Newport News Printing Pressmen's

NEWPORT NEWS PRINTING PRESSMEN'S Newport News Printing Pressmen's and Assistants' Union, Local No. 288, International Printing Pressmen and Assistants' Union of North America, AFL-CIO (The Daily Press, Inc.) and Lewis A. Bristow. Case 5-CB-962 February 9, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On August 6, 1970, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled pro- ceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other un- fair labor practices alleged in the complaint and re- commended that such allegations be dismissed. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Decision and a supporting brief.' The General Counsel filed cross-exceptions to the Trial Examiner's Decision and a supporting brief. 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 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 preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified below. 1. The record shows that on April 18, 1969, the Employer advised the Union of its intent to create a split-shift situation and asked the Union to supply a pressman for the position. The Union notified the Employer that it would not fill the position because it believed it was a negotiable matter under the terms of the existing agreement. Whereupon, the Employer hired Bristow, a rank-and-file pressman employed by a subsidiary of the Employer. The Union instituted a grievance proceeding on this matter and notified the Employer that it did not recognize Bristow as a crew- member, and beginning on Bristow's first workday, a pressman was designated for his job by the Union.' . i The Charging Party has requested oral argument. This request is hereby denied as the record, the exceptions, and briefs adequately present the issues and the positions of the parties 2 The individual dispatched by the Union for the job was rejected each day when he reported for work for the reason that Bristow had been hired over 475 Even prior to the time Bristow took the job, Respon- dent President Lascola had a conversation with him in the pressroom in the presence of Foreman Hicks. Lascola told Bristow that "If you take this job the Union will make it hard for you." Also, the evening before Bristow started on the new job he received a telephone call from Lascola telling him in effect that he better not take the job. When Bristow asked if he was threatening him, Lascola said, "the Union says you better not take it." When Bristow reported to work the next morning Chapel Chairman Armstrong asked him if he knew what he was doing. Having failed to persuade Bristow not to take the position, the Respondent then embarked upon a course of action which not only discriminated against him but also harassed him in order to force him to give up the position. We agree with the Trial Examiner's finding that the failure on the Respondent's part to offer overtime work for the first 12 weeks of Bristow's employment was unlawfully motivated. We find that Respondent thereby restrained and coerced him in violation of Section 8(b)(1)(A) of the Act and caused discrimination against him in violation of Section 8(b)(2) of the Act. The record further shows that Bristow from the commencement of his employment was subjected to direct verbal confrontations from his fellow employ- ees in the form of cursing, name-calling, incidents of a more physical nature, and at various times having clippings and stickers pasted on his locker. It is appar- ent to us that this conduct was being directed toward him because of the Respondent's and its members' dissatisfaction over his acceptance of the split-shift position, to the alleged detriment of its bargaining position. However, contrary to the Trial Examiner's finding, we find that responsibility for this harassment attaches to the Respondent. The record shows that the Respondent continuously opposed Bristow's employ- ment and was aware of the copstant harrassment by employee-members and its officers who were employ- ees.3 Moreover, Hicks, the pressroom foreman, both by letter and conversation with officials of the Re- spondent in their official capacity complained about the harassment of Bristow. However, Respondent made no effort to take any affirmative action to see that the harassment did not continue, nor did it at- tempt to disavow it. Under these circumstances, wherein Respondent told Bristow that if he took the position the Union would make it hard for him, the continuous opposi- tion to his employment in the position, the harassment resulting therefrom, and its refusal to disavow such the Union's protest In union language this man is referred to as a "gofer." J All 18 employees in the pressroom were union members, and at least 7 of them were union officials at some time relevant to the harassment inci- dents. In particular, William Thomas, secretary-treasurer of the Union, in- dulged in such activity up until the date of the hearing herein. 