Providence Stereotypers Union

National Labor Relations Board - Board Decisions

Mar 5, 1973

202 N.L.R.B. 195 (N.L.R.B. 1973)

PROVIDENCE STEREOTYPERS UNION 195
Providence Stereotypers' Union No. 53 a/w Interna-
tional Stereotypers' and Electrotypers' Union of
North America, AFL-CIO and The Evening Call
Publishing Company. Case 1-CB-2029
March 5, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On November 15, 1972, Administrative Law Judge
Ivar H . Peterson issued the attached Decision in this
proceeding . Thereafter , Respondent Union filed
exceptions and a supporting brief , and the Charging
Party and General Counsel filed briefs in support of
the Decision of the Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
Union of North America, AFL-CIO, herein called the
Respondent . In substance , the complaint , as amended,
alleged that the Respondent , commencing on or about
March 31 and continuing to date , restrained and coerced
the Company in the selection of its representatives for the
purposes of collective bargaining and the adjustment of
grievances in that on or about May 16 it , through its agent,
Thomas Bagley, assessed fines totaling $105 against
Richard Fontaine , a supervisor of the Company, and, since
May 16 , has refused to refer Fontaine to employers, other
than the Company, for "extra work " as a journeyman, as
had been its regular practice . Additionally, the complaint
alleged that since on or about July 11, the Respondent has
threatened Fontaine with further disciplinary action by
summoning him to a meeting of the Respondent's
executive board to explain why he has not complied with
its prior order to pay fines . These acts, according to the
complaint , are violative of Section 8(b)(1)(B) of the Act
and, in view of the fact that the Company meets the
Board 's jurisdictional standards , come within the terms of
Section 2(6) and (7) of the Act. The Union filed an answer,
denying the commission of any unfair labor practices.
On the basis of the entire record in the case , including
my observation of the witnesses as they testified and a
careful consideration of the briefs filed by counsel for the
parties on October 24, 1 make the following:
FINDINGS OF FACT
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 Respondent, Providence Stereo-
typers' Union No. 53 a/w International Stereotypers'
and Electrotypers' Union of North America,
AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge it is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings.
We note that, due to a typographical error, the Administrative Law
Judge in quoting Sec 8(b)(1)(B) erroneously refers to "employee" instead
of "employer"
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: I heard
this case in Boston, Massachusetts, on September 21, 1972,
based on charges filed by The Evening Call Publishing
Company, herein referred to as the Company, on May 26,
against the Respondent, Providence Stereotypers' Union
No. 53 a/w International Stereotypers and Electrotypers
202 NLRB No. 26
1. JURISDICTION
The Company is a Rhode Island corporation engaged in
the publication of a daily and Sunday newspaper, serving
the greater Woonsocket, Rhode Island, area. Admittedly, it
comes within the jurisdictional requirements of the Board.
I find that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and, also, that the Union is
a labor organization within the meaning of Section 2(5) of
the Act. In its answer, the Union admitted that the persons
listed in paragraph 7(a) of the complaint, some seven in all,
occupied positions within the Union and are agents of the
Respondent.
II. THE ALLEGED UNFAIR LABOR PRACTICES
For some 31 years the Union has represented a
bargaining unit consisting of the Company's stereotype
employees and, at present, the parties have a collective-
bargaining agreement. Fontaine, foreman of the stereotype
department and a member of the Union, thought it
necessary on March 8, 1972, to verbally warn Bertrand
Boiteau for speaking at length on the telephone during
production time. Later, on March 23, Fontaine again
warned Boiteau for using the telephone during production
time. He issued the warning in writing. Boiteau, apparently
displeased with these warnings, filed a complaint with the
Union, which later summoned Fontaine to appear before a
trial committee. Fontaine declined to attend the hearing
and, in his absence, Boiteau's charges were upheld and the
trial committee recommended that Fontaine pay a fine of
$100, by 8 p.m. of June 30. The membership of the Union
ratified this decision and additionally fined Fontaine $5 for
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failing to appear before the trial committee. Fontaine
refused to pay the fines, which resulted in his being
summoned by the executive board of the Union to explain
why he had not complied with the Union membership's
decision.
In consequence of Fontaine's refusals, the Union has not
returned his working card which he customarily sends
along with his dues in compliance with the regular practice
Moreover, Fontaine received no extra work shifts through
the Union from June 3 until the beginning of August.
Before June 3, he had received two to three extra shifts per
week at other newspapers in the area. Fontaine inquired of
Charles D. Walker, president of the Union, why he no
longer received extra work, and Walker replied that the
reason was that Fontaine had 'not paid his fines. Fontaine,
however, pointed out that the extra work had stopped on
June 3 and that his fine was not due until June 30.
