supervisors nor bargaining or
grievance representatives for the Blade . But in his brief,
Respondent Unions ' counsel presents two additional broad
arguments against drawing the ultimate conclusion urged
by the General Counsel and the Blade that Local 15-P's
fining the three men prejudiced their loyalty in
representing the Blade , narrowed the Blade 's selection of
effective representatives , and thus restrained and coerced
the Blade in its selection of bargaining or grievance
representatives in violation of Section 8(b)(1)(B) of the
Act. The essence of these arguments is that the Blade
consented to Local 15-P's disciplining its superintendent
and foremen as production workers and members of Local
15-P.
One of the broad arguments thus presented by
Respondents' counsel , in the course of which he refers to
and relies upon the Supreme Court's decision in
Allis-Chalmers case," is that Local 15 -P's fining Aldrich,
Jones , and Ulrich as union members was justified by
Local 15 -P's right to regulate and control its internal
affairs including its relationship with its members and the
terms and conditions of their membership ; that , since the
three men, although perhaps supervisors , were also
production workers covered by the union-security clause
of the contract , the Blade had consented to their being
union members with all the implied incidents of their
membership; and, therefore , that the Blade cannot claim it
was being "restrained and coerced" when Local 15-P fined
them . The second broad argument made by Respondents'
counsel is that the contract between Local 15-P and the
Blade required Aldrich, Jones, and Ulrich to be union
members , not as supervisors , but as production workers;
and that the Blade 's area for the selection of grievance
and bargaining representatives was not unreasonably nor
unduly restricted by Local 15-P 's fining the three men
since the Blade might have withdrawn them from
production or employed other nonworking supervisors and
grievance representatives who would not have had to be
union members nor therefore subject to union discipline.
Upon the following consideration of the pertinent
decisions and their application to the facts found on the
evidence in the present case, I reject these arguments of
the Respondents.
"N L R.B v. Allis-Chalmers Manufacturing Co, 388 U S. 175
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Up to the present time, decisions in only three cases
have considered the question of whether a union may
discipline supervisors who handle grievances for their
employer and who are also members of the union, and in
each instance the conclusion has been that such action by
the union would be an unfair labor practice within the
meaning of Section 8(b)(1)(B) of the Act. In the first of
these cases, the Haverhill Gazette case, the Court of
Appeals for the First Circuit held in agreement with the
Board and was affirmed by a divided Supreme Court"
that a strike for a clause requiring such supervisors to be
members of the union was an unfair labor practice within
the meaning of Section 8(b)(1)(B) since "by insisting that
the foremen be union members, the unions were
restraining and coercing the employers in the selection of
their representatives for grievance adjustment purposes.
Not only would the clause as proposed by the unions limit
the employers' choice of foremen to union members, it
would also give the unions power to force the discharge or
demotion of a foreman by expelling him from the union." 'S
In the second case, the Portland Stereotypers case," - the
Board, expressly relying upon the opinion of the court of
appeals in the Haverhill Gazette case, again found a
strike for union foremen "who concededly handled
grievances" was a violation of Section 8(b)(I) (B), and in
doing so affirmed the general principle that, "An
employer must be free of pressure in choosing his
representative for collective bargaining."
The Board's decision in the third case, the San
Francisco-Oakland Mailers case," was issued within the
last few weeks, after the hearing and filing of briefs in the
present case although counsel was aware of, and had
referred me to, Trial Examiner Hemingway's decision
which the Board later affirmed. The Trial Examiner had
found a violation of Section 8(b)(1)(B) in the union
respondent's first citing a newspaper publisher's mail
room foreman and two assistant foremen who handled
grievances but who performed some work and were
required by contract to be union members, for alleged
violations of the union 's contract with the publisher, and
then fining the three men when they failed to appear
before the union 's executive committee in response to the
citation. The Board affirmed the Trial Examiner's
decision, stating that:tt
We are in agreement with the Trial Examiner that
the citation of Cox, Fraser, and Thompson was not, as
contended by Respondent, solely for investigative
purposes. We find rather, that Respondent'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 persons responsive or subservient to
Respondent' s will. In enacting Section 8(b)(1)(B)
Congress sought to prevent the very evil involved herein
- union interference 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 pressure upon the Charging
"International Typographical Union Local 38, AFL-CIO (Haverhill
Gazette) v. N.L.R.B., 278 F.2d 6 modifying 123 NLRB 806, affd. by
divided court 365 U.S. 705.
