Columbia Typographical Union No. 101

National Labor Relations Board - Board Decisions

Dec 12, 1973

207 N.L.R.B. 831 (N.L.R.B. 1973)

COLUMBIA TYPOGRAPHICAL UNION NO. 101
Columbia Typographical Union No. 101 , international
Typographical Union of North America , AFL-CIO
and The Washington Post Company. Case
5-CB-1243
December 12, 1973
DECISION AND ORDER
On November 29, 1972, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel filed a
brief, the Charging Party filed cross-exceptions to the
Administrative Law Judge's findings and a brief in
support of his Decision, and Respondent filed a brief
in reply to the Charging Party's brief.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and finds merit in certain of Respondent's
exceptions. Accordingly, the Board has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge only to the extent consist-
ent herewith.
The complaint alleges, in substance, that certain
employees entitled "journeymen-designated supervi-
sors" are supervisors empowered to adjust grievances
within the meaning of the National Labor Relations
Act, as amended, and that Respondent violated
Section 8(b)(1)(B) of the Act by threatening to bring
union charges or take other reprisals against those
supervisors, all of whom are members of Respon-
dent, because they performed acts within the scope
of their supervisory authority and in order to
frustrate and prevent them from exercising that
authority in the future. Respondent denies that it has
violated the Act. It further contends that this
proceeding is governed by Collyer,l Houston Chroni-
cle,2 and related cases and, therefore, the Board
should defer rendering a decision in this proceeding
because the issues presented herein are capable of
being determined through the detailed grievance and
arbitration procedure contained in the parties'
collective-bargaining agreement.
The Administrative Law Judge found that Houston
Chronicle is "substantially distinguishable" from the
instant proceeding, denied Respondent's motion to
dismiss the complaint under that authority, and
found the Respondent violated Section 8(b)(1)(B) of
the Act in each of the six incidents alleged as a
violation. We do not agree.
The underlying dispute herein concerns the extent
and degree of authority and control that is vested in
the foreman and journeymen-designated supervisor
1 Collyer Insulated Wire, A Gulf and Western System Co., 192 NLRB 837.
2 Houston Mailers Union No. 36 affiliated with International Mailers Union
831
by virtue of the parties' collective-bargaining agree-
ment. Section 20-a of that agreement states, "the
operation. authority and control of [the work area]
shall be vested exclusively in . . . the foreman ... .
No foreman shall be subject to fine, discipline or
expulsion by the union for any act in the perform-
ances of his duties as foreman." Section 20-b thereof
provides that assistant foremen ". . . shall have the
full authority of the foreman in supervising and
directing" shifts, and that ". . . Journeymen may be
designated as supervisors by the foreman . . . [but]
the authority of such foreman and [journeymen-
designated supervisors] shall be limited by the terms
of the agreement." It is within the context of the
prohibition contained in section 20-a and the
limitations imposed by section 20-b that the charges
of union threats and other reprisals are based.
Section 5 of the bargaining agreement, however,
contains a grievance procedure which culminates in
binding arbitration and covers, inter alia, ". . . any
controversies involving interpretation or application
of the agreement...."
This is precisely the type of situation which
persuaded us in Houston Chronicle, supra, "to
encourage parties to flesh out the bare bones of their
statutory obligations with specific ground rules
appropriate to their specific circumstances." Al-
though the facts herein may differ from those in
Houston Chronicle, the legal principles to which those
facts are applicable are identical. Those principles
moreover, have not been rejected or repudiated by
Respondent's original reluctance to resolve the
dispute through the grievance-arbitration procedure.
Respondent not only assumed that position before it
had the benefit of our decision in Houston Chronicle,
but the record clearly shows that Respondent has
changed its position and now evinces a willingness to
honor its agreement and settle the dispute by such
voluntary means . Moreover, we shall retain jurisdic-
tion herein to insure that those means are utilized. In
view of the foregoing, we are satisfied that the
dispute is susceptible of resolution through the
mutually agreed-upon grievance machinery, that it
will be laid to rest by an arbitration's resolution
thereof, and that deferral is appropriate in this
proceeding.
Our dissenting colleagues assert that a prior
arbitration between these parties shows that arbitra-
tion is not effective in resolving this kind of dispute.
We do not agree.
The prior arbitration involved an employee griev-
ance wherein the employee challenged the authority
of supervisors, such as those involved here, to direct
(Houston Chronicle Publishing Company), 199 NLRB 804.
207 NLRB No. 123
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in their work. The arbitrator there upheld
the supervisors'-authority.
That arbitration has presumably laid to rest the
matter of contractual or "shop practice" limitations
on supervisory authority. It, of course, did not
involve, or lay to rest, the issue here presented, i.e.,
the application of section 20 to actions taken by the
Union and its stewards with respect to such supervi-
sors. The precedent of the prior arbitration may be of
assistance in resolving that issue , insofar as it may
clarify the authority the parties, by their agreement
and the practices which have grown up under it, have
been held to have intended such supervisors to have.
But it dealt not at all with the contractual restrictions
which section 20 imposes on union conduct with
respect to such supervisors; nor, of course, did it deal
with the proper application of that section to the
facts of the instant case.
We also think our colleagues evince a lack of
understanding of the arbitral forum when they assert
that such a tribunal has no authority to impose
sanctions for conduct which is contractually prohib-
ited or to render decisions which have "prospective
meaning or future application."
