Detroit Free Press

DETROIT FREE PRESS Detroit Free Press, Inc. and Gerald M. Kaye, and Laurence R. Dumouchelle. Cases 7-CA-15199(1) and 7-CA- 151992(2) September 25, 1979 DECISION AND ORDER BY MEMBERS PENEL I.O MURPHY, AND TRUESD)ALE On June 20, 1979, Administrative Law Judge Ber- nard Ness issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief, and Respondent filed a brief in opposition to the General Counsel. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE BERNARD NESS. Administrative Law Judge: Upon unfair labor practice charges filed by Gerald M. Kaye on May 26. 1978, in Case 7-CA- 15199(l) and by Lawrence R. Dumou- chelle on May 30. 1978, in Case 7-CA-15199(2), against Detroit Free Press, Inc..' herein called Respondent. a con- solidated complaint issued on July 14, 1978. The primary issues are whether Respondent violated Section 8(a)( 1) and (3) of the Act by disciplining the charging parties for their actions in protesting alleged abnormally dangerous working conditions. Respondent has denied the commission of any unfair labor practices. The hearing was held before me on December 13-14. 1978, at Detroit, Michigan. Upon the entire record and my observation of the wit- nesses, and after due consideration of the briefs filed by the General Counsel and Respondent. I make the following: I The name of Respondent was corrected at the hearing. FIND[IN(S ()F FAIr I. THE BUSINESS OF RESP()Nl)NI Respondent, a Michigan corporation, with its principal office in Detroit. Michigan, is engaged in publishing a daily and Sunday newspaper and in related operations. In the course and conduct of its publishing operations, during the calendar year 1977. a representative year. Respondent had a gross revenue in excess of $1.000000,. held membership in or subscribed to various interstate news services. and adver- tised nationally sold products, the revenue from which ex- ceeded $500,000. During this same period. it purchased and caused, to be shipped materials to its Detroit. Michigan. facility valued in excess of $500.000 from points outside the State of Michigan. The parties agree. and I find. that Re- spondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE I.ABOR ()R(iANIZAIIN INOI().V1:) The parties agree. and I find. Detroit Newspaper Printing and Graphics Communications Union of North America. Local 13, AFL-CIO, herein called the Union. is a labor organization within the meaning of Section 2(5) of the Act. III. IHE At.t.E(GEI) tNAIR I.ABOR PRA( II(IS A. Introduction Respondent publishes a newspaper in the Detroi:. \Michi- gan. area. The issues in this case stem from a work stoppage on the morning of May 25. 1978, while an edition of the newspaper was being run through the press. The pressroom employees are represented by the Union. The contract in effect between the parties contains the following provision: No employee or employees shall engage in an\ walk- out, strike or boycott, or quit in sufficient numbers to hamper or interfere with prompt and regular publica- tion during the life of this agreement. Disciplinary action was imposed upon Kaye and Dumou- chelle for their participation in protesting against the con- tinued operation of press 12 because of a condition then existing in the face of the no-strike clause. The basic con- tention of the General Counsel is that an abnormall b dan- gerous work condition existed within the meaning of Sec- tion 502. and the no-strike clause did not remove their activity from the realm of protected Section 7 activits. The incident which resulted in the imposition of the disciplinarN action against the two individuals occurred when a safe button on one of the control boxes on unit 29 of press 12 was inoperable. B. The Operation of the Prexs.set There are seven presses in the pressroom. 1The pressroom occupies 2-1 /2 floors. A press is a configuration of a specific number of units and a folder. Press 12 is a cnfiguration of six units, numbered 25 through 30. and one filder. The number of pages to be printed determines the number of 245 NLRB No. 52 335 DECISIONS OF NATIONAL LABOR RELATIONS BOARD units to be hooked up to the folder. A unit holds plates which print the newspaper's contents on a roll of paper, known as the web. The folder is that part of the press that folds the paper and collects it. Then the paper is sent on a conveyor to the mailing room. The movement of the presses is manually controlled by the use of control boxes contain- ing buttons. The flow of newsprint originates in the reel room located in the basement, and the paper then is led up to the floor level of the pressroom and threaded through the units. The catwalk is above the units at the superstructure of the press which gives the pressmen access to finish threading through the unit and then on to the folder. The press may be at a complete stop or may be moving at various speeds. There