"Ibid., 278 F.2d at 12.
"Portland Stereotypers, etc., Union. No. 48 (Journal Publishing Co. and
Oregonian Publishing Co.). 137 NLRB 782, 787.
"San Fancisco-Oakland Mailers' Union No. 18, International
Typographical Union (Northwest Publications, Inc.) 172 NLRB No. 252.
'Footnotes in the following quotation from the Board's decision have
been omitted.
Party by indirect rather than direct means, cannot alter
the ultimate fact that pressure was exerted here for the
purpose of interfering with the Charging Party's control
over its representatives. Realistically, 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 Act.
Respondent contends that Section 8(b)(1)(B) of the
Act does not reach internal disciplinary measures
against union members and cites N.L.R.B. v.
Allis-Chalmers Manufacturing Co. et al., 388 U.S. 175,
in support of its position. In our opinion , the Supreme
Court's 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 acquisition or retention of
membership shall not be impaired. However, that
proviso is limited to Section 8(b)(1)(A) of the Act only
and is not a part of Section 8(b)(1)(B). In addition,
only legitimate internal union affairs are protected
under Allis-Chalmers. 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 action - was
deemed by the Supreme Court a legitimate area for
union concern in the circumstances involved. In
contrast, in the present case, the relationship 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 importance, used as a convenient and, it
would seem , powerful tool to affect the employer-union
relationship, i.e. to compel the Employer's foremen to
take pro-union positions in interpreting the
collective-bargaining agreement. The purpose and effect
of Respondent's conduct literally and directly
contravened the statutory policy of allowing the
Employer an unimpeded choice of representatives for
collective bargaining and the settlement of grievances.
In our view it fell outside the legitimate internal
interests of the Union, and, as found by the Trial
Examiner, constituted a violation of Section 8(b)(1)(B)
of the Act.
The Board's decision in the San Francisco Mailers case,
underscores the apparent import of Section 8( b)(l)(B) as a
general prohibition of a union's disciplining
supervisor-members for their conduct in the course of
representing the interests of their employers. As the Board
held, such discipline by a union, even though the employer
may have consented to the compulsory union membership
of the supervisor under a union -security clause, is an
unwarranted "interference with [the] employer's control
over its own representatives," and deprives the employer
of the undivided loyalty of the supervisor to which it is
entitled. If, therefore, the supervisor has actually been
designated as the employer' s bargaining or grievance
representative (as the Board and the Trial Examiner found
in the San Francisco Mailers' case, and I have also found
in the present case), the Unions' discipline of the
supervisor is unquestionably a restraint upon, and
TOLEDO LITHOGRAPHERS 1081
coercion of the employer's continuing its selection of, and
reliance upon , the supervisor as its bargaining and
grievance representative and an unfair labor practice
within the meaning of Section 8 (b)(1)(B) of the Act. But
even if, as I have also indicated the Board might find in
the present case , the disciplined supervisor merely has
such present substantial other supervisory authority and
regular contact with the employees under him as to make
him a natural , possible, future choice of the employer to
handle its grievances as occasion might arise , his discipline
by the union restricts the employer's freedom in making
that choice and future selection as bargaining or grievance
representative and would , in accordance with the language
of Section 8(b)(1)(B) and the Board 's reasoning in San
Francisco Mailers , also-constitute a restraint and coercion
of the employer in "the selection of his representatives for
the purposes of collective bargaining or the adjustment of
grievances ." Further-more, in either of these cases, it is
apparent from the language of Section 8(b)(1)(B) and
from the general reasoning of the Board in San Francisco
Mailers , that it is not an essential element of the unfair
labor practices that the disciplined supervisor be a
compelled union member under a union -security clause
obtained by the Union . It is enough that his actual
membership has colorably subjected him to the offensive
discipline and its effect upon his employer 's right to rely
upon him as a supervisor.
