Detroit Newspaper Pressman's Local No. 13

National Labor Relations Board - Board Decisions

Apr 29, 1975

217 N.L.R.B. 576 (N.L.R.B. 1975)

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Detroit Newspaper Printing Pressmen 's Union, Local
Union No. 13, International Printing Pressmen and
Assistants' Union of North America, AFL-CIO
-(Observer Newspapers , Inc.) and Carol L. Wilson.
Case 7-CB-2991
April 29, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On June 27 , 1974, Administrative Law Judge Peter
E. Donnelly issued the attached Decision in this pro-
ceeding . Thereafter, Respondent filed exceptions and
Charging Party filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor, Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings , findings , and conclu-
sions of the Administrative Law Judge only to the ex-
tent consistent herewith.
The Administrative Law Judge did not consider the
United States Supreme Court 's ruling in Florida Power
& Light Company v . International Brotherhood ofElec-
trical Workers, Local 641, 622, 759, 820 and 1263,
AFL-CIO,' decided only a few days earlier , on June
24, 1974, which in our =view is dispositive of the instant
case.
Supervisor Carol L. Wilson was fined by the Union
for continuing "to work and collaborate with the com-
pany replacements thereby jeopardizing and undermin-
ing the position of the Union during negotiations lead-
ing to a contract." The Administrative Law Judge
found that by working 5 hours beyond her normal shift
she performed at least some unit production work
which she normally would not have performed . Charg-
ing Party now contends that she was not fined for
performing "struck work" within the intendment of
Florida Power & Light.2 We do not . agree . Though
during the brief strike she may have performed more
supervisory functions than usual , due to the availability
of only an inexperienced work crew , it is uncontested
that she spent the customary 50 percent of her time on
unit work during her normal shift and much more than
a minimal amount of her time on unit work during the
additional 5 hours she -worked beyond that time.
Consequently , under Florida Power & Light, the
1 417 U.S 790
z Charging Party excepts only as to this point . Members Kennedy and
Penello note that no exceptions were filed concerning the Administrative
Law Judge 's treatment of the "Collye," issue
Union's imposition of a fine against Carol L. Wilson
was not a violation of Section 8(b)(1)(B) of the
Act.' '
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
3 See Bakery & Confectionery Workers International Union of America,
Local Unions 24 & 119 (Food Employer's Council, Inc J, 216 NLRB No. 150
(1975) Member Fanning concurs in the result for the reasons stated in his
concurring opinion in that case
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
charge herein was filed by Carol L. Wilson, an individual, on
January 25, 1974, and a complaint thereon was issued by the
General Counsel of the National Labor Relations Board on
March 7, 1974, alleging that Detroit Newspaper Printing
Pressmen's Union, Local Union No. 13, International Print-
ing Pressmen and Assistants' Union- of North America,
AFL-CIO, herein called Respondent or Union, violated Sec-
tion 8(b)(1)(B) of the Act by imposing a fine on Wilson for
performing struck work. An answer was timely filed by Re-
spondent and, pursuant to notice, a hearing on the matter was
held before me at Detroit, Michigan, on May 7 and 8, 1974.
Briefs have been timely filed by General Counsel and Charg-
ing Party which have been duly considered.
FINDINGS OF FACT
I EMPLOYER'S BUSINESS
Observer Newspapers, Inc., herein called Employer, is a
Michigan corporation engaged in the business of publication,
sale, and distribution of newspapers in Livonia, Michigan.
During the calendar year ending December 31, 1973, the
Employer had gross revenues in excess of $200,000 and pur-
chased and caused goods and materials valued in excess of
$50,000 to be transported to its Livonia, Michigan, facility
directly from States of the United States other than the State
of Michigan. The complaint alleges, the answer admits, and
I find that Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II LABOR ORGANIZATION
The complaint alleges and Respondent in its answer ad-
mits, and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
III ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges in substance that Respondent fined
Carol L . Wilson , a supervisory employee and a member of the
Respondent , $250 because she continued to work during Re-
217 NLRB No. 94
DETROIT NEWSPAPER PRESSMEN 'S LOCAL NO. 13
spondent's work stoppage on September 11 and-12, 1973, and
by so doing, Respondent violated Section 8(b)(1)(B) of the
Act.
A. Facts'
1. Wilson's supervisory status
Wilson was first employed by Employer in July 1970. Wil-
son has also been a member of Respondent since that time,
as the complaint alleges and the answer admits. In April
1973, a decision was made by the Employer to institute a
lobster shift . Wilson was designated to supervise that shift
and has been so employed since that time. Shortly before this,
in about mid-March 1973, Wilson was advised by Alex Dzie-
wit, production director, that she was to be in charge of the
composing room and prep room on the lobster shift and
outlined her duties to her at that time, which included super-
vising the work of employees , granting overtime , granting
time off, and resolving minor grievances.'
