Buffalo Typographical Union 9

National Labor Relations Board - Board Decisions

Mar 5, 1973

202 N.L.R.B. 156 (N.L.R.B. 1973)

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buffalo Typographical Union No. 9 affiliated with
International Typographical Union, AFL-CIO
(Buffalo Courier Express Co.) and William R.
Popsie. Case 3-CB-1655
March 5, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On August 18, 1972, Administrative Law Judge'
Benjamin A. Theeman issued the attached Decision
in this proceeding. Thereafter, counsel for General
Counsel filed exceptions and a supporting brief and
Respondent filed a brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge as
modified herein.
The Administrative Law Judge recommended
dismissal of the complaint in its entirety. Inter aha,
he found no violation of the Act in Respondent's
April 5, 1971, refusal to aid William R. Popsie, the
Charging Party, in securing a job, since he found that
Popsie was not an employee within the meaning of
the Act at the time of this refusal and thus could not
be included as an employee in the unit to which
Respondent owed a statutory duty of fair representa-
tion. Counsel for General Counsel has excepted to
this finding of the Administrative Law Judge.2 While
we agree with the Administrative Law Judge's
conclusion that Respondent did not violate Section
8(b)(1)(A) of the Act in its refusal to aid Popsie, we
do so on a different basis than that proposed by the
Administrative Law Judge.3
Respondent has a collective-bargaining contract
with the Buffalo Courier Express to represent the
Courier Express' composing room employees. There
is no union-security clause in that contract nor a
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 In his decision, the Administrative Law Judge also rejected certain
other legal theories advanced by the General Counsel In the absence of
exceptions to these findings, they are adopted pro forma
3 In light of the approach we have taken to this case we need not and do
not rely on the rationale set out by the Administrative Law Judge in his
finding that Respondent did not violate the Act in the manner alleged here
4 Such aid might take the form of making an inquirer aware of known
job opportunities, or giving him the name of the individual to contact at a
location, or sometimes calling the location to inform it of the inquiry and
the inquirer The combined testimony of Respondent's president and its
secretary-treasurer is that this is not the normal procedure since job
provision calling for an exclusive hiring hall and the
Courier Express is thus free to hire employees
without regard to whether they go through Respon-
dent in their search for a job. However, Respondent
does aid, on an informal basis, those who come to it
in search of jobs.4
Popsie, who was a member of Respondent at the
time of the alleged violation, had used Respondent's
services in the past to secure work at various places
including the Courier Express. He last left work at
the Courier Express on May 31, 1970, and by a letter
dated October 15, 1970, he was notified of his
suspension from the International for a failure to pay
his dues.5 Thereafter, on April 5, 1971, when Popsie
sought Respondent's aid in securing work at the
Courier Express, he was told by one of Respondent's
officials that he would have to pay the back dues he
owed before he could go back to work. He did not
pay these dues and did not, on his own, seek
employment at the Courier Express but filed the
instant charge.
Counsel for General Counsel argues that by its
refusal to aid Popsie in his search for employment
Respondent violated Section 8(b)(1)(A) of the Act.
To that end, he cites for support Board decisions in
Chauffeurs Union Local 923, Teamsters (Yellow Cab
Company)6 and Hoisting and Portable Engineers,
Local No. 4 (The Carlson Corporation).7 However, we
find a crucial distinction between those cases and the
instant case, which distinction is dispositive of the
situation now before us.
In both Yellow Cab and Carlson, in situations
where, as here, there was no exclusive hiring system,
the respective unions refused to give aid in locating
jobs to certain members, while giving that aid to
others, because those members had opposed the
reelection of incumbent union officials. The Board
found that the union in each case had violated
Section 8(b)(1)(A) of the Act by this refusal,
notwithstanding the fact that the employees might
have obtained jobs without the union 's assistance. In
each case, however, the Board noted that the reason
for the refusal was that the employees had engaged in
applicants usually contact prospec tive employers themselves without
recourse to Respondent Respondent 's president testified that if asked,
however, Respondent 's officials do help applicants whether or not they are
union members.
5 Popsie, who paid no dues after he left the Courier Express, was
suspended pursuant to art V of Respondent 's laws and art IX, sec 7 of the
International 's bylaws which state that a member shall stand suspended
when 4 months in arrears for local or International dues and assessments
This suspension meant Popsie had no standing in Respondent and no
entitlement to any benefits of membership
6 172 NLRB 2137
7 189 NLRB No 52, enfd 456 F 2d 242 (C A I, 1972)
202 NLRB No. 11
BUFFALO TYPOGRAPHICAL UNION 9
the Section 7 protected activity of opposing the
reelection of incumbent union officials.8 Thus, the
Board found the refusal in each case to be a violation
of the Act since, as stated in Carlson, "the Union is
obligated to offer to all of its members the same
access to and use of those services which it provides
members to facilitate their acquisition of employ-
ment . . . and may not treat certain members
disparately because they have engaged in activities
which are protected by the Act. "9 (Emphasis supplied,
footnote omitted.)
Here, however, the reason for Respondent's refusal
to assist Popsie in obtaining employment was his
suspension from membership for his failure to pay his
Union's lawful dues. Such an act, i.e., the failure to
pay dues, is one which is nowhere protected by
Section 7 of the Act. Thus the failure to aid Popsie
because of this failure to pay dues cannot be a
violation of Section 8(b)(1)(A) in the circumstances
of this case where there is no exclusive hiring
arrangement. We so find.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
8 That such is a protected activity is noted in Falstaff Brewing
Corporation, 128 NLRB 294
9 189 NLRB No 52
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN A. THEEMAN, Trial Examiner : The amended
complaints in this case alleged that Buffalo Typographical
Union No. 9 (Union or Local 9) a subordinate union of
International Typographical Union ( ITU), has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the National
Labor Relations Act, as amended , 29 U.S.C. Sec. 151, et
seq (the Act) by (a) entering into, performing , maintaining,
and giving effect to a system, since August 20, 1969,
i Based on a charge filed April 5, 1971, by William R Popsie, the
Charging Party
2 The Union's answer raised the issue of the agency status for the Union
of Secretary-Treasurer Harry Carroll and Chapel Chairman Phillip
Gardner The question was not otherwise raised nor litigated The General
Counsel points out
a Article 1, section 5 of Respondent's bylaws impose duties on the
secretary-treasurer that make him an agent of Respondent
b With regard to the chapel chairman, in addition to his powers
and duties enumerated in article III of Respondent's general laws he
polices the provisions of the agreement and settles possible violations of
it with the foreman He also polices the provisions of the Union's local
bylaws and constitution and the I T U 's general laws and constitution
and settles violations of them He also negotiated collective-bargaining
agreements and signed the most recent one as a representative of the
Union
On the record as a whole it is found that Carroll and Gardner are agents of
157
whereby the Union interviewed and recommended appli-
cants for employment in the composing room of the
Buffalo Courier Express Co. (Publisher or Courier Express)
and gave preference to members of the Union, or required
applicants to be union members; (b) since on or about
April 5, 1971, failing and refusing to recommend William
R. Popsie for work to the Courier Express, because Popsie
was not then a member of the Union though he was not
required under the Act to be a member of, or pay dues to
the Union; and (c) by discriminating against Popsie and
other employees of the Courier Express to whom it owed a
duty of representation and fair and equal treatment. Local
9 denied it committed any unfair labor practices.2
After due notice, the hearing in this case was held before
me, on February 15 and 16, 1972, in Buffalo, New York.
The General Counsel and the Union were represented by
counsel. Popsie was present in person. All parties were
given full opportunity to participate, adduce evidence,
examine and cross-examine witnesses, and argue orally.
The General Counsel and the Union submitted briefs that
have been fully considered.