188 NLRB No. 73 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct by its officers and employee-members, we are convinced that the Respondent restrained and coerced Bristow in violation of Section 8(b)(1)(A) of the Act. We also find merit in the exceptions to the Trial Examiner's Remedy wherein he failed to order that Bristow be compensated for the' overtime pay which he lost because of the discrimination directed against him. Whether or not the Union will continue to main- tain control over the assignment of overtime work in the future is itself speculative as it is a subject matter of bargaining between the parties at the present. Aside from that, to require Bristow to work 27 additional periods of overtime, in addition to his regular shift and overtime work, to restore the status quo would create a hardship upon him, one which the discrimi- natee should not have to bear. In addition, the Em- ployer has indicated its unwillingness to allow this amount of work. Such long hours will interfere with production, and increase the risk of accident to per- son and property due to employee fatigue. We find that Bristow is entitled to backpay for his lost overtime shifts for the loss of which Respondent was responsible in the manner prescribed in "The Reme- dy" section hereafter. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order the Re- spondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent refused to offer overtime work to Bristow because of his accepting a position with the Employer which the Respondent did not want him to occupy, we shall order the Respon- dent to make Bristow whole for any loss of earnings sustained by reason of the loss of overtime opportuni- ties during the period between May 15, 1969, and August 7, 1969. Backpay to be computed on the num- ber of overtime opportunities lost during the above period and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. 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 Order of the Trial Examiner and hereby orders that Respondent, Newport News Printing Pressmen's and Assistants' Union of North America, AFL-CIO, its officers, agents, and representatives, shall take the ac- tion set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraph under 1 and substitute the fol- lowing: "(a) Causing or attempting to cause discrimination against Lewis A. Bristow by failing and refusing to assign him opportunities to work overtime shift situ- ations." "(b) Restraining or coercing Lewis A. Bristow, or any other employee, in the exercise of rights guaran- teed by Section 7 of the Act." 2. Delete paragraph 2(a) and substitute the follow- ing: "(a) Make Lewis A. Bristow whole for loss of earn- ings suffered as a consequence of the Respondent's refusal to offer him overtime work opportunities dur- ing the period between May 15, 1969, and August 7, 1969, with interest thereon at the rate of 6 percent per annum in the manner set forth in the section of our Decision and Order entitled The Remedy," 3. In footnote 15 of the Trial Examiner's Decision, substitute "20" for "10" days. 4. Substitute the attached appendix for the Trial Examiner's appendix. 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 Lewis A. Bristow in the exercise of rights guaranteed to him by the National Labor Relations Act by failing and refusing to assign him opportunities to work overtime shift situations. WE WILL NOT restrain or coerce Lewis A. Bristow, or in any like or related manner restrain or coerce employees, in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended. WE WILL make Lewis A. Bristow whole for any loss of overtime wages he would have derived except for the result of our discrimination against him from May 15, 1969, through August 7, 1969. NEWPORT NEWS PRINTING PRESSMEN'S AND ASSISTANTS' UN- ION, LOCAL No. 288, INTERNA- TIONAL PRINTING PRESSMEN AND ASSISTANTS UNION OF NORTH AMERICA, AFL-CIO (Labor Organization) NEWPORT NEWS PRINTING PRESSMEN'S UNION 477 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, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Telephone 301-962-2822. II THE STATUS OF THE RESPONDENT Newport News Printing Pressmen's and Assistants' Un- ion, Local No. 288, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, Respon- dent herein, maintains collective -bargaining relations with the Employer and is admitted to be a labor organization within the meaning of Section 2(5) of the Act. III THE ISSUES 1. Withholding of overtime assignments by the union official designated to administer such assignments as dis- crimination, restraint, and coercion. 2. Harassment of an employee by fellow employees as union restraint and coercion. IV THE UNFAIR LABOR PRACTICES TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Trial Examiner: Upon a charge filed on October 29, 1969, by Lewis A. Bristow, an individual employed by The Daily Press,,Inc., the Regional Director for Region 5 of the National Labor Relations Board, herein call ed the Board, issued a complaint on behalf of the Gener- al Counsel of the Board on February 13, 1970, against New- ppoort News Printing Pressmen's and Assistants' Union, Local No. 288, International Printing Pressmen and Assist- ants' Union of North America, AFL-CIO, Respondent her- ein, alleging violations of Section 8(b)(1XA) and (2) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor prac- tice. Pursuant to notice a trial was held before me in Newport News, Virginia, where all parties were present, represented, and afforded a full opportunity to be heard, to present oral argument, and to file briefs. Briefs