Los Angeles Newspaper Guild Local 69

548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Los Angeles Newspaper Guild Local 69, AFL-CIO, CLC (Los Angeles Herald-Examiner, Division of the Hearst Corporation) and William W. Kennedy. Case 21-CB-3341 November 13, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN Upon a charge duly filed on, March 17, 1969, by William W. Kennedy, an individual, the General Counsel of the National Labor Relations Board, by the Regional Director of Region 21, issued a com- plaint and notice of hearing on May 23, 1969, against Los Angeles Newspaper Guild Local 69, AFL-CIO, CLC. The complaint alleged that the Respondent Union had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the National Labor Relations Act, as amended, by imposing a fine of $7,139.60 plus costs of $37.41 on Kennedy because he had continued to perform work and crossed the Respondent's picket line at the Los Angeles Herald-Examiner. On June 3, 1969, the Respondent filed an answer denying the commission of any unfair labor practices. On July 18 and 29, 1969, the parties executed a stipulation of facts and a motion to transfer proceed- ings to the Board by which they waived a hearing before a Trial Examiner and the issuance of a Trial Examiner's Decision and Recommended Order and agreed to submit the case to the Board for findings of fact, conclusions of law, and an order, based upon a record consisting of the stipulation of facts and the exhibits attached thereto. On August 4, 1969, the Board approved the stipulation of the parties and ordered the case transferred to the Board, granting permission for the filing of briefs. Thereafter, the General Counsel and the Respondent filed 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 powers in connection with this case to a three-member panel. Upon the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the following: FINDINGS OF FACT 1. JURISDICTION The Hearst Corporation, whose principal office is in New York, New York, is a Delaware corporation which maintains seven newspaper divisions, one of which is the Los Angeles Herald-Examiner located in Los Angeles, California. At all times material herein, the Los Angeles Herald-Examiner, hereinafter re- ferred to as the Herald-Examiner, has published a daily and Sunday newspaper. In the course and conduct of the publication of the newspaper, the Los Angeles Herald-Examiner subscribes to several inter- state news services, has an annual gross volume of business in excess of $1 million, and annually purchases goods and materials valued in excess of $100,000 which are shipped to it directly from points and places located outside the State of California. We find that the Herald-Examiner is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Los Angeles Newspaper Guild Local 69, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts At all times material herein, the Respondent has been the collective-bargaining representative of cer- tain employees of the Herald-Examiner. From 1940 to 1951, Kennedy was a member of the Respondent and subject to the wages, hours, and other terms and conditions of employment of collective-bargaining agreements between the Respondent and the Los Angeles Herald-Express, Division of The Hearst Publishing Company, Inc., hereinafter referred to as the Herald-Express. In 1951, Kennedy was employed as a columnist at the Herald-Express and entered into a personal service contract with The Hearst Publishing Compa- ny, Inc. In 1962, the Herald-Express became the Herald-Examiner and, since 1962, Kennedy has worked as a columnist at the Herald-Examiner under succeeding personal service contracts. As a result of these personal service contracts, Kennedy was no longer required as a condition of employment to maintain membership in the Respon- dent. Article XII of Respondent's most recent collective-bargaining agreement with the Herald-Ex- aminer specifically excludes "Editorial employees under personal service contract (maximum of ten in positions not exempt from contract)" from the coverage of the agreement. Kennedy was so excluded. Although he was under no contractual obligation to maintain union membership, Kennedy voluntarily elected to remain a member of, and he continued paying dues to, the Respondent. Prior to October 186 NLRB No. 78 LOS ANGELES NEWSPAPER GUILD LOCAL 69 1966, the Herald-Examiner checked off union dues for Kennedy and remitted them to the Respondent; subsequent to that month Kennedy remitted his own dues, continuing this practice through the month of December 1967. Kennedy paid no,,dues for any period after December 1967. On December 15, 1967, the Respondent struck the Herald-Examiner and commenced picketing its plants and premises. At that time, union dues for all members of the Respondent employed by the Herald- Examiner, including Kennedy, were reduced to 10 cents a month; commencing in January, the Respon- dent paid the aforementioned dues for all members employed by the Herald-Examiner, including Kenne- dy. Kennedy did not know that his dues had been reduced and were being paid by the Respondent. From December 15, 1967, until April 1, 1968, Kennedy did not report to the Herald-Examiner but he wrote his column at his home and sent it to the Herald-Examiner by messenger. On or about April 1, 1968, Kennedy was informed by the Herald-Examin- er's managing editor that thenceforth he would have to write his column at the Herald-Examiner's premis- es. By letter dated and mailed