Upon the record in the case3 and from my observation
of the witnesses,4 I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF COURIER EXPRESS
Courier Express, a New York corporation, has its main
office and place of business in Buffalo, New York. It is
engaged in the business of publishing a morning and
Sunday newspaper.
In the course of its business operations during the past
year the Courier Express (a) sold and distributed products,
the gross value of which exceeded $200,000, and (b)
received goods valued in excess of $50,000 transported to
its place of business directly from States other than New
York.
It is found that Courier Express is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE UNION
It is found that the Union is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
the Union under Section 2(13) of the Act
3 G C Exh 10 stipulated to be received as a posthearing exhibit has been
received in evidence and so marked No objections having been raised, the
General Counsel 's motion to correct the transcript is granted
4 The testimony of all witnesses has been considered Popsie is found
generally not creditable He was a reluctant and not particularly
straightforward witness In many instances his testimony was vague,
general , contradictory , and not supported by objective evidence Some
disparities will be specifically mentioned In evaluating the testimony of
each witness , demeanor was relied on In addition , inconsistencies and
conflicting evidence were considered The absence of a statement of
resolution of a conflict in specific testimony , or of an analysis of such
testimony, does not mean that such did not occur See Bishop and Malco,
Inc, d/b/a Walker's, 159 NLRB 1159, 1161 Further , to the extent that a
witness is credited only in part . it is done upon the evidentiary rule that it is
not uncommon "to believe some and not all of a witness' testimony"
N L R B v Universal Camera Corporation , 179 F 2d 749, 754 (C A 2)
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Issues
Popsie came to Buffalo from Boston in August 1969. He
reported to union headquarters with proof that he was a
unionjourneyman in good standing. Several times thereaf-
ter the secretary-treasurer of the Union assisted Popsie in
finding temporary employment with newspapers and
commercial plants (lob shops) in Buffalo. At the same
time, Popsie worked in fields not "at the trade," such as, a
men's clothing shop.
In January 1970, Popsie became a regular situation
holder at the Courier Express. In February, he became
delinquent in his dues and remained delinquent for 4
weeks. He testified that because he was delinquent the
Union did not permit him to work for 2 weeks. Then he
paid his dues and went back to work. Later that year,
Popsie became delinquent again. By letter of October 15,
1970, Popsie was informed that he was suspended from the
Union because his dues were in arrears. In February or
March 1971,5 Popsie spoke to the union secretary-treasur-
er, told him he would like to be reinstated, and return to
work at the Courier Express. The secretary-treasurer
referred the matter to the ITU. On April 5, 1971, the
secretary-treasurer informed Popsie that the ITU had said
that he could be reinstated if he paid his dues. Popsie said
he was financially unable to do so but asked for permission
to work and pay his back dues in weekly installments
thereafter. The secretary-treasurer told him the dues would
have to be paid in full first. Popsie did not seek
employment at the Courier Express but filed charges with
the Board upon which the complaint herein issued.
Effective August 20, 1969, the Union and the Courier
Express were parties to a collective-bargaining agreement
which gave rise to the system of employment and
maintenance of employment that the General Counsel
contends is violative of the Act as set forth in the statement
of the case above. To resolve this matter it will be
necessary to determine (1) the actual system that was in
effect for hiring employees at the Courier Express under
the agreement and (2) the events in connection with that
system that lead eventually to Popsie's nonemployment by
the Courier Express. The facts presented herein do not
show that the Union's actions pursuant to the agreement,
or in dealing with Popsie violated the Act as alleged.
B. The Collective-Bargaining Agreement Between
Local 9 and the Courier Express
Local 9 and the Courier Express executed a collective-
bargaining agreement effective August 20, 1969.6 Pertinent
5 There is some conflict about this time but its resolution is not
considered essential
6 The Buffalo Evening News, another Buffalo newspaper was signatory
to the agreement also
7 See Appendix A, Collective Bargaining Agreement (CBA), art IX
8 See Appendix A, CBA, art X
9 See Appendix A, CBA, arts I & 11
10 See Appendix A, CBA, art I
ii See Appendix A, local laws (LL), art III
i2 This gives rise to competition among the regular situation holders
portions of the agreement are set forth in Appendix A and
are specifically referred to from time to time hereafter.
The agreement provided that the general laws of the ITU
not in conflict with law or the agreement shall govern
relations between the parties on conditions not specifically
contained in the agreement.? The agreement also provided
that the Union or a Chapel within the Union may create
rules that do not conflict with the law or the agreement.8
Further, the agreement contained no union-security clause.
C. The Hiring System Under the Contract and at
the Courier Express
At least since August 20, 1969, the employment practices
including the hiring of employees at the composing room
of the Courier Express have been carried out pursuant to
the terms of the agreement, the ITU laws, and the local
laws.
Under the terms of the agreement, Local 9 was the
exclusive bargaining representative of a unit of the
employees performing composing room work .9 Employees
were journeymen and apprentices. Membership or non-
membership in a labor organization was not a factor in the
hiring of employees. 10
Under the Union's local laws the composing room
employees at the Courier Express are designated a
"Chapel" of the Union. One of their number is chosen as
chapel chairman. He presides over chapel meetings and is
recognized as the representative of the Union. His duties
and authorities are set out in the local laws of the Union.ii
These and other factors contained in the local laws are
known to and recognized by the Courier Express.
The employees of the composing room are divided into
two categories; regular situation holders and substitutes or
extras. Regular situation holders are journeymen who work
a 5-day week with 2 consecutive days off (The Courier
Express operates 7 days a week). The nonworking days are
known as "slide days" and vary among the regular
situation holder; i.e., for one worker they may occur on
Monday and Tuesday, another on Friday and Saturday,
and for another on Saturday and Sunday, etc.12 A regular
situation holder who is ill, or has notified the foreman or
chapel chairman that he is not coming in, has the right to
designate his own substitute for the time absent.13 Should
he fail to designate his substitute, the spot is then called a
"dark situation." It is filled by lot from the substitutes or
extras who "show up" 14 for employment: the substitutes
draw pills to see who gets the job.
Substitutes or extras were employed when the number of
regular situation holders was insufficient for the anticipat-
ed night's work, or to fill in for a regular situation holder
who had not shown. Substitutes had priority based on
either of two factors: the date the substitute first worked at
based on priority for the more desirable slide days as they become open See
Appendix A, CBA, art XXII Priority among regular situation holders is
established according to length of service
i3 See Appendix A, ITU laws, art 11. sec 10
i4 Show up or showup time is established by art XXVI of the agreement
and is not included in Appendix A It is a period not exceeding 15 minutes
before starting time that a prospective employee or substitute appeared at
the newspaper and advised the foreman or the chapel chairman he is
available for work
BUFFALO TYPOGRAPHICAL UNION 9
the Courier Express; or if the substitute appeared at the
Courier Express seeking work at "showup" time and did
not work, he was placed on the priority list as of that date
if he so requested it. The priority list was kept posted
conspicuously on the bulletin board of the composing
room.15 It contained the substitute' s name and date of his
priority.
Under ITU law a member "shall stand suspended when
four months in arrears for local or International dues and
assessments ." Such members have no standing in the
Union and are not entitled to benefits.16 The president of
Local 9 testified without contradiction that the Union has
no control over where a man works, and further that when
a suspended member showed for work under the same
circumstances as any other person, his name would have to
be placed on the priority list. However, he also stated that
he had no knowledge that such an event has happened in
the past.