are 28 control boxes for each press. There are two control boxes on each unit, one on each side of the unit. Each box contains six buttons. Three of the buttons control the speed of the press (fast, slow, and jog or inch). The stop button is used to stop the press. The safe button applies a "safe" condition to the press. When the safe button is depressed or engaged, the press remains in the status quo condition. If the press is stopped and then the safe button is engaged, the entire press will remain stopped. If the press is running at one of the speeds and the safe button is then engaged, the entire press remains at the same speed and could not be increased. The sixth button. the run button, is used to disengage the safe button so that the speed of the press can be increased. When the safe but- ton is engaged on a particular control box, a red light ap- pears on each unit, indicating a safe button has been en- gaged somewhere on the press. At the same time, a yellow light also appears on the control box where the safe button was applied, thus showing the pressmen where the safe was applied. Once a safe button is engaged on a control box, it cannot be disengaged from another control box. The incident on the morning of May 25 involved the malfunction of the safety button on Unit 29 during the webbing process-the threading of the newsprint roll through the press. At points in the webbing process, the pressmen have to reach into the unit with their hands. Dur- ing this phase, the press is stopped with the safe button engaged. When the webbing process clears the units and reaches the catwalk, the press is put on a "slow walk." by activating the job or inch button and then engaging the safe button so that the speed of the press cannot be increased. During this phase, while the press is moving, the pressmen do not have their hands in the unit. C. The Work Stoppage Dumouchelle, employed by Respondent about 6 years as a pressman, was working on the night shift on press 12 in May 1978. On May 24 he was the "man in charge" of press 12.' About I a.m., on May 25, the web broke on units 28 and 29. Dumouchelle and the other pressmen went through the normal procedure of putting the web on unit 29 back into the press, and then the press was started up slowly to feed the tape and paper into the folder. The tape and paper 2 He kept production records for the parts and recorded the number of employees working. on unit 29 broke again. Dumouchelle hit the stop button and attempted to engage the safe button, but it would not depress. Dumouchelle then engaged the safe button on unit 30 and continued the webbing process while the press was stopped.) A stage was then reached when the press would be put on slow speed to lead the tape and paper fully into the fblder.' Assistant pressroom foreman Ferriby noticed the pressmen on the crew at unit 29 were idle. He asked Dumouchelle what the problem was. Dumouchelle told him the safe button on unit 29 was inoperable. Ferriby di- rected Dumouchelle to continue webbing and said he would get the electrician. Ferriby was unable to locate an electrician; he returned to press 12 and covered the control box on unit 29 with a rag to indicate the box was inoper- ative. Ferriby then directed Dumouchelle to continue web- bing. Dumouchelle refused. He said the box was inoper- ative and he wanted to consult with the safety chairman.' Ferriby left to call his supervisor. Kaye and Cynar 6 came over to press 12 and were told of the problem by Dumou- chelle. Kaye and Cynar then left to seek out Ferriby in the office. While they were talking with Ferriby. Laurie Scrase, Respondent's assistant pressroom superintendent, having been infbrmed the crew had ceased webbing, came over the press 12. Scrase ordered Dumouchelle to complete the web- bing and said he would have the safe button fixed before the press was run.7 He told Dumouchelle that if he felt he had to the safe button operating. the button on unit 30 could be used. In the meantime, Kaye protested by Ferriby that the webbing operation should not continue while the safe button was inoperative and this malfunction created an unsafe condi- tion. They then returned to press 12 as Scrase was directing Dumouchelle to continue webbing. Kaye intervened and said the malfunctioning safe button was inoperative and this was malfunctioning safety equipment that must be re- paired before the web operation could continue. He told Scrase the crew would not continue the webbing until the safe button was repaired and operative. Scrase told Kaye and Dumouchelle that the press had been operated in the past with broken boxes. Kaye stated that he understood it had been done in the past but that did not mean the men would continue to work under these conditions. Scrase then told Kaye and Dumouchelle they could be subjected to dis- ciplinary action. At