were filed with me by all parties on May 19, 1970. Upon consideration of the entire record, including the briefs, and specifically upon my observation of witnesses appearing before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE NATURE OF THE EMPLOYER' S BUSINESS The Daily Press, Inc., the employer of Lewis A . Bristow, the Charging Party herein , is a Virginia corporation with its principal office and place of business in Newport News, Virginia, where it is engaged in the production of two daily newspapers and one Sunday edition. In the course and con- duct of its operations The Daily Press, Inc., during the 12-month period preceding the issuance of the complaint, subscribed- pto interstate news services , published nationally syndicated features, advertised nationally sold products, and derived gross revenue in excess of $200,000. Upon the foregoin admitted facts I conclude and find that The Daily Press, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) of the Act. 1 Cf. Bishop and Malco, Inc, 159 NLRB 1159, 1161 A. Background For at least the past 10 years the employees of the press- room of The Daily Press, Inc., journeymen, apprentices, and substitutes, were represented by the Respondent Un- ion. Collective-bargaining agreements between the parties have been in force throughout this period, including the most recent one which expired on February 28, 1969, but remains in effect by agreement of the parties pending the execution of a new agreement. In mid- 1968 the pressroom complement consisted of six regular night situations and five regular day situations, plus four substitutes and three apprentices ; a situation being the term used in the printing trade to designate a job or position. Sometime in mid-1968 it was determined by management that a so-called split-shift situation would be established to provide a situation consisting of two 7 1/2-hour night shifts and three 7 1/2-hour day srifts weekly. At that time the shifts were being filled either by substitutes or by overtime and it was determined that the creation of the split-shift situation would reduce the need for overtime and effect a considerable saving to the Company. On April 18, 1969 the Employer advised the Union of its intent to create the split-shift situation and asked the Union, as is the usual policy consistent with the contract, to supply a pressman. In response to the Employer's request Howard Armstrong, the Union's chapel chairman or steward, after consulation with other officials of the Union , notified the Employer that they would not fill the newly created vacancy for the reason that they believed that under the terms of the outstanding agreement the creation of such a situation was a negotiable matter. Whereupon the employer hired Lewis A. Bristow, a rank-and-file pressman employed by Southern Color Printing Corp ., a subsidiary of The Daily Press which prints its colored comic strips. Having refused to acquiesce in these actions, namely the creation of the situation and Bristow's appointment, the Union instituted a grievance proceeding pursuant to the terms of the collective agree- ment. This proceeding has progressed to the advanced stages of arbitration. Meanwhile, Chapel Chairman Arm- strong notified Foreman Hicks that the Union did not rec- ognize Bristow as a crewmember and beginning on the first workday under the split-shift arrangement, a pressman was designated for his job by the Union in accordance with its interpretation of the contract . The individual thus dis- patched by the Union and referred to in union parlance as a " ofer" (he was assigned to "go for" the job) was rejected each day when he reported for work for the reason that Bristow had been permanently hired over the Union's pro- 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD test.2 Bristow continues in his employment in the split-shift 1. The failure to allocate situation. overtime work B. The Baiting of Employee Bristow Following Bristow's hiring a series of incidents have oc- curred which it is charged constitute discrimination against and harassment of Bristow for his failure to "support Respondent's bargaining position." In support of this contention counsel for the General Counsel adduced testimony to the effect that not only had the Union vigorously objected to the creation of the split- shift situation, as noted previously, but itspecifically object- ed to the selection of Bristow for the job. Thus, as previously described, when the situation was created the practice was established of assigning a designated union member to the job and having him report daily at starting time. This was the "gofer" described earlier. In April 1969, prior to the time Bnstow took the job, Respondent's president, Charles Lascola, had a conversa- tion with him in the pressroom in the presence of Foreman Hicks. On this occasion Lascola told -Bristow that "If you take this job the Union will make it hard for you."3 There- after, on May 14, the day preceding his first day at work, Bristow received a telephone call from President Lascola which he credibly describes as follows: I answered the phone when the phone rang and said, Bristow speaking. He said, this is Charlie. I understand you are taking this job at the Daily Press, the