In arbitration proceedings the issues presented to
the arbitrator are twofold: (1) whether there has been
a violation of the agreement and, if so, (2) what the
appropriate remedy shall be. Arbitrators have proven
to be both expert and effective in devising appropri-
ate remedies when violations are found. Their
authority to devise remedies is unquestioned, and
indeed is a broad, equitable power. In discharge
cases, for example, arbitrators, when a discharge is
found to have been prohibited by the contract, may
require backpay as damages for past action and
reinstatement as an equitable remedy for the futur-
e-all in the same manner as this Board has acted in
discharges found to be prohibited by this Act, rather
than by a contract.
We know of no authority for the proposition
advanced by our colleagues that an arbitrator does
not have the authority to enter awards prohibiting
the repetition, in the future, of conduct found to be
contractually improper. A review of labor arbitra-
tors' decision indicates that quite the contrary is true.
We note, - for example, United Parcel Service, Inc.,
41 LA 560 (Arbitrator Burton B. Turkus, 1967), in
which the award included an order in the nature of
an injunction against a contractually prohibited
strike, and an order to distribute to employees those
portions of the arbitrator's opinion delineating the
type of union and employee conduct which should
not take place in the future. See also the award of
arbitrator Morton Singer in Pinehaven Sanitarium,
Inc., 49 LA 991 (1967), which included both a
$125,000 damage award and a cease-and-desist order
with respect to future conduct. It is true that
arbitration has become such a well-accepted means
of resolving disputes as to both past and future
conduct that arbitrators do not need, with any
frequency , to include cease-and-desist orders because
the parties normally voluntarily comply with deci-
sions which settle interpretative disputes which have
arisen between them . See, to this effect, the com-
ments of Arbitrator Lewis M. Gill in Budd Co., 34
LA 176 (1959); but as Arbitrator Gill recognized in
that decision, an arbitrator has the authority to enter
such an order when the circumstances require it.
Accordingly, we find, contrary to the Administra-
tive Law Judge, that the principles set forth in the
Houston Chronicle, and the Collyer decisions are not
distinguishable in principle from the instant proceed-
ing, that the parties' collective-bargaining agreement
deals specifically with this area of dispute and
commits the parties to a procedure for resolving such
a dispute during the period of the contract, and that
the contractually agreed-upon procedure should be
afforded full opportunity to function.3 We further
find, in view of the language in the parties'
agreement, and for the reasons set forth in Collyer,
Houston Chronicle, and related cases, that the parties
have entered into a voluntary adjustment procedure
covering this type of dispute. Therefore, we shall
dismiss the complaint and defer to the contractual
grievance-arbitration procedure in accordance with
the principles of Collyer.
We shall, however, retain jurisdiction over this
proceeding solely for the purpose of entertaining
appropriate and timely motions for further consider-
ation on a proper showing that (a) the dispute has
not, with reasonable promptness after the issuance of
this Decision and Order, either been resolved by
amicable settlement in the grievance procedure or
submitted promptly to arbitration, or (b) the griev-
ance or arbitration procedures have not been fair or
regular or have reached a result which is repugnant
to the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the complaint herein be,
and it hereby is, dismissed, provided, however, that
jurisdiction of this proceeding is hereby retained for
the limited purposes stated herein.
MEMBERS FANNING and JENKINs, dissenting:
Previously, we were of the opinion, and expressed
3 See Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235,
242(1970)
COLUMBIA TYPOGRAPHICAL UNION NO. 101 833
our concern, that the ever widening reach of the
"fundamental soundness" of Collyer would embrace,
and eliminate, only Section 8(a) from the Act. Our
concern, however, has proved to be both unheeded
and unduly modest, for continued adherence to, and
expansion of, the Collyer rule also has resulted in the
exclusion of much of Section 8(b) from the Act.4 This
erosion of substantive rights, moreover, has been
accompanied by a dilution of the evidentiary proof
initially required to support the Collyer rule. Origi-
nally, the unfair labor practice charges giving rise to
the dispute were required to be "clearly" encom-
passed by the parties' collective-bargaining agreement
to warrant deferral to arbitration.5 Now, it is enough
if the issue is "arguably" encompassed therein.6 Our
past dissents have noted the ever increasing destruc-
tion of the statutory protection of employees through
the device of "incorporating the provisions of the Act
into the contract and then appending an arbitration
clause . . . [to j avoid the sanctions of a Board
determination." 7 In the instant proceeding, as well as
in three companion cases,8 our colleagues again have
extended the Collyer rule by deferring to arbitration
matters which are not even arguably subject to the
bargaining agreement or the grievance procedure
contained therein.
The underlying dispute herein does not involve
either the supervisory status of Scott, Mears, or
Calkins, or the contractual limitations imposed upon
their supervisory status, for credited, substantial
evidence clearly establishes those factors. The real
dispute is evidenced by the six separate occasions in
which Respondent's steward threatened Supervisors
Mears and Calkins (journeymen designated as
supervisors) and Foreman Scott, all of whom were
members of Respondent, with union-imposed disci-
plinary measures because they performed the rou-
tine, basic supervisory functions of assigning work,
or directed employees to work rather than loaf
during working time, or sought to have work time
utilized for work purposes rather than for union
purposes. Each attempt to perform a supervisory
function was followed by bald threats to haul the
supervisory offenders before Respondent's executive
committee for the declared purpose of "straightening
out problems" which Respondent never defined.
Respondent further claimed that it sought to bring
4 The thrust of Collyer now covers charges alleging violations of Section
8(aXi), (2), (3), and (5) and Section 8(b)(I)(A), 8(b)(1)(B), 8(b)(2), and
8(b)(3).
5 Joseph T. Ryerson & Sons, Inc., 199 NLRB 461.
6 Urban N. Tatmat, Inc., 197 NLRB 1222; Southwestern Bell Telephone
Company, 198 NLRB, No. 6.