The foreman of the composing room was required to be
a member of the Union. The operation, authority, and
control of the composing room rested exclusively on him
and he was the only individual in the composing room
authorized to hire or fire employees. Application for work
by those who had not yet been placed on the priority list
must first be made to the foreman.17 Each day the foreman
determined the number of situations required to complete
the day's work. This number usually exceeded the number
of regular situation holders or their designated substitutes
and made the hiring of substitutes necessary. The foreman
determined the number to be hired and advised the chapel
chairman. At the same time he would designate the
classification, i.e., linotype operator, compositor, etc.18 The
chapel chairman then hired the necessary employees from
those who appeared at "showup" time in accordance with
their priority as shown on the priority list.19
The usual situation at the Courier Express was that only
union members applied for work.20 As union members the
applicants were either journeymen or apprentices and
qualified for the particular job.21 Should an applicant for a
situation prove incompetent the foreman had the authority
to bar him from further employment for 6 months.22
Usually, the applicants sought temporary employment with
15 Each Local was authorized to established a system of recording
priorities See Appendix A, ITU laws, art V, sec 2 Regular situation
holders had a similar priority list
16 See Appendix A, LL, art V
11 However , the chapel chairman testified that there were occasions
when he put men to work without first checking with the foreman This
occurred when regular situation holders called in and asked that a substitute
be hired in their places The chapel chairman stated that this was done
pursuant to the terms of the agreement His testimony follows
Q Could you explain why it is you do not ask the Foreman, under
those circumstances2
A Because the Foreman has already agreed to the contract to
maintain a minimum number of situations And when a man is not
there to cover the situation, if there is a substitute , he's automatically
placed on it I do not have to go to the Foreman every time and say,
"You want to put this fellow on this dark situation9 " it's just
automatic If there's a sub there, it's filled to maintain the minimum
number of situations
The term of the agreement above referred to was the section of art XXIX
reading as follows
The minimum number of situations needed to get out the regular work
of the paper shall at all times be maintained
18 See Appendix A, CBA, art IV and ITU laws art q
159
the possibility of obtaining a regular situation if one
opened up. Also applicants, in the main , were members of
Local 9 or those bearing a traveler's card from a local of
another area.23 In any event, the applicant came to the
composing room and usually presented himself to the
chapel chairman requesting work. The chairman knew if
work was available either through information from the
foreman, or because of his experience and knowledge of
the going situation . If there was work, the applicant was
introduced to the foreman and identified as a linotypist or
compositor. If there was none, the applicant was told no
work was available and, if he requested, his name was
placed on the priority list as stated above. During the
introduction the foreman did not discuss the applicant's
qualifications. But if the man 's work had not been
identified, the foreman asked if he was a compositor or a
linotypist.
The foreman generally concluded that the person
introduced to him was a member of the ITU. If there was a
job open that day the foreman told the applicant to appear
at showup time to cover the job. Once a man had been
introduced to the foreman and placed on the priority list,
the chapel chairman used him thereafter according to his
priority without further interview by, or meeting with, the
foreman.24 At showup time if more substitutes appeared
than there were jobs, the chapel chairman put the men to
work according to their place on the priority list.
When a regular situation became open, it was filled from
the substitute's priority list. The foreman started the ball
rolling by filling in and signing a memorandum that
authorized the hiring of an employee (or a number of
employees) for a certain shift, or that stated he wished to
do so, specifying the slide days, the type of work, and other
conditions of the particularjob. He gave this memorandum
to the chapel chairman who posted a notice on the bulletin
board listing the job requirements. The substitutes claiming
the jobs wrote their names on the notice.25 The man among
them having the greatest seniority was selected for the job.
The foreman did not need to interview the applicant
because the latter had already been qualified when he was
placed on the list as a journeyman. No regular situation
19 Except as to "dark situations" which were chosen by lot
20 The chapel chairman testified that no nonunion men were on the
substitute priority list because for at least the last 18 months no nonunion
man had shown up He stated further that had a nonunion man shown he
would have been placed on the Iist
21 The journeymen had gone through the apprenticeship program All
apprentices when they first started training were hired by the foremen At
that time they were not required to be union members After I year of
employment, all apprentices became eligible for union membership
22 This has occurred to both union and nonunion employees
23 In the last 18 months, Buffalo was closed to members with travelers'
cards Also in the past 18 months, the commercial shops in Buffalo were
letting employees go These released employees came to the foreman of the
Courier Express seeking work He referred them to the chapel chairman
Some of them were later hired
24 In the past, when a foreman needed an extra he called people who had
previously worked at the Courier Express to come in This had not occurred
"in the last couple of years" because the trade was in a recession
25 Regular situation holders could also apply for thejob in accord with
their priorities This happened if the open situation contained slide days,
hours, or other working conditions better than those then held by the
contending situation holder See Appendix A, CBA, art XXII
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
holder started his job without the knowledge and approval
of the foreman.
As already stated, the usual situation was that union men
applied for work and the foreman concluded that the
applicant was a member of the ITU. There is uncontrovert-
ed testimony in the record that "over the years" the Union
has sent up to 60 nonunion employees to the newspapers
and commercial plants for jobs; that the union office
notified the chapel chairman, the foreman, or the proprie-
tor of the shop that the nonunion applicant was going to
seek employment. Three specific cases were cited where a
nonmember of the ITU was told to see the foreman.26 The
Union sent the men to the Courier Express. The first
occurred in 1966, and the second in the latter part of 1971,
and as to the third no details other than the name were
given.27 In the first two instances, the Union asked that the
man be given an opportunity to prove himself as a
journeyman. In both instances, he was put to work, found
qualified,28 and then placed on the priority list. Eventually,
these two men became union members.
Union officials over the years have received inquiries
from members and nonmembers as to the availability of
work. Most of the inquiries were over the telephone. The
usual procedure was to inform the inquiries that the Union
was not an employment agency; but if the officials had
knowledge they told the inquirer where jobs were available.
Sometimes, they told the inquirer the name of the person to
contact. If a newspaper it was the chapel chairman, or in
the case of job shops it was the foreman or owner of the
establishment. At times, the union officials called the latter
two to advise them that the applicant was on his way. The
president of the Union stated that in performing these
functions the Union was carrying out its obligation under
the agreement to assist employers to find employees.29
D. Popsfe and Local 9
1. Popsie comes to Buffalo in financial
"difficulty"
In August 1969, William R. Popsie, a member in good
standing of the ITU Boston Local, arrived in Buffalo in a
rented automobile. He reported to the office of Local 9,
and spoke to Harold A. Carroll, secretary-treasurer. Popsie
told Carroll that he and his wife had just arrived and
needed money to pay for the rental of the car. Carroll told
26 This was done pursuant to art IV of the agreement See Appendix A
27 The record shows that the 1971 man was introduced to the foreman by
the chapel chairman It contains no information as to the 1966 man
21 Defined to be "competent in the same term as journeyman printers "
29 See Appendix A, CBA, art IJ
30 Carroll kept the bank book Popsie paid Carroll when he had money
Carroll made the payments on the loan except when Popsie did so directly
The loan was paid in full in August 1970 after Popsie sustained a back
injury (see sec 6) His insurance coverage took care of the unpaid balance
of the loans
31 Popsie's employment in Buffalo hereinafter shown consisted of a
series of short periods of employment at newspapers, at commercial printing
shops, and some nonprinting shops In some instances, he worked two jobs
at one time Upon the record as a whole it is found that in procuring
employment in the trade, Popsie solicited aid from Carroll, that Carroll on
occasions contacted chapel chairmen at the newspapers or the foreman or
proprietor of the job shop to determine if work were available, if there was
work Carroll told Popsie to go and apply for the job, or Popsie having
overheard the conversation went without being told
him the Union had no fund for that purpose. He called
Phillip Gardner, chapel chairman at the Courier Express,
to ask him if he could arrange a personal loan of $100 for
Popsie. Gardner agreed to do so and later gave Popsie the
money.