split shift situation. And I told him that I was. He said, you better not take it. I asked him again what he said. He said, you better not take it. At this time I asked him if he was threatening me, he said, the Union says you better not take it. I asked him ... I told him that I didn't know what position he stood with the company or anything else of the arbitration at this time they were in, the only thing I knew that the job was open and I asked Mr. Hicks for it and I took it. Q. Did he tell you what the Union's position on it was? A. Beg your pardon? Q. Did he tell you what the Union's position on the split shift situation was? A. He told me that the Union had refused to fill it. Q. Did he tell you anything else about it? A. I can't recall at this time, sir. Q. All the time of this conversation, were you a paid up member in good standing of Local 288? A. Yes, sir. Upon reporting for work the following morning Chapel Chairman Armstrong spoke to him briefly, asking' if I knew what I was doing."4 The instances of mistreatment of Bristow, allegedly at the hands of the Union, are detailed below, generally in the order described at the trial. 2 At the trial before me an effort was made to establish that Bristow's acceptance of this employment resulted in punitive action against him for alleged violation of union rules. As I viewed such evidence to be beyond the scope of issues framed by the pleadings in this matter I rejected the evidence I reaffirm my ruling at this time. 3 The credited testimony of Bnstow . Hicks also testified to this conversa- tion, stating that Lascola told Bnstow, "I'm warning you, do not take this job " Lascola was not called as a witness 4 Armstrong was called as a witness by counsel for the General Counsel Although questioned at length by all counsel concerning practices followed and the numerous incidents related herein he was not confronted with Bristow's account of this first day conversation. I, accordingly, deem it undenied For the past 6 or 8 years it has been customary for the chapel chairman, independently of company management or control but with its acquiescence, to allocate overtime work as the need for it was dictated by production and manpower requirements. This is accomplished by means of the overtime board which the chapel chairman keeps. Each day he consults with the pressroom foreman and on the basis of the estimates he received he selects from the board the names of those to be scheduled for overtime shifts and notifies them. It is the composition of this board or list and the order of priority among pressroom employees listed on it that is basic to Bristow's complaint. According to Foreman Franklin Hicks, whom I credit, there are always overtime situations available, varying only in number from a minimum of 10 situations per week. When a new man comes onto the job his name is immediately placed at the bottom of the list. Thereafter, as a man is selected for overtime from the top of the list and works the assigned overtime shift his name reverts to the bottom of the list. Thus, as the system continues to operate and the new man's name reaches the top, it would appear that he, like all the other pressmen, has an equal opportunity to get his proportionate share of overtime work. Chapel Chairman Armstrong, while agreeing generally with nicks' description of the overtime allocation, disputes the assertion that a new employee's name is automatically placed on the list. On the contrary, according to Armstrong, and with specific reference to Bnstow's claim that he was deprived of overtime, the name of a new employee does not appear on the list until the employee requests it. As will appear from the circumstances surrounding Bristow's claim that he was deprived of overtime it does not matter, for the purposes of this case, how and when the names appear on the list, and I accordingly find it unnecessary to resolve the disputed testimony. Bnstow, who began work on the split-shift situation on May 15, 1969, under the adverse conditions detailed above, came to Foreman Hicks a week, later and told him he had not been asked to work overtime. Whereupon Hicks called Armstrong, the chapel chairman, and asked him about it. Armstrong, according to Hicks' credited testimony, told him that Bristow is not going to be put on the overtime board because we still don t consider him a member of the crew, therefore, he is not entitled to any overtime." Hicks did not know if Bristow had either then or thereafter re- quested that his name be placed on the overtime list. Bris- tow, although regularly employed since May 15, was allocated no overtime until August 8, and then only after Bristow's attorney had requested that his name be placed on the list. Meanwhile, two pressmen, officials of the Union who formerly worked as substitutes, became regular situ- ation holders: Horace Harris on May 29, 1969, and Law- rence Bowler July 15, 1969, both after Bristow's hiring. Foreman Hicks' records disclose, however, that each of these men were allocated overtime during all that period, albiet they were substitutes during part of it. Thus for the year of 1969 Harris worked 31 overtime shifts and Bowler 63 overtime shifts with Bristow having worked only 8, and all of them after August 7. 