There is no question that Fontaine occupies a superviso-
ry position. Fontaine performs the same duties as his
predecessor, Edward Bartnick, performed. While Bartnick
was employed as foreman of the stereotype department, a
question arose as to whether he was a supervisor. In
consequence, a unit clarification was requested from the
Board, which found that Bartmck was indeed a supervisor.
Fontaine has four men under his direction, and he has the
authority to hire and fire and, in fact, has hired employees
without consulting his supenors. He also has authority to
grant overtime and to move employees from job to job,
and also can discipline employees. In addition, Fontaine
has the authority to and, in fact, has handled grievances.
The collective-bargaining agreement provides that the
foreman of the stereotype department is solely responsible
for his department and may supervise the hiring and firing
of all employees within that department. Upon these facts,
not contradicted, it is plain and I find that Fontaine is a
supervisor within the meaning of Section 2(11) of the Act.
One of Fontaine's responsibilities is to get the newspaper
out on time. It is obvious, therefore, that when a stereotype
department employee is away from hisjob the publication
process is delayed. Boiteau was aware of this as he had
been so informed by Fontaine. Boiteau, as acting president
of the Union, had told Fontaine that in that capacity he
would on occasion have to use the telephone. Fontaine, so
Boiteau testified, replied that this was permissible "as long
as [the conversations] were not too lengthy or stopped
production." Boiteau received a call on March 28, which
took him away from hisjob for approximately 15 minutes.
Fontaine verbally warned Boiteau about this. On March
22, Boiteau spent some 15 to 20 minutes on the telephone.
Credible testimony establishes that production was slowed
down on these occasions.
As previously stated, Fontaine received no extra shifts
for 9 weeks beginning June 3, and, for the weeks of August
19 and 26, he received only one extra shift per week.
According to Fontaine, Union President Walker told him
that the Union was refusing to give him these additional
work opportunities because Fontaine had failed to pay the
fines Walker claimed that he did not know the reason that
Fontaine had been denied additional work and stated that
Wiley, the hiring chairman for the Union, was responsible.
Wiley did not appear as a witness Walker testified that the
other reasons he asserted for the denial of work to
Fontaine were only speculations. Thus, Walker implied
that Fontaine may have been cut off because he had more
shifts than some other employees. However, he was unable
to explain why several other members of the Union who
had worked more shifts than Fontaine were not cut off and
why Fontaine was the only employee member affected.
Conclusions
Upon the foregoing facts, I conclude and find that
Fontaine was denied work opportunities because he had
failed to pay the fines levied against him by the Union.
Section 8(b)(l)(B) provides that it is an unfair labor
practice for a labor organization or its agents "to restrain
or coerce an employee in the selection of his representative
for the purposes of collective bargaining or the adjustment
of grievances." The Board and the courts have interpreted
this provision to prohibit a union from taking any action
against a supervisor that might then or later inhibit him as
the representative of his employer. Here, it seems clear,
that if the Union is permitted to discipline Fontaine, in a
situation of this type, Fontaine would, as counsel suggests,
"of necessity have second thoughts before taking any
future actions as Company representative, for he will know
that if for some reason the Union disapproves of his action,
it could fine, or expel, or reprimand him." In support of
this theory, the Company cites Detroit Newspaper Printing
Pressmen's Union No. 13, 192 NLRB No. 21, San Francisco
Typographical Union No. 21, 192 NLRB No. 77, Dallas
Mailers Union v. N.L.R.B, 445 F.2d 730 (C.A.D.C.), and
Meatcutters Local 81 v. N.L.R B, 458 F.2d 794 (C.A.D.C.).
In his brief, counsel for the Respondent argues that if the
position of Fontaine is accepted, then he would be forever
immune from union discipline, and that this would be so in
spite of the fact that he continues to work as an ordinary
journeyman union member outside of the Woonsocket
plant. He further contends that the Union "attempted in
good faith to distribute extra work on an equitable basis,
recognizing its responsibility" to substitute workers "who
depended on the extra shifts for their livelihood."
In the summary of his brief, counsel for the Union states
that Fontaine "may not on the one hand demand union
benefits such as $130 a week in extra pay by working extra
shifts, and on the other hand state that he is beyond union
jurisdiction. So long as he chooses to keep a foot in both
camps he must accept the responsibilities that accompany
such a peculiar stance. Having chosen not to appear and
defend against Boiteau 's claim, having chosen not to avail
himself of the internal union appellate procedures regard-
ing distribution of extra work, but at the same time having
demanded that he receive sufficient extra work to stay
within the top 10 recipients of the Union, he must accept
the decision of an impartial board that he has wronged a
fellow union member." Finally, counsel's brief states that
the employer herein "has completely failed to demonstrate
the wrongful intent on the part of the union" required by a
number of cases previously cited.