7 Houston Chronicle supra Joseph T. Ryerson & Sons, Inc., supra Medical
Manor. Inc., d/b/a Community Convalescent Hospital and Community
Convalescent, East, 199 NLRB 840.
a Columbia Typographical Union No 101, international Union of North
America, AFL-CIO (The Washington Post Company), 207 NLRB No. 124;
Mears and Calkins before its executive committee
because they drank on the job and unduly harassed
their supervisees while under the influence of
alcohol. Yet, the record is void of any evidence
indicating that their alleged drinking was involved in
any of the incidents in which they were threatened.
In addition, even assuming that the supervisory and
management representative status of Calkins and
Mears is questionable, there are no such issues with
regard to Foreman Scott, who unsuccessfully at-
tempted to dissuade the steward from unnecessarily
interrupting production. The steward met that futile
attempt with a threat to bring Scott before Respon-
dent's executive committee, bluntly warned 60-year
old Scott that by exercising his supervisory authority
he risked the loss of his pension rights, and further
threatened that Respondent was "going to make
another Mr. Culpepper out of" him.9
The Administrative Law Judge found on the basis
of the foregoing credited, substantive evidence that
Respondent sought to discipline these supervisors
because they exercised their supervisory responsibili-
ties in a manner inimicable to Respondent's desires,
and that it sought to settle this dispute on its terms by
the application of its internal rules and procedures
which have no bearing whatsoever on any of the
terms of the collective-bargaining agreement. We
agree that this is the dispute in controversy. This is
the dispute which Respondent acknowledged at the
hearing ". . . cannot go through the grievance
procedure of the contract because no arbitrator has
any authority over directing the supervisors of an
employer as to what they can 'do or cannot do,"
thereby explicitly disavowing the resort to arbitration
which our colleagues have ordered.10 Further indica-
tion of the emptiness of the Collyer rule, is supplied
by the record in the companion Washington Post
case, 207 NLRB No. 124, which shows that the same
basic dispute involving the same employer, the same
Respondent, and the same collective-bargaining
agreement as involved herein, already has been
determined by arbitration. There, the arbitrator ruled
that supervisors such as Mears and Calkins had the
authority to direct employees in their work, and
dismissed the grievance. Respondent, however, con-
tested the arbitrator's award in the District Court for
Columbia Typographical Union No. 101, International Union of North
America, AFL-CIO (Byron S. Adams PrintinglInc .), 207 NLRB No. 125,
Newspaper Pressman 's Union No. 6, International Printing and Assistants
Union of North America, AFL-CIO (The Washington Post Company), 207
NLRB No. 126
9 Foreman Scott was fully aware at that time that Culpepper, a foreman
of a printing Company and a member of Respondent, was fined $6,000 and
expelled from Respondent . See Byron S. Adams Printing Inc., 207 NLRB
No. 125, a companion case
10 We note in this regard that Respondent did not file any grievances
pertaining to the foregoing six incidents.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the District of Columbia, which refused to set aside
the award.
Our colleagues have conceded that, by upholding
the authority of supervisors to direct employees in
their work, the foregoing award has "laid to rest the
matter of contractual . . . limitations on supervisory
authority." Yet, they maintain that that arbitration
proceeding neither involved nor laid to rest "the
contractual restrictions which section 20 imposes on
union conduct with respect to such supervisors; nor
... deal with the proper application of that section
to the facts of the instant case." In short and in
reality, to argue that the contract requires an
interpretation of whether, and to what extent, the
Union may impose sanctions on supervisors for
performing supervisory duties which they admittedly
are contractually authorized to perform is to make
mockery of the clear meaning of the intent of both
the contract and the award.
The majority also has charged us with a "lack of
understanding of the arbitral forum" because we
allegedly "assert that such a tribunal has no authority
to impose sanctions for conduct which is contractual-
ly prohibited . . . ." Contrary to the majority, we
have not now, and never have before, made such an
assertion. Moreover, we readily concede such author-
ity. Our differences with the majority are, and always
have been, restricted to (1) the efficacy of arbitration
relative to statutory violations; and (2) our refusal to
concede that arbitral authority conferred by contract
ipso facto is converted into statutory authority to
redress statutory wrongs. These differences, as well
as our view that arbitral decisions involving statutory
wrongs have no prospective meaning or future
application, in no way have been negated by our
colleagues' thorough, but hardly relevant, recitation
of arbitral-imposed sanctions for contractual viola-
tions.
Prior arbitration has therefore failed to provide the
Employer with the protection to which 8(b)(1)(B)
entitles him. This failure makes it particularly ironic
that the majority is again forcing the statutory
violation, involving issues which are ripe for a
determination, before a tribunal which cannot either
impose sanctions for violations requiring appropriate
remedial action, or render decisions which have
prospective meaning or future application. Here it is
clear that arbitration is not an adequate substitute
for Board processes in accomplishing the purposes
and policies of the Act.
Accordingly, for the reasons stated herein, and in
our dissents in Collyer, Houston Chronicle, and
related cases, we would decide the unfair labor
practice issue litigated in this proceeding.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in the above-entitled proceeding was held on September
25, 26, 27, and 28, 1972, at Washington, D.C., on
complaint of the General Counsel against Columbia
Typographical Union No. 101, International Typographi-
cal Union of North America, AFL-CIO, herein called the
Respondent or the Union. The charge was filed on April
10, 1972, and the complaint issued on July 18, 1972. The
issue of the case is whether the Respondent restrained and
coerced the Washington Post Company, herein called the
Company, in violation of Section 8(b)(1)(B) of the Act. A
brief was filed by the Charging Party.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Company has its principal office and place of
business in Washington, D.C., where it is engaged in
printing and publishing a daily morning newspaper and a
Sunday edition called "The Washington Post." During the
preceding 12 months, a representative period, in the course
of its business it realized gross revenues in excess of
$200,000, and subscribed to various interstate news
services , published nationally syndicated features and
advertised goods and products sold in interstate commerce.