2. The harassment of Bristow From a synthesis of the testimony of witnesses questioned on the subject, including Foreman Hicks , the pressroom of The Daily Press appears to have manifest many of the clod- NEWPORT NEWS PRINTING PRESSMEN'S dish features of a carnival fun house and low level vaude- ville. Thus horseplay, name-calling, and pranks of high and low grade was the rule rather than the exception, indulged in by all the pressmen and tolerated by the Employer so long as it did not constitute a physical hazard. T this at- mosphere Bristow's unwelcome arrival appears to have add- ed new incentive. Two days after his arrival Bristow registered his first com- plaint with Foreman Hicks over the treatment he was re- ceiving from his fellow employees in the pressroom. At the outset this involved cursing him, calling him names, and making salacious and uncomplimentary remarks concern- ing him within his earshot. Bristow credibly detailed this as being addressed by employee William Thomas, Respondent's secretary-treasurer, who variously called him a rat, a scab, and a "goddamned son-of-a-bitch," a practice Thomas has indulged in up to the date of the hearing.' In addition to what appears to have been direct verbal confrontations Thomas was frequently heard to remark, "There is that rat," as Bristow appeared. Similarly, employ- ee Kenneth Baker, Respondents night chapel chairman in 1969, figured prominently in the attention shown Bristow during this period. Thus, beginning with Bristow's employ- ment, whenever he passed by or near Baker the latter was heard to call "eek-eek" after him, presumably emitting the sound of a rat. Bowler, another union officialand Thomas were also heard to make the same sound under similar circumstances ; and in more particular fashion Thomas, on one occasion, in the presence of employees Armstrong, Powell, and Peck, called out, "I smell a rat. The air is foul in here; it seems to be following me." Nor did Thomas, Bowler, and Baker confine their animal imitations to rats. As time went on they were frequently heard by Bristow to call "oink-oink" after him and to make grunting sounds, both after fashion of pigs.6 In midwinter. 1970, employee Prichard, an apprentice, asked the other employees in Bristow's presence flow much a man would have to accept to sell his soul down the river; and employee Bowler replied that he would not sell his soul for any amount of money. On a later occasion in the pres- ence of Bristow, employee Baker asked Prichard if he had read in the paper of the death by bombing of a prominent individual. chard, looking at Bristow, replied that it could happen here to someone he knew. In addition to the verbal barrage directed at Bristow, he also credibly described incidents of a more physical nature. In the early fall of 1969 there occurred what was referred to as the "varsol rag incident" occasioned by the throwing or dropping of a varsol-soaked rag being used by employees who were engaged in wiping and cleaning the framework of the presses. As Bristow was busy wiping in one area, he was caught on the back of the neck by a rag either dropped or thrown. As he looked up employee Baker who was cleaning nearby and above him looked at Bristow and laughed. At approximately the same time Bristow had occasion to be seated beneath the open-tread stairway leading to the upper level of the presses. When he was thus situated, dirt in the amount of a handful or less was dropped on -him from above. This occurred as employer Bowler was going up the 3 All of the incidents detailed herein are the credited, undenied testimony of Bnstow. Thomas was called as a witness and was present thereafter in the courtroom Assistant circulation Manager Dennis Ashe credibly described hearing many of the noises directed at Bnstow and described hereafter 6 The calls of "eek-eek" and "oink" described by Bnstow, as well as the grunting sounds and shouts of "pig, pig," were heard by Assistant Circulation Manager Ashe who credibly testified that Bnstow told him at the time they were being directed at himself. 479 stairs. A second dumping of dirt occurred thereafter in mid- winter. Bristow was in the reel room preparing a "paster," the beginning of a roll of paper pasted to adhere to the take-up roller of the press, when he observed a hand reach around from outside the room and throw a quantity of paper dust on the "paster" he had prepared. This occurred tour times on that particular evening but Bristow did not identify who was responsible. He did testify, however, that while he was working in the reel room, located in the lower reaches of the area, employees located on the floor above him set up a noisy din by slamming wrenches and shovels on the metal floor, accompanied by shouting and scream- ing. Bristow identified employees Cressell and Bowler as those involved. In the early fall of 1969 and on a second occasion in the following spring, Bristow was engaged in setting plates on the press. As part of the operation he would move the cylin- ders to obtain a proper placement for insertion of the plates. This was accomplished by pressing a "jog button" which moved the presses forward slowly from stopped position, and stopped the press when pressure was released from the job