Local 43, Printing Pressmen

National Labor Relations Board - Board Decisions

Mar 8, 1973

202 N.L.R.B. 286 (N.L.R.B. 1973)

286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 43, International Printing Pressmen and Assist-
ants Union of North America (San Antonio Ex-
press and News) and Wallace H. Wieters. Case
23-CB-1281
March 8, 1973
DECISION AND ORDER
Administrative Law Judge 's conclusion that both Wieters and Rivers were
in fact members of Respondent at all relevant times. Furthermore, the
burden of proving nonmembership in the context of this case rested with the
General Counsel who has clearly failed to meet that burden here.
5 The Administrative Law Judge 's Conclusions of Law and recommend-
ed Order imply that the overtime list maintained by Respondent at the
Express was composed of Respondent 's members only. Since maintenance
of a discriminatory overtime list was neither alleged nor established on the
record, we must assume that the list itself was not discriminatory.
Accordingly , we shall modify the recommended Order in this regard
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On August 17, 1972, Administrative Law Judge'
John F . Funke issued the attached Decision in this
proceeding . Thereafter , the General Counsel and the
San Antonio Express and News2 filed limited
exceptions and supporting briefs.
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,3
findings ,4 and conclusions5 of the Administrative
Law Judge and to adopt his recommended Order, as
modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Local 43, International Printing
Pressmen and Assistants Union of North America,
its officers , agents and representatives , shall take the
action set forth in the said recommended Order as
herein modified.
1. In paragraph 1 of the recommended Order
insert the words "who refuse to pay fines" after the
words "of its members."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Hereinafter called the Express
3 The Express has excepted to the Administrative Law Judge' s refusal to
permit it to litigate the validity of the consolidation between Local 52 and
the Respondent pursuant to which the former dissolved and the latter took
over the representation of the employees We agree with the Administrative
Law Judge's ruling on the grounds that the merger of the two locals, which
was approved by the parent International union, is not an issue in this case.
At no point has the Charging Party, the General Counsel, or the
Respondent urged that the validity of the merger is relevant to the
membership status of Wieters and Rivers
4 The General Counsel and the Express have excepted to the Adminis-
trative Law Judge's finding that Wieters and Rivers were members of
Respondent at all times material. The record contains a stipulation that
both employees tendered dues to Respondent and, additionally, Respon-
dent's counsel stated on the record without challenge that both were indeed
members . Thus, the record evidence , although scant, tends to support the
202 NLRB No. 37
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT remove the names of Wallace H.
Wieters and Rudolph L. Rivers or of any other
members who refuse to pay fines from the
overtime list maintained by us at the San Antonio
Express and News or at any other employer with
whom we have a collective-bargaining contract
thereby causing the San Antonio Express and
News or any other employer to violate Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL restore and keep the names of
Wallace H. Wieters and Rudolph L. Rivers on the
overtime list maintained by us at the San Antonio
Express and News on a rotating basis and in
accordance with past practice.
WE WILL pay Wallace H. Wieters and Rudolph
Rivers for any earnings they may have lost
because we took their names off the overtime list.
LOCAL 43,
INTERNATIONAL PRINTING
PRESSMEN AND
ASSISTANTS UNION OF
NORTH AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone
713-226-4296.
LOCAL 43, PRINTING PRESSMEN
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: This proceeding was
brought before the National Labor Relations Board upon:
1. A charge and amended charge filed by Wallace H.
Weiters, an individual, against Local 43, International
Printing Pressmen and Assistants Union of North Ameri-
ca, herein Local 43, alleging Local 43 violated Section
8(b)(1)(A) and (2) of the Act, said charges being dated May
15 and 30, 1972, respectively.
2. A complaint of the General Counsel alleging Local
43 violated Section 8(b)(1)(A) and (2) of the Act, issued
June 20, 1972.
3. An answer filed by Respondent denying the commis-
sion of any unfair labor practices, dated June 23, 1972.
4. A hearing held before me at San Antonio, Texas on
July 27, 1972.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following:
FINDINGS
1. BUSINESS OF THE EMPLOYER
San Antonio Express and News, herein the Employer, is
a Texas corporation having its principal place of business
at San Antonio, Texas, where it is engaged in printing and
publishing a daily newspaper. It purchases goods and
materials valued in excess of $50,000 annually from places
outside the State of Texas and its gross revenues exceed
$500,000 annually.