About 3 weeks later, Popsie told Carroll he was in
financial difficulties again. The $100 had not been repaid
and he needed rent money. Carroll mentioned that matter
to Robert M. Russell, president of Local 9. On August 29,
1969, Russell and Carroll arranged a bank loan for Popsie
for $350 by becoming responsible for its repayment. The
installment payments to the bank were made by Popsie
through Carroll.30
2. Popsie gets work at the Courier Express
When Popsie presented himself at Local 9, he held a
traveler's card from Boston . After making the arrange-
ments for the $100 loan, Carroll told Popsie there were
work opportunities in both newspapers. Popsie said he
would like to work for the Buffalo News. Carroll called
The News chapel chairman, told him that Popsie was
qualified and would present himself at showup time the
following morning.31
When Popsie appeared at The News, he spoke to the
chapel chairman who told him about the chapel laws
applicable to The News. The chairman told Popsie he
could work the next 2 days for one of the regulars who was
out sick. Prior to going to work the chairman introduced
Popsie to the foreman and assistant foreman of the
composing room. The latter then assigned Popsie to work
on a Linotype machine.
Popsie worked 2 days at The News but did not like it. On
the third day he showed up at the Courier Express and
spoke to Gardner. The latter welcomed Popsie into the
Chapel at the Courier Express, explained the hiring
procedure and the showup time and told Popsie that he
would go to work for somebody that was sick, or the
equivalent. That night Popsie went to work as a linotype
operator. Gardner introduced Popsie to the foreman before
he started work.32 Also, Popsie 's name was placed on the
priority list of the Courier Express with priority as of that
day.
d2 The General Counsel asserts that Gardner introduced Popsie to the
foreman on this day after Popsie started to work it is found to the contrary
Popsie testified that he spoke to Gardner and then went to work When
asked if he talked to the foreman "prior to starting to do your Imotype
work." he hesitatingly answered "I don't think so, no." On cross-
examination, Popsie testified he was introduced to the foreman "after [he ]
went to work " But when asked what work he had done he admitted he had
done none but had been talking to the chapel chairman "about the
situation" before he was introduced to the foreman . In a similar
contradictory fashion Popsie testified he had filled out no forms that
evening But when specific forms were named he remembered that he had
filled them out "Later on in the evening " Gardner, the chapel
chairman, testified that it was his custom to introduce all new employees to
the foreman before they went to work and that he recalled introducing
Popsie to the foreman the day Popsie first showed up at the Courier See
also Popsie's testimony (fn 34) that when rehired in January 1970 he was
introduced to the foreman by Gardner before going to work This finding is
further supported by Popsie's testimony about his first experience at The
News
BUFFALO TYPOGRAPHICAL UNION 9 161
3. Popsie works in the "job shops"
Popsie worked at the Courser Express for about 2 weeks.
Becoming dissatisfied there, he saw Carroll again and
stated he would like to work in a commercial plant. Carroll
knew of a plant called Holling Press that had an operator
out sick. In Popsie's presence he called them and
confirmed the information. Popsie having overheard the
conversation reported to Holling Press and worked there as
a substitute for about 2 weeks. Popsie desired to continue
working in the commercial plants. He and Carroll went
through the previous process again and Popsie worked for
another commercial plant called Rauch and Stoeckl. After
several weeks at this plant Popsie complained to Carroll
again about the work and indicated that he would like to
return to the Courier Express. Carroll told him that was a
matter of his own "volition."33
4. Popsie becomes a regular situation holder at
Courser Express
Around the end of 1969 or early January 1970, Popsie
started working again as a substitute at the Courser
Express.34
Some time later in January 1970, three regular situations
opened up and were posted at the Courier Express. At that
time, Popsie because of his priority was hired to fill one of
the positions.35
5. February 1970, Popsie did not work because
he was delinquent in dues
By February 27, 1970, Popsie was 4 weeks delinquent in
union dues according to records kept by the chapel
chairman.36 Popsie admitted that he was aware at this time
of article XI I, section 8 of the Union's local laws providing
in part: 37
In all offices where there is a Chapel Chairman, dues
are payable to the Chapel Chairman each week, and
any member refusing or neglecting to pay shall be
considered in bad standing and not entitled to work.
During the 4-week period Chapel Chairman Gardner
had asked Popsie weekly for his dues. Popsie did not pay
them. On the night of February 27, Popsie appeared for
work and held a conversation with Gardner about his
delinquency As a result, he did not work that night. On
February 28, 1970,. he spoke to Carroll twice at the union
office about his delinquency. Whatever the cause, Popsie
did not work the rest of that week nor the following
week.38
The record does not clearly show the conversations that
occurred between Gardner and Popsie and Carroll and
Popsie. Popsie testified that when he showed for work on
February 27 he was told by Gardner that he would have to
pay his dues. "And if I did not pay my dues I wouldn't be
able to work. I didn't have the money at the time. And I
went home that night and was off, I believe for about two
weeks, until I paid my dues."
The following day, according to Popsie, he spoke to
Carroll over the telephone. Carroll told him he "would
have to get up on [his] dues and [he] would have to pay
them before [he] would be allowed to work, again." Then
he saw Carroll at the union office and Carroll told him that
the payment of dues was Popsie's problem; "that they
would not let me go to work until I did, in fact pay my
dues."
Gardner in effect denied that he told Popsie that the
latter wouldn't be able to work. He testified:
Q. Have you ever instructed any person who was
not a member in good standing , to your knowledge, to
go home?
A. No, I have not.
Q. Does that include Mr. William Popsie?
A. That includes Mr. William Popsie.
Carroll testified that he had had conversations with
Popsie about his dues delinquencies . He denied that in any
of those conversations he advised Popsie "that he might
now go back to work" having paid his dues, or indicated to
Popsie that Popsie would be prevented from working "if he
did not pay dues." Carroll did admit that he reminded
Popsie of his obligation not to work stemming from the
nonpayment of dues arising as a member of ITU.
Carroll testified:
Q. Did you, in the course of all your conversations
with Mr. Popsie on any occasion, indicate in any
fashion that you or any other official of the Local
would attempt to prevent him from working if he did
not pay his dues?
A. Not in so many words, no, sir . I would not do
that.
33 In the latter half of 1969, Popsie returned to Boston for about 2 weeks
because of his father's death Popsie also testified that between August 1969
and January 1970 he worked for the Courser Express at least three
additional times as a substitute, that the hirings were according to priority,
or as a result of a "dark situation " Popsie did not specify the dates of
employment , nor the circumstances giving rise to his application at the
newspaper
34 Popsie testified that on his reappearance in January, before going to
work, he was introduced to and spoke to the foreman It appears that this
testimony of Popsie's, whether factual or not, reinforces the Union's
contention that new applicants are first introduced to the foreman In
January 1970, Popsfe had established his priority, the need to meet the
foreman no longer existed, priority substitutes customarily did not first
meet the foreman , and as shown in the preceding footnote , Popsie had been
employed at the Courier Express three times after his original employment
35 According to Popsie, the notice on the bulletin board through which
he got his regular situation with the Courier Express arose in the following
manner The foreman told the chapel chairman that three jobs were open,
specifying the hours and the slide days The chairman drafted a notice
listing the information and the names of the persons on the priority list who
by reason of their priority standing would fill the job Popsie 's name was
one Popsie understood that the job was his unless a person with a higher
priority claimed it
36 A portion of these records was used by the Courier Express for payroll
purposes
37 See Appendix A
35 The chapel chairman's records show that Popsie did not work for the
period from February 27 through March 10, that March II and 12 were his
slide days and he returned to work on March 13 The records also show (1)
that during the first week . Popsie for 4 days exercised the right of a regular
situation holder to have a substitute fill in for him for one night, that on the
fifth day he took a personal holiday for which he was paid under the
agreement , (2) that during the second week, Popsie exercised his right as to
substitutes for 3 days and for the other 2 days reported in sick However, the
dues record for the second week shows him sick for the entire week with no
dues charged to him The foregoing items are included to show that they do
not support Popsie's contention that he stayed home the 2 weeks because
the Union told him he should not work
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you do it in some covert or not clear
fashion?