button. On the two occasions referred to, Bristow posi- tioned the cylinders by use of the jog button and prepared to insert the plates only to find the cylinders still slowly turning. Someone had continued to hold down a jog button from one of four other stations. He did not know who was responsible the first time, but on the second occasion, in the early spring, employee Thomas was at the other jog button station and he looked at Bristow and laughed. The so-called moth incident occurred in the early fall. Employees Baker and Thomas had found a moth of excep- tional wing spread, approximately 5 or 6 inches, which they first displayed to Foreman Hicks and then took to the area of the pressroom where Bristow was working. After holding up the moth for Bristow to see they "shooed" it in his direction, much to his consternation. On this same evening, and previous to the appearance of the moth, employee Thomas was in the toolroom with Bnstow. When Thomas finished his business there he put out the light and closed the door as he left, with Bristow still there. On December 23 while Bristow was helping several press- men load paper onto a press employee Thomas walked past him three or four times and as he did so he brushed an ink bucket which he was carrying against Bristow's leg. On one of these occasions Thomas was heard by Bristow to say, "I'll make the son-of-a-bitch talk if I have to squeeze it out of him tonight." Twice during the early spring as Bristow was seated in the lower level in the pressroom awaiting his roller to "run down," water was poured from an upper level onto his head and shoulders. When this occurred he went upstairs to in- vestigate and found Baker who looked at him and laughed. On another occasion in the early spring Bristow was en- gaged in putting paper on one of the presses, and employees Bowler and Baker were doing the same job-on another press. As Bristow was so engaged Baker called to him for help on the other press and Bristow told him he would come as soon as he finished the ob he was doing. Whereupon, Baker went to the foreman, Lange, and complained. Lange refused to accept the complaint and directed Baker back to his work. In addition to the foregoing catalog of buffoonery, the record contains additional credible testimony by Bristow of such instances as being told for no apparent reason to "go to hell," being asked if he had received his "monthly bo- nus," and being jostled about as he walked through the pressroom. And finally there were the five newspaper clippings that were pasted onto Bnstow's locker between October I and 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 25. These read as follows : (1)"The Bible says a Christian should be `as wise as a ser,rent and as harmless as a dove.' How can I accomplish this(2)"not a single rat has been found on Mt . Trashmore in two years since its begin- ning." (3) "Lonely Man. No friendship now." (4) "Do you feel ill at ease, out of it? Is everybody having a good time but you? Write for Ann Landers' booklet, `The Key to Popularity' " (5) "Sanitarian says rats are not confined to ghettos." It appears from the credited testimony of other witnesses that pasting clippings and stickers on lockers was a frequent prank and is still in vogue. C. Additional Findings, Analysis, and Conclusions From everything that appears in the record the adminis- tration of personnel matters and the enforcement of reason- able order and discipline in the Employer 's ressroom does not set a model to be followed in the trade . Quite apart from the incredible nonsense that appears to have been indulged in generally and tolerated by the management there most certainl was an aggravated extra portion of it meted out to Lewis Bristow. Whether this was accomplished by or at the direction of the Respondent Union and constitutes discrim- ination against Bristow, as well as unlawful restraint and coercion of him, is the sole issue to be resolved. For reasons best known to itself the Em ployer has, over the past 8 years, seen fit to turn over to the -Union a signifi- cant area of its personnel administration , the assignment of overtime. Having done this and agreed to the manner in which the overtime would be allocated , I am not prepared to conclude that the Employer has relieved itself ofpthe final responsibility for the manning of the pressroom. On the contray, the overtime records kept by Foreman Hicks makes it quite clear that the overtime board used by Chapel Chairman Armstrong in his assignment of overtime was not the sole control of this segment of the pressroom . I conclude and find, therefore, that the allocation is the Employer's responsibility using th e Union's active assistance Y But what is obvious here is that given a controversial subject, such as was Bristow's hiringg, the Daily Press was willing to overlook a hardship visited by the "assisting" Union upon one of its employees if to do otherwise would complicate its dealing with the Union. Here Bristow, whose hiring had been pro- tested by Respondent, complained to his foreman after I week of employment that he was receiving no overtime and the foreman called the chapel chairman about it, only to get an evasive explanation and no results . Twelve weeks later, and only