this time an electrician appeared on the scene and repaired the control box. It took about 12 min- utes to make the repair. He substituted parts taken from another control box on the catwalk. A rag was then put on the other control box signifying it was now inoperable. Af- ' The lights went on when Dumouchelle engaged the unit 30 safe button and he knew it was functioning properly. ' Unit 29 was the closest unit to the folder. I Gerald Kaye, then working on press 10, was the Union's safety chair- man. The Unions' assistant chapel chairman on duty at the time. Scrase credibly testified crews do not always use the safe button when webbing the press. Dumouchelle testified he always activated the safe button when webbing a unit but did not think all pressmen did. He further testified he would not have used the safe button when the press was on slow speed none of the other pressmen would increase the speed "because at that point everybody is working on leading this tape, and there would be nobody avail- able to put the press on speed." He stated the only time a pressman would disengage the safe button put on by another pressman is when directed by a foreman. 336 DETROIT FREE PRESS ter the repair was made, Kaye told the men to continue their work which they did. Scrase testified the newspaper edition was 42 minutes late in getting out. He attributed about 32 minutes to the production time lost. It should be noted, however, it took the electrician about 12 minutes to make the repair and, as stated above, the press would not have been put in production until the button was repaired. Testimony of Respondent's electrical superintendent. Al- fred Singer. established that the malfunction of the safe but- ton was a mechanical failure not electrical. The operation of the safe buttons on the other control boxes would not be affected by the mechanical failure of the unit 29 safe but- ton. The only way the safe button on unit 30 could he disengaged was by activating a button from the same unit 30 control box, In the event of an electrical malfunction. the press would fall into an automatic "fail safe" condition. i.e., if the press were in motion, the speed could not be increased, or if the press were motionless. it could not be started. Kaye was suspended for 10 days for countermanding Scrase's order for the men to continue the webbing opera- tion, causing the press to be late.' Dumouchelle was given a written reprimand for refusing to continue the webbing op- eration . Discussion and Analysis The complaint alleges that disciplinary action was im- posed upon Kaye and Dumouchelle because they com- plained about the unsafe condition of the printing press being dangerous to life and limb, and Section 502 is appli- cable. Respondent contends the disciplinary action was im- posed because of an insubordinate refusal to work in viola- tion of the applicable no-strike provision of the existing collective-bargaining contract. Respondent further argues an abnormally dangerous condition did not exist and there- fore the activities of Kaye and Dumouchelle constituted a strike. The initial question to be determined is whether an ab- normally dangerous condition for work existed at the time the protest by the employees was made. It is settled that the test of whether a work stoppage qualifies for the exception provided by Section 502 of the Act is an objective rather than a subjective one.'0 The record does not support a find- ing that such condition existed. It is undisputed that the buttons on the control box, including the safe button, con- stitute an intergral part of its safety equipment system. However, the fact that the safe button on the unit 29 con- trol box was inoperative did not create an abnormally dan- gerous condition. As stated above, engaging the safe button on another control box would maintain the status quo of the press. When Dumouchelle became aware the safe but- ton on unit 29 could not be depressed, he activated the safe button on unit 30. When he saw the light appear, he was aware the unit 30 safe condition was engaged and function- ing properly. The only way the safe condition could be dis- I G.C. Exh. 4. 'G.C. Exh. 5. 