I find that the Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and that it
will effectuate the policies of the Act to exercise jurisdic-
tion herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that Columbia Typographical Union No. 101,
International Typographical Union of North America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue of the Case
This case arose in the composing room of the Washing-
ton Post, where, during the lobster shift-from 1 a.m. to 9
a.m.-about 150 employees work, many of them craftsmen
in the trade. On this shift there is a shift foreman, an
assistant shift foreman, and about 10 supervisors each in
charge of a department; all these supervisors, as well as all
other employees, are required by the collective-bargaining
agreement in effect to be members of the Respondent
Union. Robert Snook is the chief steward on the shift, here
called chapel chairman, and he has an assistant steward;
both these men are paid full journeymen scale, do no work
at all, and concern themselves only with union affairs
during the shift inside the composing room.
The complaint alleges that the Union Respondent,
through its steward, threatened three management repre-
COLUMBIA TYPOGRAPHICAL UNION NO. 101 835
sentatives with internal union discipline if they did not stop
ordering employees to work during their paid working
hours. There were-six such incidents, all within the period
January through April 1972, and each involved a different
individual workman but always the one steward-Snook.
In four incidents the supervisors spoke directly to the
employees involved, telling them to work instead of idling;
in the other two the supervisors addressed themselves to
Snook, because the steward at the time was talking to the
employee, who in consequence was not working. But like
the other four incidents the message voiced by the
supervisors was that the employee should return to his
work. In each case the steward-sometimes indirectly and
sometimes quite clearly-told the supervisor in question he
would be curbed by internal union pressure, statements
which, in each instance according to the complaint,
constituted violations of Section 8(b)(1)(B) chargeable to
the Respondent.
There are a number of defenses. Two are factual, directly
resolved by the evidence. Are the three supervisors the kind
of management representatives with which Section
8(b)(1)(B) is concerned? Do the words the steward used
amount to- threats of union discipline? A third defense
argues that the supervisors' directives to the employees to
go to work had nothing to do with what the steward was
talking about when he told them they would be dealt with
by the. Respondent's president, or its executive board; it is
contended that even if Snook did threaten union fine or
expulsion it was to cure other defects in the supervisors,
failings on their part unrelated to their managerial
functions. And if there is a question of law in this case it is
whether an employer has a right to have its supervisors see
that employees do the work they are paid to do, free from
coercion by the Union directed against the supervisors.'
All three of the only real questions that need answering-
-managerial status or not, threat or no threat, and
interference with management or internal union affairs-
-will easily be understood, and answered, if the undisput-
ed testimony of what happened in each of the six incidents
be considered first.
1. Botsford and Relton
On April 2, Botsford and Relton left their work and went
to the showroom, a sort of lounge, where there was a coffee
wagon; they had coffee. Whitney Calkins, their supervisor,
saw them, thought they had been there long enough, and
told them to return to work; they did. Shortly Snook,
according to Calkins, went to him and said "stop pushing
the people around and telling them to go to work." Snook
testified that he saw the men having coffee and noticed
Calkins speaking to them. He added the two men reported
to him "they didn't think that the supervisor should harass
them in that manner." Asked had he mentioned the Union
in his talk, with Calkins then, Snook said: "I don't
remember the exact words,, but I probably could've in the
same spirit try to say that we're going to go and get this
matter straightened out with our president and executive
board committee... .
2. -John' Egbert
On February 15 Egbert was working on something when
Calkins, his supervisor also, told him to discontinue that
and complete something else instead because he was
familiar with it. Egbert complained to-Snook that he was
being harassed, and Snook took the matter up with
Gordon Scott, the shift foreman, and highest in authority
for the Company on the shift. There came a quick
conference in the foreman's office-Scott and Calkins for
the Company and Snook and Walsh, his assistant steward,
for the Union. The story of Calkins' directions to Egbert
was told and Snook then said, according to Scott, "the
hierarchy . . . were pushing and harassing the men and
that it looked like that the only way to take care of
supervisors on the lobster shift would be to take them to
Wisconsin Avenue." Again, Snook's version is not differ-
ent. "Expressing our - frustration of trying to get to the
problems that we were faced with solved, we would like
them to go and talk to the president and/or the executive
committee and see if we could get the problems that we
were having straightened out."
3. William Galleher
Galleher, a paste up man, one' evening late in March left
his department and went to the steward's office to look at
the vacation schedule list in the interests of planning his
own vacation. Calkins saw him, thought he had been there
long enough, and tapped him on the shoulder. Galleher
recalled the supervisor asked when was he going back to
work. In a short time Snook spoke to Calkins, and again, as
Calkins testified, the steward said to "stop pushing the
people . . . we were trying to break the Union; and that we
will take you to union headquarters ` and not to ignore any
letters that were sent to me from the Local Union... .
`We will take you to union headquarters' That I didn't have
the right to push the people around; I didn't have the right
to supervise the work area." From Snook's testimony: "I
went to talk to Mr. Calkins about the incident and told him
that the man had a right to talk to his chairman a
reasonable length of time... I didn't think that the
supervisors should come into my office and harass them
during that reasonable length of time. Mr. Calkins' attitude
was that he had a right to do this . . . and I probably did,
during this conversation, say something about going to
Wisconsin Avenue in the spirit of trying to get things
solved."
i In the cross -examination of Raymond Hall, the union president, it
proved impossible to draw from hum a coherent response to the plain
question, asked repeatedly, whether the supervisor has authority to tell a
man to go back to work . Finally.