A. No, only to understand that Mr. Popsie, knew
the law Just as well as I did.
Q. Are you referring to the I.T.U.'s Internal Law?
A. Right.
Q. Is there an obligation on the part of a member
of the ITU not to work when his dues are in arrears?
A. Well, the obligation begins with the individual
member to take care of his own dues and see that they
are paid and that he is in good standing at all time.
That's his personal obligation as a member.
Q. Did you remind him of that obligation as a
member on an occasion?
A. That's right.
Q. Did you ever indicate that you would take steps
to prevent him from working when you reminded him
of his obligation as a member?
A. No, I would not do that. It was not necessary.
Popsie testified further that he knew the chapel chairman
had no authority to fire him and that that authority was
reserved to the foremen. He stated he did not talk to the
foreman about working while delinquent in that he knew
the chapel chairman was the union representative and if
the latter told Popsie he couldn't work, that was a fact and
he couldn't work. Popsie then clarified his position and
stated that he went home because he "was a good Union
member" and "took the advice 39 of [the] Chapel Chairman
who was [his] representative."
As stated, the foregoing testimony does not reveal with
any exactitude the conversation that occurred between
Popsie and Gardner or between Popsie and Carroll. The
conflict in the testimony, the statements by Popsie that
they were his "Union representatives" and that he was
taking "advice," plus his general lack of credibility militate
against a finding that he was told "he couldn't work
because he was behind in his dues" as alleged by the
General Counsel.40 It is thus concluded that neither
Gardner nor Carroll used language equivalent to an order
forbidding Popsie to work.41 The evidence shows that no
threats or other form of coercion by the union representa-
tives occurred during the conversations 42 Further, the
evidence shows that Popsie was aware of article I of the
agreement (see Appendix A) that stated that membership
or nonmembership in the Union shall not be a factor in the
employment of employees. The record contains no
evidence that the Courier Express or its agents or
39 Emphasis supplied
40 A more reasonable conclusion, if one were to be drawn, would be that
Popsie was reminded of his obligation as a union member that a delinquent
member was supposed not to work
41 Testimony of other journeymen employed at Courier Express as well
as the chairman's records showed otherjourneymen delinquent as much as
4 weeks in dues who had not stopped working, nor had any been told that
"if they didn't make payments they would have to stop working" It is also
significant that when Popsie paid his arrears 2 weeks later and started to
work again he did not pay up entirely, but remained I week in arrears See
sec 6 below
41 These 1970 conversations are not alleged in the complaint as
violations of the Act
43 March 1 I and 12 were Popsie's slide days
44 According to Gardner's credited testimony "NOT AT TRADE" is a
dues category in which ITU members are placed who are not working at the
business or trade of the Union Such members have no benefits or priorities
representatives were involved in this episode or were aware
of its occurrence.
6. Popsie decides to leave the Courier Express
After 2 weeks of absence from the job, Popsie paid 3
weeks' dues, leaving I week's dues unpaid. He returned to
work on March 1343 and continued with the Courier
Express until May 12, 1970, when according to Popsie he
hurt his back and went on sick leave. He worked May 29
and 30. On May 30 he told Gardner he wished to be
relieved of his situation with the Courier Express because
he wanted vacation pay; that that was the only way he
could get it, and by resigning he could get out of his
financial difficulties. At the same time he told Gardner he
wished to go "NOT AT TRADE."44 Gardner tried
unsuccessfully to talk him out of these actions. Popsie did
not discuss any of this matter with the foreman.45 Popsie
paid his union dues for May 29 and 30, the 2 days he
worked.46
7. Popsie is suspended from the Union for
nonpayment of dues
Commencing with May 31, 1970, Popsie ceased paying
dues. Gardner informed Carroll of Popsie's determination
to go "NOT AT TRADE" and the records of the Union
show him listed as a member N.A.T. from the beginning of
June 1970.47 Commencing in March 1970, Popsie had been
working for Kleinhans , a men 's clothing store in Buffalo.
He was not working for Kleinhans when he resigned from
the Courier Express because he was out "on a sick
disability." Popsie admitted that when he left the Courier
Express to go, "Not at Trade," he knew that a person
classified "Not at Trade" could not acquire any priority in
a union shop because of the operation of union law; and
further that by so doing he lost his priority at the Courier
Express.
In August 1970 Popsie underwent a back operation.
When he left the hospital he told Carroll and Russell he
was leaving for Boston and would like to speak to them on
his return to Buffalo. On September 27, 1970, he returned
to Buffalo and informed Gardner that his back was still
bothering him.48
By letter dated October 15, 1970, Popsie was informed
but pay dues set by the International in order to maintain union
membership See Appendix A union local laws art X11, sec 3
45 Popsie stated that at Gardner 's request he signed a slip stating he "was
going to resign" and gave it to Gardner Gardner creditably denied the
event occurred and stated further that no such slip was ever required of any
employee at the Courier Express The record shows the Popsie 's resignation
was voluntary and for his own personal reasons
46 According to union law, Popsie was not required to pay local dues
while sick but was required to pay a small monthly amount to the
International
47 The actual date that Popsie went N A T is not essential The facts as
hereinafter set forth show that Popsie was actually N A T when suspended
by the Union and when he later requested reinstatement , that whatever
actions he took to gain union reinstatement were based on the facts that he
had been N A T and he had been suspended for nonpayment of dues
48 Shortly after this date , he resumed his job at Kleinhans , the men's
clothing store
BUFFALO TYPOGRAPHICAL UNION 9 163
that he was suspended from the Union for nonpayment of
dues.49 When Popsie talked to Carroll about the matter,
the latter told him there was nothing he could do but that
Popsie should pay his dues. The letter contained the
following paragraphs:
If reinstatement of continuous membership is to be
accomplished, within the required time allowed under
ITU law, the total amount, plus $25.00 reinstatement
fee, would be due and payable at time of reinstatement.
Each continuing month of delinquency would be
calculated at the N.A.T. Classification.
In accordance with ITU law a suspended member can
be reinstated within 12 months after the date of
suspension, if he has not worked at the printing trade
within the jurisdiction of the local union during the
period of suspension and has not been guilty of
conduct unbecoming a union member, upon the
payment of all dues owing and a reinstatement fee of
$25.00.
Popsie was aware of the contents of this letter. He testified
that he had read the last paragraph; knew that the source
of the letter was ITU law; and felt bound by and agreed
with the ITU law except under circumstances that he
neither defined or stated.
The record contains no further occurrence until Febru-
ary II or 12,197 1, when Popsie again spoke to Carroll.50He
told Carroll he would like to be reinstated and go back to
work at the Courier Express.51 Carroll told him he would
do his best but that the matter would have to be submitted
to the International Union for their approval. First,
however, Popsie would have to pay sick dues of $14 for the
time he was out, and supply a doctor's certificate as well.
About 2 days afterward Popsie sent a $14 money order to
Carroll.