1 Galeway Coal Companv v. niled Mine Workers. Distraci 4. Local 63301 414 U.S. 368 (1974). engaged was by activating a button fronm the same unit 30 control box. Dumouchelle then continued the webbing pro- cess as he normally would have had there not been a. mal- function of the unit 29 sate button. And, as the record shows, the past practice was that pressmen would web even without activating the safe button. At the point when Dumouchelle refused to continue webbing, the press was to be in a slow movement and the webbing process was in a stage where a pressman would have his hands in the mov- ing press. However, Dumouchelle said he would not have seen fit to apply the safe button at that stage of the webbHing process. The (iGeneral Counsel further argues that. een it the charging parties engaged in a work stoppage. such stoppage did not fall within the scope of the no-strike clause de- scribed above. The General Counsel, in her brief takes the position that the stoppage in the wvebbing process as of short duration. and the record does not show the stoppage interfered "with prompt and regular production." She re- fers to Scrase's testimon that the webbing still to be done amounted to about 2 minutes while press 12 was out of service for about 32 minutes. However, Scrase also testified that while the electrician worked on the unit 29 control box. which took about 12 minutes, the pressmen concurrently could have been webbing on linit 28. which would hare taken about 10 minutes. I find the Neport .vw. case' cited b the General Counsel distinguishable from the in- stant case. In the cited case. the Board found the employees did engage in a work stoppage of approximatel 20 minutes duration while they waited for a response fron manage- ment as to whether they would he sent home because of the cold weather. The Board found their action was not to put pressure on the emplo'er to send them home or to ubvert the grievance and arbitration procedure hbut was purel, in- formational. The Board concluded the work stoppage did not violate the no-strike provision of' the contract. In the present case it cannot be said the sppage wi s intorma- tional hut rather designed to put pressure on Respondent to correct a working condition before he orkers ould re- sume working. I am not persuaded bh the General ('ounsel's further po- sition that Kaye and D)umouchelle were not disciplined for their participation in the work stoppage but. rather. the! were disciplined for "insubordination.'' i.e. in not following the orders of supervisors to work. The General (Counsel re- lies on a statement in Pressroom Superintendent Hale's affi- davit given to a Board agent during the investigation of the unfair labor practice charge prior to the issuance of the complaint. In the affidasit Hale stated "Neither l)umou- chelle nor Kaye were disciplined for causing a work stop- page. Rather the reason was due to countermanding a ore- man's direct order." I find the General C'ounsel's conrtention to be tenuous and lacking the merit. Hale's testimony in this connection during cross-examination was as ollows: Q. Alright. The final decision to discipline as yours? Is that right? A. The final decision, right. 11 Ne.por, .,ews Shiphll,,n :.m,. Ir ), D,tA ( r,.,ani. 236 NI RB 147(1 (1978) 337 ):('ISI()NS 0() NAIIONAI. I.ABOR RELATIONS BOARD Q. ol both employees? A. Yes. Q. And you disciplined the employees because they were insubordinate? Is that right? A. hat is correct. Q. Ihe fact that these employees had been involved in a work stoppage was not the reason you disciplined thelm, is it'? Am I correct'? ,. I[he fact that they were insubordinate and ca lsed a work stappage was. Q. Isn't it true that the work stoppage didn't play anI part il your decision? A. I heir being insubordinate in stopping it was. Q. Alright. listen to nmy question. Isn't it true that you did not discipline them for the work stoppage? A I would have to say no to that question. JI I)( t NI:ss: I ou want to explain Nour ansswer, go a head. 'I ii WIINi:ss: Well, they were insubordinate by not going to work and not allowing I will say not allow- ing Gerry and not allowing D)umouchelle going to work and (Gerry being member of' the union and an official of the union I think arry was more afraid of the union than he was of the office, and at that point I feel that they caused the work stoppage there. I know then did because they weren't working. I lale's letters to the indiiduals, given to them even before the unfair labor practice charge was filed, clearly refer to the refusal to work. 2 Accordingly. I find that Respondent's disciplinary action imposed upon Kaye and Dumouchelle for their participa- tion in a work stoppage in the face of the no-strike clause in the collective-bargaining agreement was not violative of the Act. I shall therefore recommend the complaint be dis- missed. CO)NiLUSI()NS O() LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent has not engaged in the unfair labor prac- tices alleged in the complaint. iUpon the basis of the above findings of fact, conclusions of law. and the entire record in this case, and pursuant to Section 10(c) of the Act I hereby issue the following recom- mended: ORDER ' The complaint is dismissed in its entirety. i(; C, xh. 4 and 5. In the event that no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulaions of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, he adopted by the Board and become its findings, cnclusions, and Order. and all objections thereto shall be deemed waived fIr all purposes.