April 1, 1968, Kennedy informed the Respondent that "I herewith submit my resignation from the American Newspaper Guild effective on the above date." After he had mailed the aforementioned letter, Kennedy commenced crossing the Respondent's picket line and writing his column at the Herald-Examiner's business premises. The Respondent received Kennedy's letter of April 1 on or about April 3, 1968. On or about April 23, the Respondent's executive board refused to honor Kennedy's resignation because the Respondent knew that Kennedy had been working for the Herald- Examiner since the inception of the strike. On or about July 11, the Respondent notified Kennedy that charges had been brought against him for violating article XII of the American Newspaper Guild Constitution by working for or in a shop which is on strike, and that a trial board was scheduled to hear this charge on September 25, 1968. Kennedy replied by telegram that, since he was working under a personal service contract and had resigned from membership in the Respondent, he did not intend to appear. On September 25, 1968, the Respondent's trial board found that Kennedy was guilty of working for or in a shop which was on strike, called or endorsed as provided by the Respondent's constitution. The trial board fined Kennedy $7,139.60 plus costs of $37.41, the fine being for the period December 15, 1967, to December 15, 1968. The fine was computed by taking t See Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (The Boeing Co.), supra, In. It, and cases 549 Kennedy's last known wage rate under the Respon- dent's collective-bargaining agreement with the Her- ald-Examiner ($182.30 per week), less the amount he would have received in strike benefits had he participated in the strike ($45 per week), multiplied by the number of weeks Kennedy was working in or for the struck shop, commencing with the first week of the strike and concluding with a cutoff date of December 15, )968, the first anniversary of the strike. During this period, Kennedy's actual salary under his personal service contract was $400 per week. The decision of the trial board was sustained by the Respondent's general membership. Kennedy ap- peared at this meeting and was afforded the opportu- nity to be heard by the membership on the question of whether the trial board's decision should be sustained. As of the time that the stipulation of facts was entered into, the Respondent had not attempted to collect or enforce the fine levied against Kennedy. B. Contentions of the Parties The General Counsel contends that the Respon- dent's action violated Section 8(b)(1)(A) of the Act in two respects: First, the fine was imposed, in part, for Kennedy's conduct after he had resigned his member- ship; and, second, the fine levied is unlawful because it was "unreasonable" in amount. The Respondent denies the validity of these contentions and claims, inter alia, that Kennedy did not effectively resign in April 1968, but, in fact, that he is still a member. C. Conclusion In two recent decisions, we examined the applica- tion of Section 8(b)(1)(A) to fines imposed by unions upon their members. In Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (The Boeing Co.), 185 NLRB No. 23, we held that a union violates Section 8(b)(1)(A) by fining a former member for activities engaged in after his resignation. In International Association of Machin- ists and Aerospace Workers, AFL-CIO Local Lodge No. 504 (Arrow Development Co.), 185 NLRB No. 22, we stated that we would not decide whether a fine, otherwise lawfully imposed, nevertheless violated the Act because it was "unreasonable" in amount. The principles elucidated in these two decisions clearly govern the instant case. All that remains to be decided is whether Kennedy effectively resigned his member- ship in the Respondent. Although the Board has held that in the absence of express provision regarding the right to withdraw membership, a member may withdraw "at will,"' it is unnecessary for us to decide in this case whether labor cited therein. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizations may so restrict resignation by express internal restrictions for we are satisfied in this case that, in April 1968, Kennedy effectively resigned his membership in conformity with the applicable inter- nal union procedures. The constitution of the American Newspaper Guild provides for more than one method of resigning from membership. At issue is whether Kennedy's attempt to resign is to be judged by the standards set forth in section 13(b) or those in section 15 of article 10 of that document. Section 13(b) provides: A member leaving a shop or department or division thereof covered by Guild contract for one not so covered may resign, and any application for withdrawal by such member shall be considered a resignation. Upon resignation such member shall be issued an "acceptance of resignation" card, the contents of whichshall be determined by the IEB. Section 15 provides that: Any offer to withdraw or to resign from member- ship in the Guild other than for the reasons set forth in Section 13 of this Article shall be submitted in writing to the governing board of the Local, together with the reasons, in detail, for such contemplated withdrawal or resignation. The governing board of the Local shall thereupon inquire into the causes and vote on whether such withdrawal or resignation shall be accepted or rejected. Any acceptance shall always be condi- tioned upon full