The Employer is engaged in commerce within the
meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
Local 43 is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Prior to February, 1972, Local 52, International Printing
Pressmen and Assistants Union of North America had a
collective-bargairing contract covering the employees in
the unit described therein. (General Counsel's Exhibit No.
2.)
On or about January 7, 1972, Local 43 notified the
Employer that Local 52 had effected a merger with Local
43 and that after February Local 43 would assume and
administer the aforesaid contract.'
It was stipulated between the General Counsel and Local
43 that on or about February 1, 1972, Local 43 imposed its
constitution, bylaws, and working rules upon Wallace H.
Weiters and Rudolph L. Rivers who were employees of the
Employer and had been members of Local 52. It is not
i The Employer objected to this evidence but the Trial Examiner ruled
that the merger and the relationship between the Employer and Local 43
was not an issue in this proceeding.
287
disputed that they became members of Local 43 or that
they were members of Local 43 at all times material herein.
Local 43's constitution and bylaws (G.C. Exh. 3) contains
the following provisions:
ARTICLE XVII
SECTION 30. The chairman of a shop (in which the
Union has a signed contract) who finds one or more
positions on a press crew is going dark, shall proceed as
follows: In case of a member refusing to work, he shall
be subject to a fine of one day's pay, unless he is
already working or hired to work; unless he would be
forced in a triple-shift, or more. A chairman shall
consider physical handicaps. When it becomes neces-
sary to force a man to work, the chairman shall compile
a list of all members (with the above exceptions) and
begin to hire from the men with the least amount of
time, and go completely through the list if necessary,
before taking a definite stand; then, in the same
rotation he shall begin again, and fine each man who
refuses to work. Subs shall be governed the same way.
Wallace Weiters testified that he had been employed by
the Employer as a newspaper pressman since 1956 and that
during that period an out-of-shop list was kept by the
chapel chairman for those who wanted to work outside the
Employer's shop. Until the merger of Local 52 with Local
43 the out-of-shop list was maintained on a voluntary
basis; i.e., a member had to volunteer to have his name
placed on the list for assignment to another shop when his
tour of duty expired at the Employer. Section 30 of article
XVII had not been a part of the bylaws of Local 52. On
Saturday, February 26, Weiters was called at his home by
Harry Davis, chapel chairman, and told to report to the
San Antonio Light for work. He refused the assignment
and was told by Davis that "they" would have to write up
charges against him.
Rudolph Rivers testified that he had been employed as a
journeyman pressman with the Employer since 1948. While
he had accepted out-of-shop assignments at the Light in
the past there had come a time (not specified) when he
refused and he had refused consistently ever since. On
February 26 he was again asked to report to the Light by
Davis and refused. Following this refusal, charges were
preferred against both Weiters and Rivers by Local 43 and,
after a hearing, 2 each was fined I day's pay. For failure to
pay this fine each was taken off the overtime list at the
Express. The overtime list was a rotating list posted in the
Employer's pressroom and the members or employees at
the top of the list had first choice of overtime work.
Elimination from the list meant the loss of opportunity for
overtime. This list was maintained by the chapel chairman
of Local 43.
James Zoeller, foreman of the pressroom, testified that
the overtime list was maintained by the chapel chairman
and that the lowest man in point of overtime was up first.
Three or four weeks before the hearing he had complained
to chapel chairman Davis that Weiters and Rivers had
been taken off the list at the request of the chairman
2 Both Weiters and Rivers had asked for a jury trial and were still
seeking a jury trial at the time of the hearing.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they had been fined by Local 43. About a week
later they were restored to the list and have been receiving
their allotment of overtime ever-since. Zoeller estimated
that they had been off the list for 2 months or 10 weeks.
Harry Davis, called by the General Counsel, testified
that he was relying on section 30 of article XVII of the
bylaws when he filed charges against Weiters and Rivers.
B. Conclusions
From facts which are not disputed it is established that
Local 43 took two forms of action against Weiters and
Rivers when they refused to accept out-of-shop assign-
ments to work at the San Antonio Light: (1) it brought
charges against them and, after a hearing, fined each of
them 1 day's pay; (2) it removed them from the overtime
list of the San Antonio Express, thereby depriving them of
overtime pay accorded other employees and members on a
rotating basis.