Q. Suppose they [the supervisors 1 take a proofreader who is not
proofreading and assign him to another job because he's not doing
anything? -
A. Supervisors don't have that authority, no.
The steward, Snook, was equally evasive when asked again and again
whether supervisors have authority to tell a man to work instead of idling.
Finally:
Q. In your view, does a supervisor have a right, if an individual is
supposed to be working and he is not there , does the supervisor have
the right to order that man to go back to work, yes or no?
A. In my opinion, as a Union man and asa Union representative
on the lobster shift and under what our contract says, no.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Lois Rzepka
On March 25, Lois Rzepka, a tape puncher, was "looking
at a paper" at her place instead of working when Raymond
Mears, another supervisor, told her "We all have to pull
our share" and that everybody had "to work together to get
the paper out." This is what happened according to her
testimony. Her husband, Frank Rzepka, also a tape
puncher, testified his wife then complained to him about it:
"She came up to me and said , `Ray Mears came up to me
... and he told me to get back to work and he seemed to
be harassing me. . . . I stopped and I talked to the
machinist . . . and he came back around and said, look,
you've been fooling around all night, let's get production
out, let 's get back to work. . . . Later on, he [still Mears]
came up to me and pulled up his chair and wanted to have
a little heart-to-heart conversation with me, telling me that
I'm not pulling my load, that I'm not doing my share of
work.' " The , steward learned of this incident too.
According to Snook, the husband, Frank, told him about
it, adding his wife had only stopped work for moment. And
again Snook spoke to the supervisor. According to Mears:
"He [Snook ] said that I was to stop harassing the members,
that I was not going to tell the members what to do, I was
to leave them alone, I was to pass out the work, which my
job was . . . . That I was going to be taken downtown
.... To the Union headquarters.... That I had been
summoned before the executive committee once, and that
the next time, it wouldn't be a slap on the wrist, that Mr.
Mambeck had different ways of handling things." Accord,
the witness Snook for the Respondent : ". . . after he had
come up with that he had no problem that I shouldn't be
talking to him about such matters, I told him the only
recourse we had would be to go to Wisconsin Avenue."
5. Frank Alvaro, a Supervisor
Snook testified that sometime in February he was talking
to some employees at their work station-he was not sure
for how lQng-when Alvaro, the supervisor, ordered him to
leave the department so the people could work. He refused
to leave and Alvaro told Scott, the shift foreman, about it.
Snook then called the participants to his office where, still
according to the steward's story, he told Alvaro "if he was
going to continue this kind of action, that we probably had
to go to Wisconsin Avenue." Walsh, the assistant steward
who was present, testifying also for the Respondent said
that when Alvaro told Snook to leave the department, the
steward replied : "I am the Chairman , and this is the
composing room , and I can go anywhere in this composing
room."
6. Vic Edwards
On about April 1 Vic Edwards, a proofreader, talked to
the steward about the possibility of obtaining a withdrawal
card from the Union, and what it would mean for him to
have one. Scott, the shift foreman, saw the two talking, saw
it had been "5 minutes or more" and therefore enough,
although not knowing or caring what they were discussing,
and told Snook to let the man go back to work. Scott
testified that Snook answered "he would leave whenever he
was ready, he would talk to him as long as he pleased."
Scott then ordered Snook to leave and "let him [Edwards]
go back to his work," but Snook ignored the order. Scott
continued that Snook then talked to him in his office and
repeated he had "a right to talk to anyone that I choose";
Scott retorted not "to disrupt production ." At this point,
still according to the foreman , the steward said : "Don't
you think it's a little late in the game to take a chance on
losing your pension rights? . . . We're going to make
another Mr. Culpepper out of you." The foreman asked
what was the "we," and the steward answered "it was the
union." When Scott asked "are you threatening to take
away my pension rights?" the steward answered : "I can't
do that. Only the ITU executive council can do that; but
we are going to take you to Wisconsin Avenue." Scott is 60
years old.
Snook 's version of this incident differs in only one
respect from that of the foreman. He said he did discuss a
withdrawal card with Edwards, Scott said they had talked
"long enough," he replied it was "Union business and that
when I finished, I would leave," he then invited the
foreman into the office and spoke of Wisconsin Avenue to
him. Later in the day the steward again invited Scott into
the office to continue the- discussion . Now the foreman
insisted everybody was "going to toe the mark and so
forth"; to this Snook replied "we were not going to let him,
he and the supervisors , break the Union or ruin the
conditions that we have ... and by breaking the Union,
that we would all lost [sic] our pension rights...." When
Scott asked at this point whether the steward was
threatening to take away his pension, he answered, still
according to his own testimony: "No, I cannot take away
your pension, because that can only be done by the Union,
the Local Union and the International Typographical
Union ." Snook ended with saying that at that point he did
speak of Culpepper: "I said that we had just had the
Culpepper case ; and I mentioned that, . . . My exact
words were : `We've just had the Culpepper case ,' or words
to that effect."