While there may be some basis for the attitude of other
members of the Union concerning Fontaine's extra work, I
am satisfied that the record demonstrates that the Union
took the action it did against Fontaine because of the
PROVIDENCE STEREOTYPERS UNION 197
reprimand given Boiteau. Thus Fontaine's written warning
to Boiteau was signed "Stereotype Foreman, Woonsocket
all." The record clearly demonstrates that Fontaine had
authority to handle grievances as is demonstrated by his
handling of the dispute concerning manning requirements
involving Arthur Green. Without belaboring the matter, I
conclude and find that the Respondent Union violated
Section 8(b)(1)(B) of the Act by fining Fontaine and by
failing to refer him for extra work.
I further find that in order to remedy the unfair labor
practices found and its effect on members other than
Fontaine, it is appropriate that the Respondent Union post
a notice, and also mail a copy thereof to each of its
members, and I shall so direct.'
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Union set forth above,
occurring in connection with the operations of The
Evening Call Publishing Company as described above,
have a close, intimate , and substantial relation to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Evening Call Publishing Company is an employ-
er in commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Providence Stereotypers ' Union, No. 53, a/2 Inter-
national Stereotypers ' and Electrotypers ' Union of North
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Thomas B. Bagley, secretary of the Respondent
Union, is an agent of Respondent Union within the
meaning of the Act.
4. By fining Richard Fontaine and restricting his
assignment to extra work , the Respondent Union engaged
in unfair labor practices within the meaning of Section
8(b)(1)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
a selected representative of The Evening Call Publishing
Company for the purposes of collective bargaining or the
adjustment of grievances.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Rescind all fines and all other disciplinary action
against Richard Fontaine, and excise and expunge from all
records or other evidence in the Respondent's files
connected with or related to the charges against Richard
Fontaine arising out of or connected with the warning
given by Fontaine to Bertrand Boiteau.
(b) Return to said Richard Fontaine his working card
and make him whole for any loss of "extra work" resulting
from the disciplinary action taken against him.
(c) Advise Richard Fontaine, in writing, that Respondent
has taken the aforesaid action in compliance with
paragraph 2(a) above, and that it will cease and desist from
the actions forbidden in paragraph 1(a) and (b) of this
Order.
(d) Furnish the Regional Director for Region 1, in
writing, signed copies of said notice for posting by The
Evening Call Publishing Company, if willing, in places
where notices to employees are posted.3 Copies of said
notice, to be furnished by the Regional Director shall, after
being signed by a duly authorized representative of the
Respondent, be forthwith returned to the Regional
Director for disposition by him.
(e) Post at its business offices, meeting halls, and all
other places where notices to members are customarily
posted, copies of the attached notice marked "Appendix."
(f) Mail to each of its members, by certified mail, a copy
of the attached notice marked "Appendix."
(g) Notify the Regional Director for Region 1, in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.
The mailing requirement is deemed necessary in order that members
actually receive notice as it is not uncommon for only a small percentage of
union members to attend membership meetings
2 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes
3 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 "
ORDER2
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that the Respondent, Providence
Stereotypers' Union No. 53, a/w International Stereotyp-
ers' and Electrotypers' Union of North America,AFL-CIO,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) In any manner restraining or coercing The Evening
Call Publishing Company in the selection of representa-
tives chosen by it for the purposes of collective bargaining
or the adjustment of grievances.
(b) Fining or otherwise disciplining Foreman Richard
Fontaine because of his conduct in performance of work as
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated Federal law by fining Richard
Fontaine $ 105 and restricting his "extra work" assignments
and by threatening to discipline him, you are hereby
notified-
WE WILL NOT threaten to inflict or in fact inflict,
upon any member disciplinary action because he
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercises the rights guaranteed him in Section 7 of the
National Labor Relations Act, as amended.
WE WILL NOT in any manner restrain or coerce The
Evening Call Publishing Company in the selection of
representatives chosen by it for the purposes of
collective bargaining or the adjustment of grievances.
WE WILL NOT fine or otherwise discipline Foreman
Richard Fontaine because of his conduct and perform-
ance of work as the selected representative of The
Evening Call Publishing Company for the purposes of
collective bargaining or the adjustment of grievances.
WE WILL rescind all fines and all other disciplinary
action and excise and expunge all records or other
evidence in our files connected with or related to the
charges and proceedings against Richard Fontaine
arising out of or connected with his warning of Betrand
Boiteau.
WE WILL return to Foreman Richard Fontaine his
working card and make him whole for any loss of
"extra work" resulting from the disciplinary action
taken.
Dated By
PROVIDENCE STEREOTYPERS'
UNION No. 53, A/W
INTERNATIONAL
STEREOTYPERS AND
ELECTROTYPERS UNION OF
NORTH AMERICA,
AFL-CIO
(Labor Organization)
(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 concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, Seventh Floor, Bulfinch
Building, 15 New Chardon Street , Boston, Massachusetts,
02114, Telephone 617-223-3330.