Evening News Association

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Evening News Association and Local 372, Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Ind. Case 7-CA-7345 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On January 7, 1970, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in unfair labor practices and recom- mending that it cease and desist therefrom, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint . Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision together with a supporting brief, the Charging Party filed cross-exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent filed a brief in answer to exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- ' In the absence of exceptions thereto , we adopt, pro forma, Trial Examiner's finding that Respondent violated Sec 8(a)(1) and (4) of the Act by conditioning compliance with the arbitrator 's award on the withdrawal of the charges which were pending in this proceeding Contrary to the Trial Examiner, we believe that a statement by Respond- ent to its employees that it will not interfere with their right to resort to Board processes in future labor disputes will have a salutary effect in guaranteeing to its employees the free and full exercise of their Sec 7 rights Accordingly, our order shall provide for the customary notice posting tions Board adopts as its Order the recommended Order of the Trial Examiner, as modified herein, and hereby orders that Respondent, Evening News Association, Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as so modified: 1. Add the following to the Trial Examiner's recom- mended Order: "Evening News Association, its officers, agents, successors, and assigns, shall take the following affirm- ative action which the Board finds necessary to effectu- ate the policies of the Act: "(a) Post at its "The Detroit News" plant in Detroit, Michigan, copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region 7, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt there- of, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.' "(b) Notify the Regional Director for Region 7, in writing, within 10 days from the date of this Order, what steps have been taken to comply here- with." IT IS HEREBY FURTHER ORDERED that the com- plaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. 3 In the event that this Order is enforced by a Judgment of the 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 " ' Member McCulloch is of the view that the Trial Examiner 's recommen- dation that no notice posting be required in this case is based on good and sufficient reasons He would, therefore , go along with the Trial Examiner in this respect APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT condition our compliance with the arbitrator's award on the withdrawal of unfair labor practice charges filed against us, or in any manner interfere with the efforts of our employees or their representatives to resort to the processes of the National Labor Relations Board. 185 NLRB No. 70 EVENING NEWS ASSOCIATION 431 WE WILL NOT in any like or related matter interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations , to join or assist the above-named Union, or any other labor organ- ization, to bargain collectively through represent- atives of their own choosing , to engage in concert- ed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by the proviso to Section 8(a)(3) of the Act. EVENING NEWS ASSOCIATION (Employer) II THE ALLEGED UNFAIR LABOR PRACTICES A Background-the Contract and the Strikes For many years the Teamsters has been the bargaining representative of certain employees of the Company (those engaged primarily in distribution ) while other unions have represented employees engaged in mechanical production and in other aspects of the Company's business. A Teamsters contract expired on November 15, 1967, and the employees represented by that union went on strike at that time, The Teamsters and the Company reached a new agreement on March 15, 1968, but the employees represented by the Teamsters could not then return to work because the Company was shut down as the result of strikes by other crafts. On August 5, 1968, the Company resumed publica- tion, as all the employees , including those represented by the Teamsters, returned to work. The Teamsters contract was made effective as of that date. 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 compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 313-226- 3200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U REEL, Trial Examiner : This case, heard at Detroit, Michigan , on October 20, 1969 , pursuant to a charge filed the preceding May 21 and a complaint issued August 8, presents issues arising out of Respondent's action in deducting from vacation credits otherwise due in 1969 a pro rata amount based on strike idleness in 1968. Upon the entire record, and after due consideration of the briefs filed by General Counsel and by Respondent, I make the following. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, herein called the Company, a Michigan corporation engaged in the printing, sale, and distribution of a large Detroit daily and Sunday newspaper , "The Detroit News," is manifestly and admittedly an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. See, e.g., 154 NLRB 1494, 1506-07. The Charg- ing Party, herein called the Teamsters, is a labor organization within the meaning of Section 2(5) of the Act. Both the contract which expired in November 1967 and the contract which became effective in August 1968 provided the varying amounts of vacations during a calendar year depending upon the number of years of continuous service, e.g, 2 weeks for employees of 1 year but less than 5 years' service, 3 weeks for those whose service was between 5 and 25 years, etc. On December 11, 1968, the Company notified the employees represented by the Teamsters that their vacation allowance for 1969 would be prorated by deducting therefrom the strike period from January 1, 1968, through August 5 , 1968, e g, employees with over 5 years' service would receive 8 days' vacation instead of 15. B. The Arbitration Proceeding and its Aftermath The Teamsters filed a grievance with respect to the denial of full vacation pay, which culminated in a hearing before Arbitrator Casselman in February 1969. The charge initiating this proceeding before the Labor Board was filed in May 1969, while Casselman had the matter under advise- ment. On July 14, 1969 , Casselman issued his award , holding that the Company had violated the current agreement insofar as the Company withheld vacation credit for the period between March 16, 1968, and August 5, 1968 (i.e., the period in which the Company and Teamsters were in accord but the Company was shut down by the strike of other crafts), but that the Company had not violated the agree- ment by prorating the vacation allowance for the period prior to March 16, 1968. On July 21, 1969, Company counsel wrote counsel for the Teamsters in part as follows . . we have no intention of not abiding by the award of Mr . Casselman in connection with vacation ' General Counsel in his brief states that "the arbitration opinion in fact did not interpret the contract " The entire opinion from its opening statement of the issue to the concluding " award" shows