Wilson works ,4 days per week with Wednesday off. Her
hours on the lobster shift are normally from 8 p .m. until
about 4:30 a.m. For 2 days per week Gary Dishman, who is
in charge of the afternoon shift, would remain until the end
of the lobster shift . On the remaining 2 days he generally
stayed until some time between I l p .m. and 1 a.m. While
Dishman was on the floor he was in charge . Wilson also
exercised certain supervisory functions but to a lesser degree.
In Dishman 's absence Wilson was the only supervisor present
and was in complete charge of the composing and prepara-
tory room operation which normally had a complement of
some five employees, including Wilson.
Wilson's authority included the right to assign composing
room employees to various work tasks and also to reassign
them as she determined would best effectuate production. In
the event that she decided that overtime was required, she
had the authority , without clearance from higher authority,
to grant such overtime . This occurred at least once a week to
the extent of I or 2 hours each time. At times when it ap-
peared to Wilson that the workload would accommodate it,
she had the authority , which she exercised, of permitting
employees to leave the shift early. She also had the authority
to deny such requests and to permit employees to leave be-
cause of illness.
On the other hand, it appears that Wilson performs a
substantial amount of unit production work ; that she is
I Charging Party filed a motion with me to correct the official transcript
in this case to reflect that Charging Party Exhs. 4, 5, and 6 were admitted
into evidence No objection to this motion has been received from either
General Counsel or Respondent In concurrence with the view expressed in
the motion , it is my recollection that these documents were received into
evidence and the failure of the transcript to reflect their admission is the
result of inadvertence in the transcription of these proceedings. Accord-
ingly, Charging Party's motion is granted as to Exhs 4 and 5. As to Exh
6, the transcript reveals that it was received into evidence on p 167. How-
ever, the "contents" page of the transcript fails to reflect this and the motion
to correct in this regard is hereby granted In granting this motion, it is
further noted that no reliance is placed by me on any of these documents
in reaching any of the conclusions made in this Decision.
2 It appears that Wilson may have been for some time previously a day-
shift supervisor prior to the institution of the lobster shift, but her supervi-
sory status at that time is not in issue and no finding is made thereon in this
case.
577
hourly paid while other supervisors are salaried ; and that she
does not hire or fire, and has not disciplined anyone . Never-
theless it has been amply demonstrated in view of the facts
noted above and the entire record herein , that Wilson's au-
thority is not routine and that she possesses several of the
requisite indicia of supervisory authority to constitute her as
a supervisor within the meaning of Section 2(11) of the Act
and I so find.
2. Fining of Wilson
Employer and Respondent were parties to a 3 -year con-
tract which expired July 1, 1973 (G .C. Exh . 11). Negotiations
on a new contract began in late May 1973, and continued
through its expiration .' The contract unit therein ' included
the composing room and preparatory room employees su-
pervised by Wilson on the lobster shift . Negotiations on a new
contract were not productive . On September 10, 1973, the
Chapel voted to reject the Employer's position on the con-
tract. On September 11, another meeting of the Chapel was
held in the evening at or about 10:15 or 10:30 p .m. Another
vote was taken on whether to work or leave the premises. By
a 3-to-1 margin they voted to leave and a work stoppage
ensued . After the meeting, Dziewit advised Wilson that she
would be expected to work, and Wilson told him that she
would work . She did work along with a makeshift crew of
other supervisors and nonunit employees . Due to their inex-
perience, Wilson did more supervising that night than she
normally did. In addition to supervision , ` Wilson also did
production work during the stoppage , including markup,
running the machines , and proofreading.
Wilson worked beyond her normal 4 :30 a.m . quitting time
until about 9 :30 a.m . on September 12. Wilson normally quit
at 4:30 a.m., thus it is obvious that Wilson , during this addi-
tional 5 hours of work , performed unit production work
which would normally have been performed by employees on
the day shift had those employees not been engaged in a work
stoppage . Picketing had begun about 6 a.m. and it was neces-
sary for Wilson to cross the picket line when leaving work.
The parties met during the day on Wednesday , September 12,
and agreement in principle on a contract was reached. The
picketing ended later in the afternoon on September 12. The
contract was later drafted and finally signed on January 17,
1974, reciting effective dates of July 3, 1973, through June 30,
1975 (Resp . Exh. 1).
It is undisputed that by letter dated October 1 , 1973,
charges were brought against Wilson by Donald C . Kummer,
president of Respondent (G.C. Exh. 2). The substance of the
charges 'are contained in the last paragraph of the letter which
reads, "The above-named member did continue to work and
3 The evidence does not establish that there was any agreement between
the Employer and Respondent to extend the contract on a day-to -day basis
as alleged in par. 11(a) of the complaint . Respondent denied such extension
in its answer and at hearing ; the Charging Party expressly concurred.