payment of all financial obliga- tions due and owing to the Guild. Upon the rejection of any offer to withdraw or resign, the membership obligations of the member making such offer shall continue in full force and effect. A member may appeal rejection of his resignation to the Local membership. A copy of the offer to withdraw or resign, together with the action taken by the Local thereon, shall be forwarded to the IEB. Such action shall not become final until approved by the IEB. The Respondent contends that Kennedy's attempt to resign must be judged by the standards set forth in section 15, supra, because "his reasons for wanting to withdraw quite obviously are not those set forth in Section 13." If judged by the standards of section 15, Kennedy's attempt to resign is ineffective for failure to state his reason and failure to follow the procedures outlined therein. The General Counsel contends that Kennedy's resignation must be judged by the stand- ards of section 13(b), which provide for no such procedural requirements. We agree with the General Counsel's contention that Kennedy's attempt to resign must be judged by application of the standards set forth in section 13(b). That section makes acceptance of resignation manda- tory upon the Union, and is clearly applicable to an employee in Kennedy's position, that is, one who has left a shop covered by a Guild contract for "one not so covered." We see no reason to adopt the construction apparently urged by the Respondent which would restrict usage of section 13(b) either to some unde- fined period immediately after leaving one shop for another or to situations where such a change is the sole reason for resignation . The section itself contains no such reservations and, unlike section 15, it does not require that any reason be given for the attempt to resign. We therefore find that Kennedy's resignation was effective in April 1968. Applying the standards set forth in Booster Lodge No. 405 (The Boeing Co.), supra, we find that the Respondent violated Section 8(b)(1)(A) of the Act insofar as it fined Kennedy for conduct he engaged in after he effectively resigned from membership. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Union set forth above, occurring in connection with the Company's opera- tions described above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union, by imposing a fine upon Kennedy for crossing its picket line after he ceased to be a member, restrained and coerced him in the exercise of his rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The foregoing unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, hereinabove described, we shall order it to cease and desist therefrom and take certain affirmative action to effectuate the policies and purposes of the Act, including rescission of that portion of the fine covering the period after Kennedy's resignation, and reimbursement of Kenne- LOS ANGELES NEWSPAPER GUILD LOCAL 69 dy for any such amount previously paid, together with 6-percent interest. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Los Angeles Newspaper Guild Local 69, AFL-CIO, CLC, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Imposing a fine upon William W. Kennedy or otherwise disciplining him for conduct engaged in after his resignation from membership. (b) In any like or related manner restraining or coercing William W. Kennedy in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Rescind and revoke any and all letters, notices, or announcements in which it is stated that William W. Kennedy has been fined for engaging in strike breaking activities occurring after his resignation from membership. (b) Reimburse William W. Kennedy for any moneys paid by him in satisfaction of that portion of the fine which was unlawfully imposed upon him, together with 6-percent interest per annum. (c) Post at its business offices and meeting halls in and about Los Angeles, California, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by its representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail signed copies of the notice to the Regional Director for Region 21 for posting by the Los Angeles Herald-Examiner, Division of The Hearst Corpora- tion, it being willing, at all locations where notices to its employees are customarily posted in its plants located in and about Los Angeles, California. (e) Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 551 MEMBER BROWN, dissenting: For the reasons set forth in my dissenting opinion in Boeing I would find no violation based on the fine in this case and would dismiss the complaint. 2 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce William Kennedy by fining him for exercising his right, following his resignation from membership, to work for the Los Angeles Herald-Examiner during the strike that commenced on December 1967. WE WILL rescind the fine imposed upon William Kennedy in the amount applicable to the period in which he reported to work as a nonmember. WE WILL reimburse William Kennedy those portions of that fine already paid to us. WE WILL NOT in any like or related manner restrain or coerce William Kennedy, or any other employee, in the exercise of rights guaranteed them in Section 7 of the National Labor Relations Act. Los ANGELES NEWSPAPER GUILD LocAL 69, AFL-CIO, CLC (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 compliance with its provisions may be directed to the Board's Office, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200.