B. Credibility,- Threat
Wherever Snook's testimony conflicts with that of Scott,
Calkins, or Mears as to what was said between them in any
of the conversations mentioned above, I do not credit
Snook . Throughout his story Snook repeated a number of
times the conclusionary generality that he did not
"threaten" any of the supervisors . In most of the incidents
his recollection at to the words he used did not differ from
theirs. Mears said that when speaking to him of the union
headquarters, the steward reminded the supervisor of an
earlier occasion and added it would not be "a slap on the
wrist" this time . Despite his generalities, Snook did not
precisely deny this statement. But the only substantive
question of credibility asks whether Snook told Scott
everybody could lose the union pension and not only the
foreman. Scott very clearly denied Snook said anything
about others , but only that Scott was in danger of losing his
pension . Snook's way of injecting this everybody idea, as
distinguished from danger to the foreman alone, was to
quote himself as telling Scott his activities might "break the
union." Of course breaking the Union means everybody
COLUMBIA TYPOGRAPHICAL UNION NO. 101 837
loses something, for then, there would be no union. But
when the foreman came back with whether Snook was
threatening him, on his own testimony the steward said no,
only "the union . . . local or international" could take
away his pension. But this is completely inconsistent with
there no longer being a union; it reveals instead what the
steward had in mind all the time and therefore what he did
convey, and it is that Scott's pension would be lost by
action of the ITU or International. With this, of course, the
indirect threat-you will be taken to Wisconsin Aven-
ue-is logically explained. Were there any doubt on this
record as to what Snook meant when he spoke of resolving
problems at the union headquarters, it is entirely clarified
by his mere mention of the name Culpepper to the shift
foreman. He said his only words were "we had just had the
Culpepper case-or words to that effect." All these
people-supervisors, stewards, rank-and-file-knew that
just at the time of these incidents, but before Snook's
reference here discussed, Culpepper, general foreman in
the composing room of a commercial printing shop in
Washington, D.C., and a member of this union, has been
fined $6,000 and expelled by the Respondent .2
I find that in each instance when Snook told Scott,
Calkins, and Mears that he would take them to the Union's
headquarters, however he phrased the thought, he threat-
ened them with internal union discipline by the Respon-
dent.
C. Supervisors-Management Representatives
That Scott, the shift foreman, in charge of about 150
men, is a supervisor as defined in Section 2(11) of the Act
is conceded. I find that Calkins and Mears are also
supervisors within the meaning of the Act. If there is a
distinction, for purposes of administering Section
8(b)(1)(B) of the Act, between such pure supervisory status
and "representatives for the purposes of collective bargain-
ing or the adjustment of grievances," I find that all three of
these supervisors fall into that category also 3
As stated above, in the total shift there are about 10
supervisors under the shift and assistant shift foremen.
Calkins and Mears had been working as supervisors
appointed by the Company, pursuant to the collective-
bargaining agreement, for several years at the time of the
threats; their names were so listed on the posted notices in
the composing room. Although they move from one
department to another, because no one works more than 5
days a week but the room is active all 7 days, each is
always in charge of a department, the number of people at
any moment under his immediate supervision varying from
12 or 14 to as high as 35 or 40. They also regularly
substituted at times for the foreman or assistant foreman.
They assign work to the people in their departments, they
transfer employees from one job to another as the
changing flow of work requires, they are responsible for the
flow of work through the department, deciding what has
priority, which employees are more capable, etc. They do
no production work. They are paid a differential above
journeyman scale, the amount varying, depending upon
which department they are in at the time, between $30 and
$45 per week; this extra payment is determined by the
Company independently of any union concern. It is clear
on this total record that Calkins and Mears, as supervisors,
perform essentially the same duties, and possess the same
authority as the other eight or so supervisors on the shift.
And finally, the supervisors participate in a training
program run by the Company and attend management
meetings covering such topics as labor relations and
working procedures. If, as the Respondent contends, none
of them are supervisors within the statutory sense, it would
mean that the approximately 150 employees who work
during the shift are supervised by only two men-the shift
foreman and his assistant-a highly unlikely ratio. Calkins
and Mears are authorized to report any employees who fail
in their work-quantitively or qualitively-to the foreman,
as also to report misconduct of any kind.
Most important of all, they participate in the grievance
disputes that arise as management representatives. The fact
of their status as Company's spokesman in this respect is
proved directly out of the mouth of the steward at the
hearing. In speaking of the Egbert incident, the steward
testified the dispute was discussed in the shift foreman's
office by four persons; "As Mr. Calkins said, he was a
witness for management. When I went in the office, say,
with Mr. Calkins and Mr. Scott, that would be two for the
Company and I would usually try to take two for the
Union." This finding that the two supervisors are indeed
supervisors and management spokesmen is supported
directly by further evidence placed in the record by the
Respondent, albeit with the intent of proving the contrary
proposition. In October 1971 close to 100 employees on the
shift signed a petition addressed to management requesting
the "removal of Supervisor Raymond Mears" in order to
achieve "more harmoneous relationship between union
and management." Throughout the hearing the Respon-
dent argued this incident shows the Union was not
concerned with the supervisor's activities in running the
business, in discharging the managerial functions for which
he received substantially higher pay, but only with his
union membership obligations and qualifications. No
coherent reasoning was advanced to support this conclu-
sion. Moreover, the witnesses also explained what it was on
the part of Mears that had provoked the petition. It
followed the discharge of a man named Alfred Uzal
(sometimes erroneously spelled Yzell in the record), a
dismissal recommended by Mears. Apparently it all started
when Mears complained to the steward that Uzal had left
the floor without authorization. [As it did with respect to
the later incidents of 1972 the Respondent at this hearing
characterized this order to go to work back in 1971 also as
harassment.] From the testimony of Dittmer, a supervisor
called as a witness for the Respondent: "he [Uzal] was
discharged as a result of a conflict with Mears." And
Jeffords, the employee who wrote up the petition and
started it around the shop for signatures, testified: ".. .