after a demand by his own lawyer , Bristow was assigned his first overtime by the Union 's chapel chairman with no visible assist from the Employer. Because there has been no charge filed against this Em- ployer, Bristow has no recourse from it for its obvious disre- gard of his right to overtime employment . The same cannot be said for Respondent's conduct in this respect in the exer- cise of its "assisting" function. If ever a discrimination was obvious on its face it is Chap- el Chairman Armstrong's refusal for 12 weeks to assign Bristow an overtime shift. The Union protested and contin- ues to protest the split-shift situation created by the Em- plo er.'Then it protested the assignment of Bristow, known to have been a candidate for a supervisory position, to the job. And finally it continues to send a "gofer " to the job 7 I find nothing in the record to suggest that Respondent was acting as an agent of the Employer in this respect and I, accordingly , refrain from making such a finding, or using the term "agent." each day as its selectee for the newly created shift and as its continuing protest. Looking now to the allocation of overtime to working pressmen it is clear that the system used practically guaran- tees equal distribution of overtime shifts among the press- men, and the overtime records bear this out, excepting only the absence of assignments to Bristow . Moreover, since Bristow was hired on May 15 , 1969, two additional press- men, both union officials, have been hired-Harris and Bowler-and each have worked a considerable number of overtime shifts. The Respondent's only excuse for its failure to assign Bristow overtime shifts, and Chapel Chairman Armstrong so testified, was his failure to request that his name be added to the list. In the light of all the facts and circumstances considered here, it would be the height of naivete to accept this as Respondent's true reason for refusing overtime to Bristow. On the contrary, the facts disclose that the job for which Bristow was hired was one which Respondent pro- tested and continues to protest. They further disclose that on at least three occasions Bristow was told by union offi- cials not to take the job . When, with such an understanding of the job that he was taking and his Union 's warning not to take it, Bristow is nonetheless hired and he is thereafter deprived of overtime by the Union's chapel chairman, I have no alternative but to conclude that this deprivation is a reprisal against him for his refusal to conform to the Union's position on the subject of the establishment and filling of the split-shift situation, and has nothing whatever to do with his failure to ask for overtime . By thus discrim- inating against Lewis Bristow in the assignment of overtime, I, accordingly, conclude and find that Respondent re- strained and coerced him in violation of Section 8(b)(1XA) of the Act and caused discrimination against him in viola- tion of Section 8(a)(2).8 The alleged harassment of Bristow presents an entirely different situation. Everyone, including the Employer's offi- cials, concede that horseplay was rampant throughout the pressroom, particularly on the night shift . It becomes in- cumbent upon the General Counsel , therefore, to establish not only that the horseplay directed at Bristow was of an aggravated variety, which it seems to have been , but also th at it was perpetrated not by the employees but by the Union. We must distinguish here between the Union and its members. To begin with all 18 employees in the pressroom were union members, and at least 7 of this number were union officials at some time relevant to the incidents de- tailed here. So, only union members could have possibly been responsible for the harassment, and there is a strong likelihood, based upon' their proportionate number to the total, as well as upon actual testimony , that the union offi- cers contributed their share . But this does not establish that the Union was thereby responsible. All it does is establish that employees who were union members, and in some cases union officials, were responsible. And therein lies the dis- tinction. For to establish such responsibility by the Union it is necessary to show agency and not merely membership affiliation or office holdingg In the pranks and remarks described herein I find none of the usual indicia of agency. Nor do I find an obligation on the part of the Union to disavow conduct that appears to have been tolerated generally by the Employer over the years. In this respect I am mindful of cases cited to me by counsel for the General Counsel wherein a union has been held responsible for the conduct of its members . These, 8 San Francisco-Oakland Mailers' Union No. 18, international Typographi- cal Union (The Tribune Publishing Co), 180 NLRB No. 12 NEWPORT NEWS PRINTING PRESSMEN'S UNION however, do not fit the context of the aggravated horseplay of this case. In the cases cited the union involved was en- gaged either in picketmg,9 an organizing campaign,'° or excessive violence 11 and the offending harassment of employees was imputed to the union. Here, every act of harassment visited upon Bristow appears to have been a counterpart, however more intense, of similar conduct at other times