4 Article 2 of the expired contract is captioned "UNION RECOGNI-
TION" and sets forth the unit as follows , "including all composing room
employees (including copy control center), preparatory department em-
ployees, pressroom employees , mailroom employees , maintenance em-
ployees, electronic equipment maintenance technician , and truckdrivers;
excluding all other employees , guards and supervisors as defined in the
National Labor Relations Act." Par. 9 of the complaint herein was amended
at the hearing to reflect this unit language.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collaborate with the company replacements thereby jeopard-
izing and undermining the position of the Union during
negotiations leading to a contract ." This letter also contained
a request for Wilson to appear on-November 1, 1973, before
the five-member executive board of the Respondent for a
hearing on the charges. Respondent appeared at the executive
board hearing and argued that she was a supervisor and
therefore was entitled under the contract to work during the
work stoppage without retaliation by the Union under article
24 of the expired contract.' She was advised by the execu-
tive board chairman, identified as a Mr. Laveley, that the
contract had expired and that therefore article 24 did not
apply, to Wilson. By letter dated November 26, 1973 (G.C.
Exh. 6), Wilson was advised by Respondent that the execu-
tive board had voted to fine her $250 and further advised her
that she could appeal this decision to the membership. On
December 16, 1973, at a regular meeting of the membership,
Wilson appealed the fine on basically the same grounds, i.e.,
that she was a supervisor and her fine was therefore illegal
under article 24, however this appeal was rejected. In January
1974, Wilson appealed her fine to the president of the Inter-
national, Sol Fisko. This appeal was dismissed by letter dated
February 5, 1974, from Fisko (G.C. Exh. 5) because of Wil-
son's failure to deposit the amount of the fine with the Re-
spondent as required by the International Constitution and
Laws as a condition precedent to consideration of her appeal.
Wilson had not, at the time of this hearing, paid the fine.
3. The Collyer issue
At the hearing, Kummer testified that the Employer had
a right, under the present contract to file a grievance against
the Union. To support this contention, Kummer cited article
11, section 1, of the contract which describes a grievance as
a dispute between the Union and the Company concerning
the ". . . interpretation or application of the provisions of
this Agreement or violations of the provisions of this Agree-
ment." Kummer also cited article 11, section 1, step 3(c),
which provides, "If either party fails to take an action permit-
ted to it within the time limits hereinabove specified, or as
extended by written agreement of the parties, the grievance
shall be deemed to be settled on the basis of the position last
taken by the non-defaulting party." When asked if there was
anything else he relied on in concluding that the Employer
could file a grievance, Kummer replied, "I suppose those are
it. I. suppose those are the references that I would say entitle
the Employer to file grievances." It was stipulated by all
parties that the Employer has not filed any grievance since
the beginning of contractual relations between Respondent
and Employer in 1970.
On-the other hand, article 11, section 2, the arbitration
provision of the contract, provides, inter alia, "In the event
5 This article reads
NONRETALIATION The Publisher shall not discipline the chapel
chairman for Umon activities engaged in while administering this
Agreement
No foreman who is a member of the Umon shall be subject to fine,
discipline or expulsion by the Union for any act in the performance of
his duties as foreman when such act is not in conflict with this Agree-
ment
that the disposition of the grievance at step 3 of the grievance
procedure is not acceptable to the Union, such grievance or
dispute, which has been processed in accordance with the
preceding grievance provisions of this Agreement, may,
within thirty (30) calendar days after the Company's final
decision on this matter, be submitted to the American Arbi-
tration Association for arbitration in accordance with its
rules and regulations."
B. Discussion and Analysis
In view of the evidence outlined hereinabove, I have con-
cluded that Wilson is a supervisor within the meaning of
Section 2(11) of the Act.
This being the case, it is my further conclusion that by
fining Wilson for performing struck work,' Respondent has
violated Section 8(b)(1)(B) of the Act under applicable Board
precedent.
Succinctly stated, the basic issue is whether or not a union
may lawfully fine a supervisor-member for performing struck
work. A review of Board authority on the issue discloses a
clearly negative , although not unanimous response. There are
several Board cases holding that such fines are illegal in that
they restrain and coerce employees in the selection of their
representatives for the purposes' of collective bargaining or
the adjustment of grievances proscribed by Section 8(b)(1)(B)
of the Act. The rationale behind the holdings in these cases
is that such fines are not matters of purely internal union
discipline but are in reality an unwarranted interference with
the employer's control over its own representatives. See Inter-
national Brotherhood of Electrical Workers, AFL-CIO, and
Local 134, International Brotherhood of Electrical Workers,
AFL-CIO (Illinois Bell Telephone Company), 192 NLRB 85
(1971); Local Union No. 2150, International Brotherhood of
Electrical Workers, AFL-CIO (Wisconsin Electric Power
Company), 192 NLRB 77 (1971); Local No. 1, International
Union of Elevator Constructors, AFL-CIO (Westinghouse
Electric Corporation), 210 NLRB 903 (1974). As noted in
these cases, the majority view is not shared by dissenting
Member Fanning, nor is the majority Board view shared by
all of the U.S. circuit courts which have passed on the matter.