Finally , for reasons which appear from the Board's
decision in San Francisco Mailers , there is no merit in the
various arguments made by the Respondent Unions in the
present case and already summarized . Thus the Board
specifically answered and rejected the argument based
upon Allis-Chalmers, that a union ' s discipline of a
supervisor-member for this conduct in representing the
interest of his employer is a legitimate regulation by the
union of its internal affairs . But more than this, the
Board' s conclusion of unfair labor practice upon the
similar basic facts it considered in San Francisco Mailers,
is squarely inconsistent with, and therefore amounts to a
rejection of the validity of any possible arguments (such as
are made by the present Respondents) that an employer,
by consenting to compulsory union membership for its
working supervisors , not only in fact impliedly consents to
their being disciplined as union members for acts
committed by them in the course of their work as
supervisors and in the interest of the employer , but also to
their being rendered ineffectual and unreliable as
bargaining or grievance representatives for the employer.
Upon the foregoing consideration of the evidence and
the applicable legal principles , I conclude , in agreement
with the General Counsel and the Blade and contrary to
the arguments presented by the Respondent Unions, that,
by fining Superintendent Aldrich and Foremen Jones and
Ulrich, the Respondent Local 15-P restrained and coerced
the Blade in its selection of representatives for the
purposes of collective bargaining and the adjustment of
grievances , and thereby committed unfair labor practices
within the meaning of Section 8 (b)(1)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, Toledo Local 15-P of
the Lithographers and .Photoengravers International
Union AFL-CIO, which have been set forth in section III,
above, occurring in connection with the operations of The
Toledo Blade Company, Inc., described in section I,
above, have a close, relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It has been found that in October 1967, the
Respondent, Toledo Local No. 15-P of the Lithographers
and Photoengravers International Union, AFL-CIO, a
labor organization, committed unfair labor practices
within the meaning of Section 8(b)(1)(B) of the Act by
fining Superintendent Carl J. Aldrich and Shift Foremen
David Jones and Carl E. Ulrich who were employed by
The Toledo Blade Company, Inc., with whom Respondent
Local No. 15-P had a contract covering the engraving
department employees of the Blade. It has also been
found that the Respondent, Toledo Local No. 272 of the
Lithographers and Photoengravers International Union,
AFL-CIO, also a labor organization, was formed as the
result of a merger or combination of the aforesaid Local
No. 15-P and Local No. 56-L of the same International,
and that the Respondent Local No. 272 has assumed all
the assets and records of Respondent Local No. 15-P,
collects dues from the members of Respondent Local No.
15-P, and has assumed the liabilities, obligations, and
administration of the collective-bargaining agreement in
effect between the Toledo Blade and Local No. 15-P. I
conclude that Respondent Local No. 272 is presently the
successor of Respondent Local No. 15-P and that, to
effectuate the policies of the Act, it should, as such
successor, be required to join Respondent Local No. 15-P
in remedying the unfair labor practices committed by
Local No. 15-P.
Accordingly, it is recommended that Respondent Local
No. 15-P and its successor, Respondent Local No. 272,
and their respective officers, agents, and possible further
successors, shall cease and desist from the type of unfair
labor practice committed by the Respondent Local No.
15-P, and shall take certain affirmative action designed to
remedy the unfair labor practices and thus to effectuate
the policies of the Act, including (1) expunging from their
records any record or other evidence in their files of the
proceedings of Respondent Local No. 15-P in which
Aldrich, Jones and Ulrich were fined by Local No. 15-P
in October 1967; (2) advising the said Aldrich, Jones,
Ulrich, and the Toledo Blade in writing of their aforesaid
action; and (3) executing and posting the notice hereto
attached as an "Appendix."
CONCLUSIONS OF LAW
1. The Respondent, Toledo Local No. 15-P of the
Lithographers and Photoengravers International Union,
AFL-CIO and its successor, the Respondent Toledo Local
No. 272 of the same International (herein referred to
respectively as Local No. 15-P and Local No. 272) have
at all material times been labor organizations within the
meaning of the Act.
2. The Toledo Blade Company, Inc., herein called the
Blade, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) and Section 8(b)(1)(B) of
the Act.
3. Carl J. Aldrich, David Jones, and Carl E. Ulrich
have at all times material herein been supervisors within
the meaning of Section 2(11) of the Act and
representatives of the Blade for the purposes of collective
bargaining or the adjustment of grievances within the
meaning of Section 8(b)(1)(B) of the Act.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid Aldrich, Jones, and Ulrich have also
been supervisors employed by the Blade with such
substantial supervisory authority and regular contact with
the employees working under them , as to be such
potential and likely future representatives of the Blade for
the purposes of collective bargaining or the adjustment of
grievances , that the Blade is entitled to rely upon, and
select them , as such collective bargaining or grievance
representatives , within the meaning of Section 8(b)(1)(B)
of the Act.