I find that Local 43 did not violate Section 8(b)(1)(A) of
the Act by fining Weiters and Rivers for violation of
section 30 of article XVII for failing to accept assignments
of out-of-shop work at the Light. This was not a
discriminatory rule, it was not discriminatively applied and
it violated no provision of the statute nor was it repugnant
to Board policy. I find it was within the proper scope of the
authority to prescribe reasonable working rules covering
the relationship between the members of Local 43 and the
employers with whom it had contractual relationships.3 In
so finding I express no opinion on the merits of the hearing
before Local 43 or whether the language of section 30
required the members to accept out-of-shop assignments as
well as overtime work. This determination should be
properly left to the hearing procedures of a union, absent
evidence that a fair hearing was not held.
The removal of the two members from the overtime list,
on the other hand, violated Section 8(b)(1)(A) and (2) of
the Act since the penalty involved "enforcement of a
union's internal regulations to affect a member's employ-
ment status."4
Upon the foregoing findings and upon the entire record,
I make the following:
CONCLUSIONS OF LAW
1. By removing the names of Wallace H. Weiters and
Rudolph L. Rivers from the overtime list maintained by it
at the San Antonio Express and News, thereby depriving
them of overtime regularly alloted to its members, Local 43
caused the San Antonio Express and News to discriminate
against them in violation of Section 8(a)(3) of the Act and
so violated Section 8(b)(1)(A) and (2) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
3 Scofield [Wisconsin Motor Corp] v. N L R B, 394 U.S. 523, N L.R B
v Allis -Chalmers Mfg Co , 388 U S 175
4 N L R B v Allis-Chalmers, supra
5 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
THE REMEDY
Having found that Local 43 engaged in certain unfair
labor practices, it will be recommended that it cease and
desist therefrom and take affirmative action necessary to
effectuate the policies of the Act.
It is recommended that Local 43 offer Wallace H.
Weiters and Rudolph L. Rivers overtime at the San
Antonio Express and News by maintaining their names on
the overtime list in regular rotation with all other members
and employees in accordance with past practice.
It is also recommended that Local 43 make Wallace H.
Weiters and Rudolph L. Rivers whole for any loss of pay
they may have suffered since February 26, 1972, by reason
of the removal of their names from the overtime list. Loss
of pay shall be computed on a quarterly basis with interest
at 6 percent per annum.
Upon the foregoing findings and conclusions and
pursuant to Section 10(c) of the Act, I recommend issuance
of the following: 5
ORDER
Respondent Local 43, International Punting Pressmen
and Assistants Union of North America, its officers,
agents, and representatives, shall:
1. Cease and desist from removing the names of any of
its members from the overtime list maintained by it at the
San Antonio Express and News or any other employer
with whom it has a collective-bargaining contract, thereby
causing the San Antonio Express and News or any other
employer to violate Section 8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Restore and keep the names of Wallace H. Weiters
and Rudolph L. Rivers on the overtime list maintained by
it at the San Antonio Express and News on a rotating basis
and in accordance with past practice.
(b) Make Wallace H. Weiters and Rudolph L. Rivers
whole for any loss of pay they may have suffered by
removal of their names from the overtime list in the
manner set forth in "The Remedy."
(c) Post at its business office or offices at San Antonio,
Texas copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the Regional
Director for Region 23, shall, after being duly signed by
Respondent, be posted immediately upon receipt thereof,
in conspicuous places, and be maintained for 60 consecu-
tive days. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Forward copies of said notice, after having been duly
signed, to the Regional Director for Region 23 for posting
by the San Antonio Express and News at its place of
business at San Antonio, Texas, if it is so willing.
(e) Notify the Regional Director for Region 23, in
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
LOCAL 43, PRINTING PRESSMEN 289
writing, within 20 days from the date of this Decision, what steps it has taken to comply herewith.?
7 In the event that this recommended Order is adopted by the Board from the date of this Order, what steps the Respondent has taken to comply
after exceptions have been filed , this provision shall be modified to read: herewith."
"Notify the Regional Director for Region 23, in writing , within 20 days