8. Popsie desires to work at Courier Express
again but does not apply for work there
Some time later, Popsie again checked with Carroll. The
latter told him he had not yet received the doctor's
certificate. On March 16, 1971, Carroll called Popsie to tell
him that the matter had been submitted to the Internation-
al but that he had heard nothing yet. On April 5, 1971,
Carroll called Popsie and told him the International had
stated that Popsie would have to pay N.A.T. dues of $208
in addition to the $14 in order to be reinstated. Also that
the International would not consider Popsie sick for as
long as he had claimed. Popsie became angry and hung up
on Carroll. Later that same day, Popsie spoke to Carroll at
the union office.52 He asked Carroll if arrangement could
be made that he go back to work and pay the $208 arrears
49 The letter mentioned that Popsie owed $144 92 "Not at Trade" dues
for August, September, and October
50 There is some question about this date, as testified to by Popsie Other
evidence indicates the conversation took place in March
Si Popsie testified that "it was understood that if I did get reinstated, I
would go back to the Courier Express" The language expressing this
inderstanding does not appear in the record
52 During this conversation, a letter from the international to Local 9
was mentioned At Popsie's request Carroll sent him a copy The letter was
fated March 30, 1971, and stated that Popsie could be classified sick for the
nonths of July through October 1970 but that "he must pay NAT
assessments for the month of suspension, November 1970 through March
1971"
in dues on a weekly basis. According to Popsie, Carroll
told him he would have to pay it in full before he was
allowed to go back to work. Carroll denied that he ever
told Popsie that "he would have to pay up his back dues or
else he could not go to work."53 Carroll did admit that
while talking to Popsie about reinstatement, Popsie
expressed the wish to return to the Courier Express. Carroll
was unable to recall what was said or what he responded.
As with the conversation in May 1970, the substance of
the conversation between Popsie and Carroll is in doubt.
There appears no question that Popsie made known his
desire to work at the Courier Express if he could get
reinstated. There also appears no question based on this
record that if Popsie paid up his delinquencies and work
were available at the Courier Express, he could work there.
It may be inferred that he was told this. It also may be
inferred that in substance he was told or if he was not told
it was fully implied that if he didn't pay up his dues, the
possibilities of his 'working at the Courier Express were
zero. It is so found.
At no time after April 5, 1971, did Popsie apply for work
at the Courier Express. Popsie stated that he did not go to
the Courier Express to look for work because he didn't
think he would get any. He stated that this conclusion was
based on his past experience as a union member in Buffalo
and Boston, that "once the secretary-treasurer says you
can't go to work . . . the chairman . . . will just tell you
the same thing, and you won't go back to work." 54 There is
no evidence that he thereafter applied for any job in the
trade through, or not through, the Union.
The record contains no evidence to show that the Union
told Popsie to apply on his own to Couner Express for a
job or that the Union requested Courier Express (a) not to
hire or (b) to discharge Popsie. Other than contained above
the record contains no evidence to show communication
between the Union and Courier Express or between their
respective representatives or agents with regard to Popsie.
Conclusions
The General Counsel contends that the Union violated
Section 8(b)(2) of the Act (1) when it caused Courier
Express not to employ Popsie in April 1971 based on union
membership considerations by requiring him to pay the
dues owed before he could return to work in circumstances
where the Union could effectively bar his employment
under the existing hiring practices, and (2) because Couner
53 Russell testified he was in his own room adjacent to Carroll's and
overheard some of the conversation between Carroll and Popsie through an
open door He stated he heard no conversation about "Popsie's return to
work," or "a requirement that Mr Popsie pay his dues before he returns to
work " The circumstances under which Russell overheard the conversation,
and his admission that he heard only part of it, give Russell's testimony little
corroborative weight
54 Popsie also stated, "that all my jobs were done through the Union
office by Mr Carroll [who], more or less, allowed me to go to work or
not in any particular job" This statement refers to the previous
conversations with Carroll set forth herein in which Carroll assisted Popsie
in getting work in Buffalo
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Express and the Union had established in practice an
unpnvileged hiring system granting membership privi-
lege;55 and violated Section 8(b)(1)(A) in that the Union
was discriminatory as to unit employees to whom Respon-
dent owes a 9(a) duty of representation and also a duty of
equal treatment when it undertakes to give aid in obtaining
employment.
I find that none of these contentions are supported by
the facts found above. Accordingly, the complaint should
be dismissed in its entirety.
The General Counsel contends that the Union's action in
April 1971 violated the Act because it stemmed from the
system of hiring and employment existent at the Courier
Express prior to that time. Accordingly, the system and its
effect will be discussed first.
1. The system of hiring and employment at the
Courier Express was not shown to grant
membership privilege
The facts giving rise to the system and those showing the
operation of the system have been set out in considerable
detail above. There is no need to repeat them here. As
detailed it is reasonably clear that the General Counsel has
not shown one instance where improper preference has
been given to a union member over a nonunion member or
where the Union has caused or attempted to cause the
Courier Express to discriminate in favor of a union
member as opposed to a nonunion member. Other than the
Popsie episode in March 1970, the General Counsel has
made no reference to any specific instance. And as to the
March 1970 episode, the General Counsel has relied on a
set of facts that have not been established in the record.
The General Counsel erroneously asserts that the March
1970 episode shows that union action effectively prevented
Popsie from working. As found herein, the March 1970
episode shows that Popsie understood that as a union
member he was obligated to pay his dues weekly and
failing that payment he was not entitled to work. By his
own admission, Popsie did not work56 because as a good
union member he accepted the advice of the union
officials57 that he should not do so. The record does not
show why Popsie was chosen in February 1970 to be the
member spoken to about his delinquent dues.58 The fact is
that he was. But in doing so, the record is clear that the
Union did not use pressure, coercion, or threats to cause
Popsie to refrain from working. Nor is there any evidence
to any communication between the Union and Courier
55 See In 59 for the General Counsel's explanation of "unprivileged
hiring system "
56 Whether only for the night of February 27, 1970, or the remainder of
the 2-week period is of no significance to this proceeding
51 Whether it was the advice of Gardner and Carroll or only one of them
is also not significant here
58 As shown above, other union members were also several weeks
delinquent
59 The General Counsel in setting forth the facts of the hiring system has
not shown nor alleged that any acts occurred that were violative of the Act
except for those involving Popsie He argues that the system might be used
to cause discrimination In explaining what he called "an unprivileged
hiring system" the General Counsel stated
As pointed out in the Statement, members of Respondent seeking
employment go to Respondent's representative, the chapel chairman,
who introduces them to the foreman who is also a member of
Express or between Popsie and Courier Express concerning
Popsie's employment at that time . The record clearly shows
that Popsie refrained from work voluntarily. Accordingly,
the March 1970 episode does not demonstrate that the
system of hiring at the Courier Express gave preference to
union members or was in any way improper under the Act.
The General Counsel contends further that the chapel
chairman could carry out the system in such a fashion that
it might be declared discriminatory under the Act.59 But
the Act deals with actions and not speculations or
potentials. Note the language of the Supreme Court in
Local 357, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America [Los Angeles-
Seattle Motor Express] v. N.L.R B., 365 U.S. 667, 676,
where , in considering the effect of a collective -bargaining
agreement, the Court said: "There is no evidence it was in
fact used unlawfully. We cannot assume that a Union
conducts its operations in violation of law or that the
parties to this contract did not intend to adhere to its
express language. Yet we would have to make those
assumptions to agree with the Board that it is reasonable to
infer that the Union will act discriminately." See also
N.L R.B. v. News Syndicate Co., Inc., 365 U.S. 695, 699,
dealing with a contract that vested control over employ-
ment in union foremen and was considered a delegation of
exclusive hiring to the Union, where the Court stated, "we
will not assume that unions and employers will violate the
federal law, favoring discrimination in favor of union
members against the clear command of this Act of
Congress." There is no evidence to show that the chapel
chairman had barred from employment union members
who were delinquent in dues. As already shown union
members including Popsie continued working while delin-
quent. No union rule or provision of the agreement
forbade a delinquent member from working. The record
shows that Popsie was unwilling to test the issue of whether
as a suspended union member the Courier Express would
employ him. He failed to apply for work either to the
chapel chairman or the foreman 60 The failure of Popsie to
apply for employment leaves open the question of whether
the chairman would or would not have placed him on the
priority list or put him to work61 Under these circum-
stances it cannot be considered that the chairman
effectively barred or attempted to bar Popsie's employment
with the Courier Express. Cf. Carpenters Local No. 1440
(The Kroger Company), 186 NLRB No. 146.