2 See, A.LJ. Decision in Columbia Typographical Union No. 101 (Byron agents-to restrain or coerce-an employer in the selection of his
S. Adams Printing), 207 NLRB No. 125 representatives for the purposes of collective bargaining or the
3 Section 8(b)(1XB) of the statute reads as follows : adjustment of grievances.
It shall be an unfair labor practice for a labor organization or its See, The Newspaper Guild (Times Publishing Co), 196 NLRB 1121.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brother Yzell- was approached by Mears, and he was
reprimanded by Mears, and he was harassed to the point
where Brother Yzell got mad and wanted to go into the
office."
Authority in a supervisor to exercise delegated control
over employees in- their work flows from the employer, not
from the union. The test of whether Calkins and Mears, as
any other supervisors in this composing room, are
supervisors and management spokesmen in grievances, is
whether they were given such authority, whether they in
fact exercise it, and especially whether higher management
gives effective consideration to their recommendations.
Mears was backed up by the general foreman and Uzal
was discharged as a result. The test of the supervisor's
status is not whether the union agrees it was right of
management to confer the authority, or believes it to be
contrary to its own interest to have, supervisors function as
such in the shop. The union's opinions are irrelevant to the
question. The 1971 petition is exactly like the later six
incidents-protest against supervisors acting as supervi-
sors. The Company did nothing about that petition, and
this is why Snook, speaking to Mears in one- of the later
incidents, said there, was no recourse except to take the
supervisors to union headquarters, or the executive board.
If the employer would not put a stop to its supervisors
exercising managerial authority over the employees, the
Union would see to it that they did stop!
I find that in each of the incidents set out above Steward
Snook threatened the supervisors-Scott, Calkins, and
Mears-with internal union disciplinary measures in order
by that means to control and dictate the manner in which
they discharged their managerial duties, and that by such
conduct of its steward the Respondent violated Section
8(b)(1)(B) of the Act .4 A number of factual assertions are
advanced in defense, none of them persuasive and most of
them unsupported by proof or at variance with the clear
facts of record. Once or twice, when telling the supervisors
they would be taken, to union headquarters, Snook
mentioned an earlier letter from the Union inviting seven
or eight supervisors to talk things over with the executive
board on Wisconsin Avenue; as to some others of the
incidents Snook said at the hearing that what he had in
mind at the time of these events was this self same letter
invitation. Without coherent explanation anywhere in the
record this letter is then made part and parcel of another
assertion, that Calkins ,and Mears drank on the job, came
to work intoxicated, sold whiskey in the composing room
in violation of company regulations. This blanketing fog is
then said to become evidence that the Union's purpose
throughout was only to achieve a modus vivendi between
management and its employees. How all this obliterates the
clear fact that in each and every incident it was the
supervisor's directive to employees to work and not idle
that immediately provoked the steward's threats, remains a
void in the defense. These so called defenses are advanced,
belabored again and again at the hearing, as though the
fact of what was said and done, proved out of the mouth of
the Respondent's own witnesses, just did not exist. The
attempted mockery merits no discussion.
The indications are that the letter inviting supervisors for
consultation at the union hall, ignored by both Calkins and
Mears, was to straighten the supervisors out on precisely
the same dispute that gave rise to Snook's threats as related
at this hearing-should they continue to supervise the men
by giving work orders as they saw fit or should they run the
composing room as the Union's executive board deemed
proper. The words modus vivendi are but a paraphrase of
successful collective bargaining. Peaceful industrial rela-
tions are achieved by conference between union represent-
atives and management in the plant, at the bargaining
table, or pursuant to the grievance procedure. They are not
brought about by the union hammering its sense of correct
management into the heads of supervisor-members of the
union, by threatening to take away their pension rights, or
by making more Culpeppers out of them. The Respondent
never filed any grievance under the contract with respect to
any of the disagreements between union and management
that gave rise to this entire case .5
What the steward was talking about when threatening
these supervisors was their insistence upon giving work
orders, a fact so clear of this record as to justify no
repetition. He, and a number of other union members
testifying for the Respondent, called the work orders
"harassment," "problems." These words change nothing.
Even Supervisor Mears' recommendation that a man be
discharged in 1971, and his successful defense of the action
in the grievance that undoubtedly followed, is cavalierly
advanced as justifiable reason for the Union to "defend"
itself by threatening the supervisors months later.
Both Snook and an employee named Deckman said that
on an unspecified day some time during the first 3 months
of the year, they saw Mears drunk on the job. Two other
witnesses, also without specifying, simply testified they saw
the two supervisors under the influence of alcohol while at
work. Calkins denied he ever came to work drunk or sold
whiskey to anyone. No need here to decide whether either
of them ever violated the rule against drinking on the job,
for the Company's brief correctly states: "there is not one
scintilla of proof with which to connect it to the situations
out of which the unfair labor practices arose."
D. The August 26 Incident
At the start of the hearing the General Counsel amended
the complaint to allege that Stewart Snook on August 26,
4 Meat Cutters Union Local 81 v N.L RB, 458 F.2d 794 (C A.D C.,
1972); San Francisco -Oakland Mailers Union No. 18, ITU, 172 NLRB 2173;
N.L.R B. v. Toledo Locals Nos 15-P and 272, 437 F.2d 55 (C.A. 6, 1971);
NLRB v Sheet metal workers InternationalAssociation, Local Union No.
49, AFL-CIO, 430 F2d 1348 (C.A. 10, 1970).