5. At all material times up to April 3, 1968, the said
Aldrich, Jones and Ulrich were members of the
Respondent Local No. 15-P, and since then have been and
are members of Respondent Local No. 272.
6. By fining the said Aldrich , Jones, and Ulrich in
October 1967 as members of Respondent Local No. 15-P,
for conduct in the performance of their work for the
Blade but allegedly in violation of Local 15-P's contract
with the Blade, Respondent Local 15-P has committed
unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in Case No.
8-CB-1229, it is recommended that the Respondent
Toledo Local No. 15-P of the Lithographers and
Photoengravers International Union, AFL-CIO, and its
successor , the Respondent Local No. 272 of the
Lithographers and Photoengravers International Union,
AFL-CIO, and their respective officers, agents, and
possible further successors , shall:
1. Cease and desist from fining or otherwise disciplining
Carl J. Aldrich, David Jones , or Carl E. Ulrich, or any
other supervisor of the Toledo Blade Company, Inc., as a
member of either Respondent , for the conduct of any such
member in the performance of his work in the employ of
the Blade, while such member is the selected
representative of the Blade as its representative for the
purposes of collective bargaining or the adjustment of
grievances , or possesses such substantial supervisory
authority in the direction of the work of employees under
him, that he is a likely and natural future selection by the
Blade as collective-bargaining or grievance representative.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Expunge all records or other evidence in their files,
of Respondent Local No. 15-P's proceedings in which
Carl J. Aldrich, David Jones , and Carl E . Ulrich were
fined by Respondent Local 15-P in October 1967.
(b) Advise the said Aldrich, Jones, and Ulrich, and the
Blade in writing that they have taken the aforesaid action
in compliance with paragraph 2(a), above , and that they
will cease and desist from the action forbidden in
paragraph 1 of this Order.
(c) Post at their business offices, meeting halls , and all
other places where notices to members are customarily
posted , copies of the attached notice marked "Appendix." "
"In the event that this Recommended Order is adopted by the Board,
Copies of said notice , to be provided by the Regional
Director for Region 8, shall , after being duly signed by
representatives of the Respondents , be posted by the
Respondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members and employees are customarily posted.
Reasonable steps shall be taken by the Respondents to
insure that said notices are not altered , defaced, or
covered by any other material.
(d) Furnish the Regional Director for Region 8, signed
copies of said notice for posting by The Toledo Blade
Company, Inc., if willing , in places where notices to
employees are customarily posted. Copies of said notices,
to be furnished by the Regional Director shall, after being
signed by the Respondents , be forthwith returned to the
Regional Director for disposition by him.
(e) Notify the Regional Director for Region 8, in
writing , within 20 days from the date of the receipt of this
Decision , what steps they have taken to comply herewith."
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
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 8 , in writing , within 10 days from the date of this Order, what
steps Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS AND EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify all our
members and the employees of The Toledo Blade
Company, Inc., that:
WE WILL NOT fine or otherwise discipline
Superintendent Carl J. Aldrich, Foreman David Jones,
or Foreman Carl E. Ulrich, or any other supervisor of
the Toledo Blade , as a member of our Unions, for the
conduct of any such member in the performance of his
work in the employ of the Blade while such member is
the selected representative of the Blade as its
representative for the purposes of collective bargaining
or the adjustment of grievances , or possesses such
substantial supervisory authority in the direction of the
work of employees under him , that he is a likely and
natural future selection by the Blade as collective
bargaining or grievance representative.
WE WILL expunge all records or other evidence in
our files of the proceedings in which Superintendent
Carl J. Aldrich, Foreman David Jones and Foreman
TOLEDO LITHOGRAPHERS 1083
Carl E . Ulrich were fined by Local No. 15-p in
October 1967.
TOLEDO LOCAL No. 272
OF THE LITHOGRAPHERS
AND PHOTOENGRAVERS
INTERNATIONAL UNION,
AFL-CIO
(Labor Organization)
(Representative) (Title)
TOLEDO LOCAL No. 15-P
OF THE LITHOGRAPHERS
AND PHOTOENGRAVERS
INTERNATIONAL UNION,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
Dated By
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 1695 Federal
Office Building, 1240 E . Ninth Street , Cleveland, Ohio
44199 , Telephone 216-522-3738.