Respondent Thus, an individual has, at least, a greater chance to being
hired if he is a member of Respondent because he has special access to
the foreman through the chapel chairman and may be hired directly
through the chapel chairman Indeed, the chapel chairman has never
introduced a nonmember to the foreman and the only evidence of the
foreman 's hiring nonmembers was on two occasions pursuant to
specific requests by officers of Respondent Moreover, even after an
applicant is introduced to the foreman , the foreman merely states how
many jobs are available The applicant must appear at the showup
where it is determined by the chapel chairman who shall be hired
pursuant to the priority list
60 As already stated, he knew he could apply directly to the foreman for
employment
6i Popsie had already qualified as a journeyman by reason of his
previous employment
BUFFALO TYPOGRAPHICAL UNION 9 165
2. The Union did not cause or attempt to cause
Courier Express not to employ Popsie
The General Counsel does not allege that the agreement
between the Union and Courier Express is illegal under the
Act. Nor does the General Counsel allege that the Union
operated an exclusive hiring hall. The General Counsel
contends that through the Union's role in the hiring
process it could and did effectively bar Popsie's return to
the Courier Express and thereby caused the Courier
Express not to employ Popsie.
The short answer to this contention is that it is incorrect.
Popsie testified that he knew in April 1971 that he could
apply for employment to the Courier Express with or
without the consent of the Union even though he was a
suspended member of the Union. He chose not to do so
because of his belief that he would not be employed by
Courier Express. But a violation of the Act is a factual
matter and cannot be based on an individual's speculation
about a future occurrence whether the belief be erroneous
or valid. As shown, there is no evidence that the Union
communicated with Courier Express about Popsie; Courier
Express had no knowledge of the events that were going
on; and Courier Express was never given an opportunity to
refuse to hire Popsie. Under these circumstances, the
Union cannot be found to have initiated action that caused
Courier Express not to hire him.
Nor does the record show that had Popsie gone to
Courier Express he would have been doing a futile thing.
Popsie knew and the record shows that employment at
Courier Express did not depend on union membership.
The record clearly shows that had a nonunion member
"showed up" for employment he was required to be placed
on the priority list in accordance with the priority system.
Courier Express had employed nonunion men in the past
few years. It is true that no nonunion men had shaped
Courier Express within the past 18 months but there is no
showing that their absence was in any way due to the
Union or its actions but rather to the economic conditions
in Buffalo. The record also shows that a number of
employees who were union members continued working
while they were in arrears of dues. Popsie himself went
back to work when he remained 1 week in arrears after
paying 3 out of 4 weeks of arrears. Finally, Popsie and the
General Counsel lay special emphasis on the precedential
value of the March 1970 events. But that episode gives
them no support. It has been found that in March 1970, the
Union did not tell Popsie not to work and to go home.
Popsie voluntarily did not work because he was a good
union member and was adhering to union rules that when
in arrears he was not "entitled to work." Thus, as of April
5, 1971, there is nothing in the record to' show that the
Union had taken any action that would prevent Popsie
from being hired, or any policy of the Courier Express in
effect based on the Union's agreement or on union actions
that would have effectively blocked Popsie's employment.
It seems reasonable under the circumstances to conclude
that had Popsie applied for a job at Courier Express he
would not have done a futile act.
The foregoing shows clearly that the Union did not deal
with Courier Express in any manner with regard to the
hiring or employment of Popsie. It also shows that Courier
Express had no knowledge of Popsie's relationship with the
Union as it affected his employment with the newspaper. It
is now well settled that "in order for union conduct to
violate Section 8(b)(2), there must be some direct approach
to the employer or some conduct aimed at him for the
purpose of causing the employer to discriminate .. .
through his hiring practices or otherwise." Don Glasser, et
al. v. N.L.R.B., 395 F.2d 401, 406 (C.A. 2, 1968), affg. 165
NLRB 798 (1967); Joe Carroll Orchestras, 176 NLRB 365
(1969); United Brotherhood of Carpenters & Joiners of
America, Local Union No. 151 [G. E. Johnson Construction
Co.], 188 NLRB No. 115 (1971), affd. 79 LRRM 2769
(C.A. 10, 1972); Iron Workers Local 433, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO (Riverside Steel Construction), 169
NLRB 667 (1968); Sea-Land Service, Inc., 189 NLRB No.
3; Rupp Equipment, 112 NLRB 1315, 1317.
3. Respondent did not breach its duty of equal
treatment to unit employees
The General Counsel points out that Popsie was
employed at the Courier Express composing room "from
August, 1969 to January, 1970, among otherjobs, and from
January, 1970 to May, 1970 as a permanent employee." As
shown the Union represented a unit of composing room
employees at the Courier. The General Counsel contends
that in April 1971 the Union failed in its duty to Popsie
since it then had "available to it and [was] aware of job
opportunities, [and] cannot lawfully exclude nonmember
unit employees for job opportunities." When the Union did
not "suggest to Popsie that he could seek employment
through the Courier's foreman or other representative," the
Union violated Section 8(b)(1)(A) of the Act.
The short answer to the General Counsel's contention is
that Popsie in April 1971 was not a member of the unit
represented by the Union. Thus, at that time , the Union
owed no duty to him as his bargaining representative.62
Popsie resigned from the Courier Express employ on
May 31. By doing so he not only ceased being the
employee of the newspaper but he also ceased being a
member of the unit represented by the Union. As of that
time forward the Union owed him as a nonunit member no
duty as a collective-bargaining representative. The ques-
tion then arises did he become an employee within the unit
when he applied for reinstatement into the Union and told
Carroll he would like to work for the Courier Express. The
answer to that question is also in the negative.
There is authority for the position that an applicant for
employment to an employer is an "employee" protected by
the Act. Phelps Dodge Corp. v. N.L.R B., 313 U.S. 177. But
the record here does not show that Popsie was such an
"employee." The record shows he did not apply for
employment to an employer. True he wished to be
62 It is unnecessary to deal here with the Union's obligation to Popsie as available may arise as a result of union membership but absent other
a union member , particularly since Popsie was a member suspended for information it does not arise from the fact that the Union is the collective-
failure to pay dues The obligation to inform an inquirer where jobs are bargaining representative of the unit of Courier Express employees
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by the Courier Express but he never applied to
the newspaper for employment. He did make his wishes
known to the Union who did not possess the authority to
hire him. This was known to him, and set forth in the
agreement between the Union and the Courier Express.
The General Counsel, as already stated, asserts that no
exclusive hiring hall arrangement existed. The record does
not show that Courier Express in any way delegated
authority to hire to the Union. Under these circumstances,
application for employment to the Union cannot give rise
to an employer-employee situation vis-a-vis the Courier
Express. It seems reasonable to conclude that absent the
latter possibility, Popsie was not an applicant for employ-
ment in the sense contemplated by the Board and the
Court as set forth in the Phelps Dodge case, supra. More
reasonably the relationship of Popsie when he applied to
the Union is no different than that stated by the Union;
i.e., a worker applying to an employment agency for a job.