the contrary 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay On the other hand, we must of necessity condition our compliance with the award on withdrawal of the pending charge by the Teamsters with the National Labor Relations Board. The purpose of that charge, were it to come to complaint, are identical with the relief sought under the contract, i.e., payment of full vacation credits premised on the finding of an unfair labor practice. Quite obviously, I cannot advise my client, any more than you could yours, to risk re- litigation of the identical issues in a different forum with the same result and in effect double payment The complaint in this case, which issued August 8, 1969, alleged that the Company had violated Section 8(a)(1) and (3) by withholding the vacation credits, and further violated Section 8(a)(1), (3), and (4) by the letter quoted above. Thereafter, and notwithstanding the position taken in the letter, the Company complied with the Casselman award, and allowed the employees here involved vacation credit for the period between March and August 1968 C Concluding Findings Whatever vacation rights the employees have flow initially out of their contract, not from the statute. Here the contract has been authoritatively construed by the agency created by the parties for that purpose as authorizing the prorating of the vacation because of the absence for the period between January 1 and March 15, 1968. Under settled principles the Board should accept this construction of the contract. See, e g , International Harvester Co, 138 NLRB 923, affd 327 F.2d 784 (C A. 7), cert. denied, 377 U S 1003. Far from being in derogation of statutory rights, the holding of the arbitrator appears in accord with the Board's construction of the statute See General Electric Co., 80 NLRB 510, 511-512, Kimberly-Clark Corp., 171 NLRB No. 82, Illinois Bell Telephone Co., 179 NLRB No. 119 2 Indeed, as the right to vacation pay is wholly contractual, a finding that no such pay was due under the contract would seem to preclude a finding that a failure to pay violated the statute. General Counsel failed in his attempt to show that the Company here departed from its prior practice of giving vacation credit to employees on strike. The evidence as to past practice showed that while the employees represented by the Teamsters had been given such credits, the strikes in question were not called by the Teamsters, and the employees were thereafter in the position of being unable to work through no action of their own With respect to the period after March 15, 1968, the employees represented by Teamsters were entitled to vaca- ' Tex-Tan Welhausen Company, 172 NLRB No 93, enfd 419 F 2d 1265 (C A 5), is distinguishable for the reasons stated by Trial Examiner Singer in Illinois Bell, supra (TXD) as well as for those suggested by the Fifth Circuit in Tex-Tan General Counsel would distinguish General Electric and Kimberly-Clark as dealing with the earning of "vaca- tion credits" rather than the actual prorating of vacations Whatever might be said for this distinction as an original proposition (and it seems inapplicable to //A• i, H, 1/ it is unavailing in the light of the arbitrator's construction of the instant contract tion credits under the contract as construed by the arbitrator. The failure of the Company to grant the credits for that period (until compelled to by the arbitrator 's award) was based on its erroneous view of its contractual obligation. If, as we have seen, there was no violation of the statute in the Company's prorating of the vacation for the time these men were on strike, then I find it difficult to se- any violation of the statute in the prorating when they were absent because others were on strike ' But I find it unnecessary to reach this question , for even assuming, arguendo, a violation of the statute, I believe the Board should stay its hand here as the parties have had a full and fair resolution of the dispute by a duly constituted arbitrator . The principles of International Harvester, supra, apply equally to cases in which the arbitrator upholds the grievance See Howard Electric Co, 166 NLRB No. 62; Edward Axel Roffman Associates, Inc., 147 NLRB 717, 724. The letter from Company counsel to Union counsel condi- tioning compliance with the arbitrator 's award on the with- drawal of the charge in this case plainly violated Section 8(a)(4) and ( 1) of the Act in that it threatened to withhold benefits from employees because their representative had filed a charge under the Act.' The Company' s withdrawal from that untenable position does not moot the case Cf Walling v . Helmerich, 323 U.S. 37, 42-43. The fact that I regard the charge as ill-founded is likewise no defense, for the protection of Section 8(a)(4) is not limited to meritori- ous charges. CONCLUSIONS OF LAW 1. Respondent by conditioning compliance with an arbitra- tor's award on the withdrawal of a charge filed under the Act engaged in an unfair labor practice affecting com- merce within the meaning of Section 8(a)(4) and (1) and Section 2(6) and (7) of the Act 2. Respondent has not engaged in any other unfair labor practices warranting remedial relief. THE REMEDY I shall order the Company to cease and desist from the unfair labor practice found above. Because the violation is isolated, was quickly cured, and was contained in a letter addressed solely to counsel rather than to the employ- ees, I see no need for the posting of a notice in this case. I also note that the charge in question proved ground- less, that the violation here was tangential to the main ' It could be argued that the prorating of vacation because of absence in the post-March 15 period was an unlawful reprisal for the pre-March 15 strike The evidence does not establish such motivation, but instead suggests a failure of the Company to recognize a difference in the two periods ' The Company ostensibly took this position to avoid the possibility of double payments , and indeed repeats that contention in its brief It is all but unthinkable that experienced counsel would be unaware of the Board 's longstanding policy of not requiring repetition of affirmative acts remedying unfair labor practices "The qualification, 'if it has not already done so ' is implicit in every direction for remedial action under the statute " Sears, Roebuck and Company, 123 NLRB 1236, 1271 EVENING NEWS ASSOCIATION issue, and that as the parties have reached a new contract a notice posting would be more apt to reopen old wounds than to promote industrial peace. Accordingly, upon the foregoing findings and conclusions and upon the entire record, I recommend pursuant to Section 10(c) of the Act, issuance of the following- 433 2 In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights -under Section 7 of the Act 3. In any manner interfering with the efforts of its employees or their representatives to resort to the processes of the National Labor Relations Boards ORDER Respondent, Evening News Association, its officers, agents, successors , and assigns, shall cease and desist from. 1. Conditioning the performance of any act on its part on the withdrawal of charges filed against it with the National Labor Relations Board ' 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, recommendations, 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