The United States Circuit Court of Appeals for the District
of Columbia denied enforcement in the Illinois Bell case
(sub nom. International Brotherhood of Electrical Workers,
Local 134, 487 F.2d 1143 (C.A.D.C., 1973)). On the other
hand, the majority Board position was upheld in Wisconsin
Power Electric, wherein the Seventh U.S. Circuit Court of
Appeals enforced the Board decision at 486 F.2d 602. See also
San Francisco Typographical Union No. 21 International
Typographical Union, AFL-CIO (California Newspapers,
Inc.), 193 NLRB 319 (1971), wherein the Ninth U.S. Circuit
Court of Appeals denied enforcement of the Board's order in
6 In its brief, Charging Party contends that Wilson did not perform struck
work during the stoppage but only did her usual work. In my opinion the
facts do not support this conclusion As noted above, Wilson, in her normal
function, supervises and also spends a substantial amount of her time doing
unit production work Wilson worked 5 hours beyond her normal shift
during the work stoppage and thus performed at least some unit production
work which normally would have been performed by employees on the a:m
shift had it not been for the work stoppage Thus I conclude that Wilson
performed struck work during the work stoppage
DETROIT NEWSPAPER PRESSMEN 'S LOCAL NO 13 579
pertinent part (486 F.2d 1347), apparently sharing Member
Fanning's dissenting view.
This split in the U.S. circuit courts may well lead to a final
disposition on the matter by the United States Supreme
Court. However, in the meantime, I am constrained to follow
Board precedent in the matter and in so doing I fmd that by
imposing a $250 fine on Wilson for having performed struck
work during the work stoppage, Respondent violated Section
8(b)(1)(B) of the Act.
With respect to the Collyer' issue, I have already con-
cluded herein that Wilson is a supervisor and any considera-
tion of this issue, therefore, begins with this premise. In addi-
tion, Wilson is also the Charging Party in the instant case,
filing as an individual. The fact that she is the Charging Party
filing as an individual would not, by itself, make deferral
under the Collyer principle inappropriate. In certain circum-
stances deferral would be appropriate assuming that the Em-
ployer, as party to the contract, invoked the grievance ma-
chinery on behalf of the individual charging party. See Tyee
Construction Co., 202 NLRB 307 (1973). This is especially
true where, as here, Wilson was a supervisor and her interests
would normally be more closely allied-to the interests of the
Employer than those of the average employee. However, it is
basic to any application of the Collyertheory as to the under-
lying dispute, which in this case involves an interpretation of
the Nonretaliation clause of the present contract,' that
binding arbitration be available. See Collyer, supra, and Tul-
sa-Whisenhunt Funeral Homes, Inc., 195 NLRB 106 (1972).
As applied to the instant case, this would mean that the
Employer, as party to the contract, and invoking the griev-
ance and arbitration provisions of the contract on Wilson's
behalf, would have to have available to it binding arbitration.
After carefully reviewing the grievance and arbitration provi-
sions of this contract, I am satisfied that binding arbitration
is not available to the Employer. Indeed the Respondent
7 Collyer Insulated Wire Co., 192 NLRB 837 (1971).
s The "Nonretaliation" clause is identical in both the expired contract and
the present contract.
9 It also appears that at the time that the dispute herein arose, on Septem-
ber 11 and 12, there was no contract in effect between Respondent and
Employer. Deferral under Collyer is also inappropriate for this reason apart
from any consideration of the substance of the grievance and arbitration
provisions. Borden, Inc., Dairy & Services Division, 196 NLRB 1170 (1972)
makes no contention that such arbitration is available under
the contract. Accordingly, deferral under the Collyer princi-
ple is not deemed warranted in the circumstances of this case.
Bunker Hill Company, 208 NLRB 27(1973).9
IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Employer described in section I, above , have a close, inti-
mate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(b)(1)(B) of the Act,
I shall recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act.
On the basis of the foregoing findings of fact and the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Detroit Newspaper Punting Pressmen's Union, Local
Union No. 13, International Printing Pressmen and Assist-
ants' Union of North America, AFL-CIO, is a labor orgam-
zation within the meaning of Section 2(5) of the Act.
2. Observer Newspapers, Inc., has been at all times
material herein an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
3. By restraining and coercing Observer Newspapers, Inc.,
in the selection of representatives for the adjustment of griev-
ances, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]