As an applicant for employment but not an "employee"
within the meaning of the Act, Popsie cannot be included
as an "employee" within the unit to whom the Union owes
the statutory obligation of fair representation in its
capacity of collective-bargaining representative. Note the
discussion of "employee" in Pittsburgh Plate Glass, 177
NLRB 911, enforcement denied 427 F.2d 936 (C.A. 6,
1970), of f d. 404 U.S. 157.
Upon the foregoing findings of fact and on the record as
a whole, I make the following:
CONCLUSIONS OF LAW
1. Courier Express is, and at all times material herein
has been an employer within the meaning of Section 2(2)
of the Act, and engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The evidence fails to show that the Union has
violated Section 8(b)(1)(A) or 8(b)(2) as alleged in the
complaint.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
hereby issue the following recommended: 63
ORDER
The complaint be, and hereby is, dismissed in its
entirety.
63 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
APPENDIX A
Articles of the Collective Bargaining Agreement
(CBA)
exclusive bargaining representative of all employes covered
by this agreement. The words "employe" and "employes"
when used in this agreement apply to journeymen and
apprentices. Membership or non-membership in a labor
organization shall not be a factor in the hiring of any
journeymen or apprentice or in the tenure or any condition
of his employment or advancement therein.
Article II
JURISDICTION
Jurisdiction of the Union and the appropriate unit for
collective bargaining is defined as including all composing
room work and includes classifications such as: .. .
The Union will at all times use every means within its
power to provide upon request a sufficient number of
employees necessary to perform all work within the
jurisdiction of the Union, as specified by this agreement.
* * s s s
Article IV
EMPLOYMENT AND PRIORITY
The operation, authority and control of each composing
room shall be vested exclusively in the Office through its
representative, the foreman, who shall be a member of the
Union.
Composing room employees shall be employed, receive
orders from, laid off and discharged only by the foreman.
In the absence of the foreman he shall designate who will
be the foreman during his absence; provided, that nothing
in this section shall interfere with instructions being given
by others for the proper execution of a job, when same is
deemed necessary by the foreman.
Application for work by others than those holding
priority rights in the composing room must be made only
to the foreman. Provided, that nothing in this section shall
be construed to conflict with the rights of journeymen to
select competent substitutes without consultation or
approval of the foreman.
In hiring new journeymen employes the foreman may
not exclude as candidates for employment any individuals
who have established competency as journeymen, but must
recognize priority as follows: First: Regular situation
holders. Second: Subject to established hiring practices,
other journeymen who have worked in the composing
room. Third: Individuals concerning whose competency as
journeymen the foremen has no reason for doubt or
persons who have registered for employment after having
passed the examination hereinbefore mentioned.
Article IX
s
C
I. T. U. LAWS
Article I
The Publishers hereby recognize the Union as the
Both parties agree that their respective rights and
obligations under this agreement will have been accorded
by the performance and fulfillment of the terms and
BUFFALO TYPOGRAPHICAL UNION 9
conditions thereof and that the complete obligation to the
other is expressed herein.
The General Laws of the International Typographical
Union in effect at the time of the signing of this agreement,
not in conflict with law or this agreement, shall govern
relations between the parties on conditions not specifically
enumerated herein.
Article X
Nothing contained herein shall be construed to interfere
in any way with the creation or operation of any rules not
in conflict with law or this agreement by any chapel or by
the Union for the conduct of its own affairs.
Article XXII
NEW SHIFTS AND SLIDE DAYS
167
specified periods in severe unemployment emergencies,
with the consent of the Executive Council, may establish
provisions for equitable distribution of subbing among
eligible substitutes.
Article V-Priority
Section 1. Persons considered capable as substitutes by
foremen shall be deemed competent to fill regular
situations , and the substitute oldest in continuous service
shall have prior right in the filling of the first vacancy
Sec. 2. Subordinate unions shall establish a system for
registering and recording priority standing of journeymen
in all chapels, which shall be conspicuously posted or kept
in a place within the chapel accessible to journeymen at all
times. The priority standing of ajourneyman shall stand as
recorded.
Section 1. Employes may claim new shifts, new starting
times and new slide days in accordance with their priority
standing.
Section 2. The foreman shall designate the particular
days or nights constituting a situation. Provided, all
changes of regular slide days or nights of any regular
situation shall be by mutual consent between the foreman
and the employe affected whenever the exigencies of the
case may require. If such changes cannot be arranged by
mutual consent between the foreman and employee
affected, then the men competent to perform the work
must be transferred according to priority standing ... .
* *
Article XXX
**
All office work must be given out in priority order.
Articles of the General Laws of the International
Typographical Union (ITU Laws)
Article II-Foreman
Section 1. None but journeymen or apprentices may be
employed to perform all work within the jurisdiction of the
union. The foreman shall be a journeyman.
Sec. 2. The foreman is the only recognized authority.
Assistants may be designated to direct the work, but only
the foreman may employ and discharge. In filling
vacancies the foreman shall be governed by the provisions
of article v, general laws.
Sec. TO. A foreman shall not designate any particular
day, nor how many days a journeyman shall work in any
one week: Provided, The journeyman must engage a
substitute when absent. Any journeyman covering a
situation is entitled to and may employ in his stead
whenever so disposed any competent journeyman without
consultation or approval of the foreman: Provided, Local
unions may adopt laws requiring the employment of
substitutes in the order of their priority standing; or for
Buffalo Typographical Union Local Laws (LL)
Article III
Chapel Chairmen
Section 1. The Chapel Chairman shall be recognized as
the representative of the Union in the Chapel over which
he presides and it shall be his duty to report to the
President of the local Union any violation of Union law or
provisions of the contract. Failure to perform the duties of
the office shall render a Chapel Chairman liable to such
penalty as the local Union may apply in accordance with
the laws governing charges and trials.
Powers and Duties of Chairman
Sec. 2. The Chairman shall:
Represent the Union in his respective office, enforcing
all Chapel rules and regulations and the laws of this Union,
reporting to the Executive Committee any infringement by
employers or journeymen;
Notify the chairman of the Executive Committee by
written statement , of cases requiring action;
Post notice of meetings;
Refuse permission to work to all members neglecting to
pay dues weekly;
Report to the Membership and Apprentice Committee of
the Union upon the competency of all applicants for
membership working by permission and furnish such
information in writing relating thereto of which he may be
cognizant;
Furnish the Membership and Apprentice Committee of
the Union with date on which apprentices begin work;
Preside at all meetings of the Chapel;
File with the Executive Committee a written report of all
decisions rendered by him during the month which were
appealed to the Chapel, and the action of the Chapel on
the appeal;
Report on blanks provided by the Union, an itemized
account of all money collected on behalf of the Union; the
names (alphabetically arranged ) and amount of earnings;
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
See that all overtime is conspicuously posted; arrears for local or International dues and assessments.
Notify the Secretary-Treasurer of the Union immediately Members suspended for nonpayment of dues shall have no
after his election or appointment to the office of Chair- standing in the organization and shall not be entitled to
man; benefits.
Collect the dues and assessments of the members of the
* * s s
Union employed in his Chapel weekly, turning same over
to the Secretary-Treasurer of the Union and taking proper
receipt for same. Chairman shall post on Chapel bulletin
board a monthly duplicate of dues and assessments paid by
members of the Chapel;
Immediately ascertain from any person obtaining em-
ployment if he holds a card and if it is in proper financial
standing.
Article XII
Section 3. Members not working at the business shall pay
$1.00 monthly as local dues, plus I.T . U. per capital tax and
assessments according to I.T.U. Constitution and General
laws.
Article V Section 8. In all offices where there is a Chapel
Chairman, dues are payable to the Chapel Chairman each
Section 1. Members of this Union or members holding week, and any member refusing or neglecting to pay shall
traveling cards shall stand suspended when four months in be considered in bad standing and not entitled to work.