5 At the hearing the Respondent argued that these matters "cannot go
through the grievance procedure of the contract , because no arbitrator has
any authority over directing the supervisors of an employer as to what they
can do or cannot do." After the close of the hearing, in complete reversal,
the Respondent filed a motion to dismiss the complaint on the ground that
the question presented should instead go to arbitration under the terms of
the contract: The motion is dewed; Houston Mailers Union No. 36, 199
NLRB 804, cited in support , is substantially distinguishable.
COLUMBIA TYPOGRAPHICAL UNION NO . 101 839
1972, threatened destruction of supervisors' automobiles if
the Respondent did not withdraw its charge in this
proceeding. The allegation rests upon a conversation
Snook had with Foreman Smith on that date in which the
steward suggested the Company withdraw the charge and
seek an amicable settlement of the dispute without "third
party" participation. A few days earlier one of the
supervisors, Farnsworth, had driven his car into the back
of another car parked at the sidewalk curb in front of the
Company's plant. The supervisor and the owner of the
other car, a lobster shift employee named Epstein, had
words about it, and the incident grew into a grievance. It
also appears, on uncontradicted evidence, that Farnsworth
was known to have a gun at work on occasion, and used to
carry a knife concealed on his person. Somehow the Union
felt the Company was condoning misbehavior by Farns-
worth and demanded that he be disciplined. Smith, the
foreman, reported to Snook that the Company would not
withdraw the charge then pending before the Board, and
the steward then said, as Smith testified: " `We have had
problems in the past of automobiles being damaged,' and
he didn't approve of this. However, if this case pursued,
this would only escalate." Snook testified that in this same
conversation he told Smith of Farnsworth's gun and knife,
as well as of the automobile incident, with the words: ".. .
I didn't believe in this kind of action, that I thought it was
wrong if it was job-related, that I didn't want anyone
damaging my car or messing with my family or my child
... we had this complaint about Farnsworth with a club,
Farnsworth with a gun and a knife . . . and by going to
outside agencies, with all due respect to this August body
... it would only cause this type of thing, this back and
forth, this agitation, this thing would escalate."
This was not an unreasonable thing for Snook to say and
I do not believe the total evidence warrants a finding that
he threatened physical violence to anyone. I do not know
whether Farnsworth's showing a gun or carrying a knife
had anything to do with the dispute then causing friction
between the Union and the Company; certainly the
bumping of two cars when parking bore no relationship in
itself to this charge or to the Union's disciplining of
supervisors. And it cannot be gainsaid that there was at the
time some bad feeling among the employees, some
supervisors and some rank-and-file, but all union mem-
bers. For Snook to say continued litigation could cause the
growing hostility to "escalate" is understandable. It was
enough to observe the attitude of the successive witnesses
at the hearing to see how right he was. It is unfortunate
that proceedings alleging violations of law, particularly
violations of this statute, cannot always be settled by
amicable adjustment of the parties. But this is not reason to
look with suspicion upon an effort to avoid trouble in the
attempt.
E. Correction Notice?
On April 5, 1972, at a meeting with management, Hall,
the Respondent 's president, was told the Company
intended that day to file Labor Board charges against the
Respondent based on Snook's threats to the supervisors.
As it developed the charge was filed on April 10. Also on
the 5th, Hall wrote a letter to Snook, instructing him to
curb his temper, to speak politely, not to curse, and to
discuss grievances in the office-his or the foreman's-but
not to disrupt work while doing so. He wrote a followup
letter on the 10th again in the same vem. The Union now
contends that the complaint should be dismissed on the
ground that these letters gave assurance to the people
involved that, even assuming unfair labor practices had
been committed, they would not be committed again, and
that therefore there is no need for any Board restraining
order. I find the contention without merit.
Neither letter was written until after the Respondent
learned of the intended unfair labor practice charges. No
more would the Board discontinue an unlawful discharge
case against an employer because after becoming aware of
the proceeding it says it will not repeat the offense.
Moreover, neither of the letters tells Snook to stop
threatening supervisors with union discipline, which is the
offense involved in this case. Courtesy, polite language,
etc., are one thing; intimidating statements are something
else again. In fact, the letters make it a point to emphasize
the Union did not recognize any threats having been made.
Equally pertinent is the fact the letters were never brought
to the attention of the threatened supervisors at all, nor,
indeed, to the attention of the Company, whose statutory
right to be free of union coercion in running its business
goes to the heart of this case. The evidence falls short of
proving the letters were ever posted on the bulletin board
on any shift. Snook's testimony on this point is so evasive,
inconsistant, vague, and elusive as to be worthless. At best
it appears he showed copies of the letters to some rank-
and-file employees. But these are not the persons towards
whom the unfair labor practices were directed, and who
must be protected under the law.
THE REMEDY
This is the fourth case in which violations of Section
8(b)(1)(B) of the statute have been found against this Local
Union, all for the same kind of illegal conduct-fines or
threats of fines to coerce employers in their choice of
management representatives . The first three were: The
Evening Star Newspaper Co., 193 NLRB 1089, issued
September 1, 1971; Columbia Typographical Union No. 101,
207 NLRB No. 124 and Byron S Adams Printing, Inc.,
supra. In view of this consistent pattern of willful disregard
of the proscription of the Act, reasonable effectuation of
the policies of the Act requires that the Respondent be
ordered to cease and desist not only from hereafter
coercing this charging party but also any other employer
within its jurisdiction. Accordingly it will be ordered that
Local 101, I.T.U., be enjoined from hereafter violating
Section 8(b)(1)(B) in its affairs with the Washington Post
Company. and any other employer.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSION OF LAW
By threatening Gordan Scott , Whitney Calkins, and
Raymond Mears with internal union disciplinary action
because they issued work orders to rank-and-file employ-
ees, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(b)(1)(B) and 2(6) and (7) of the Act.