and involving other employees. Foreman Hicks readily agreed that such horseplay was actually common- place and Production Manager Robert Wentworth con- firmed it. Now we come to the nub of this complaint of harassment. Clearly it was a violation of plant discipline, as evidenced by the fact that Hicks saw fit to warn the employees and complained to union officials of the consequences of its repetition. But be that as it may, the Employer whose press- room it was did nothing further than to remonstrate and figuratively wring its hands. No one was even shown to have been discharged or reprimanded before or during Bristow's tenure. At this point then, by virtue of the charges filed by Bristow, there would seem to be foisted upon the Board, through its remedial processes, the role of policeman which the Employer seems unwilling to assume for itself. I am not disposed to accept the performance of such a chore on behalf of the Board. It would appear that any employer successful enough and stable enough to earn the place in the community which The Daily Press, Inc., pres- ently enjoys should possess the desire and the internal ma- chinery sufficient to maintain order and discipline in its own shop, and not be responsive to the whims of its employees, be they union officials, rowdies, or, as here, both. I would be reluctant, therefore, to find that the aggravated horseplay directed at Bristow constituted anything but a series of breaches of plant discipline which any employer should be able to bring under control without the necessity of the victim of such horseplay being forced to seek aid of the Board. That Bristow was forced to so act does not justify a conclusion by me that the rowdyism of obviously immature employees thereby becomes the unlawful restraint and coer- cion of their union. I would, accordingly, recommend that so much of the complaint as alleges Bristow's harassment to be a violation of Section 8(b)(1)(A) of the Act be dismissed. V THE REMEDY I have found that in the administration of overtime allo- cations in behalf of the Employer the Respondent has failed and refused to make available to employee Lewis Bristow the same opportunities to work overtime shifts that it makes available to all other pressroom employees because, contra- ry to the advice and direction of Respondent's officials, he accepted a situation which was created over Respondent's opposition. As I have concluded and found that such con- duct thereby restrains and coerces Bristow in the exercise of rights guaranteed by the Act and unlawfully discriminates against him, I shall recommend that an order issue requiring that Respondent cease and desist from such conduct. I am not disposed, however, to recommend affirmatively that 9 Local 32, Industrial Union of Marine & Shipbuilding Workers ofAmerica (AFL-CIO) eta!, 133 NLRB 1077; United Mechanics Union Local 15-F, 151 NLRB 386 10 Gimble Brothers, Inc, 100 NLRB 870; District 65, Retail, Wholesale and Department Store Union, 157 NLRB 615, United Packinghouse Workers, Lo- cal 46, 153 NLRB 956 , American Newspaper Guile( AFL-CIO, 151 NLRB 1558. 11 Connecticut Foundry Company, 164 NLRB 916 , Samoff v Printing Pressmen 's Union, 72 LRRM 2623 481 Respondent reimburse Bristow for work he never per- formed. The essence of the discrimination here is the dep- rivation of opportunities to work overtime . Restitution, it would seem, should encompass the right to reclaim these opportunities, not to receive, out of and, the monetary value of them. Indeed to compensate Bristow at this point would seem to do violence to the stint of the Act wherein, in an analogous context, payments bey an employer for serv- ices not performed are proscribed.) Consistency with this spirit suggests that it would be inequitable , in the present circumstances, circumstances, to impose such a penalty upon the Respondent. Here the overtime opportunities are conceded to be continuing. If it be ordered that Bristow be provided sufficient overtime opportunities in the future to compensate for those which he lost to other employees be- tween May 15 and August 7, 1970, he will be fully made whole and only at the expense of those employees, fellow union members, or their successors, who profited undulyy from his discrimination during the period it occurred. shall, accordingly, recommend that Respondent be ordered affirmatively to provide to Lewis Bristow, over a period of 6 months next following the date of such an order, sufficient opportunities to work overtime situations to compensate him for those of which he has been deprived; such opportu- nities to be exclusive of those to which-Bristow shall regular- ly be entitled during this period , excluding, if necessary, overtime opportunities to all other employees in the Employer's pressroom. I shall also recommend the posting of appropriate notice of Respondent's compliance with such order as is issued against it. VI THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with the operations of the Employer descred in section II, above, have a close, inti- mate, 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 of commerce. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Sec- tion 10(c) of the National Labor Relations Act, as amended, I recommend 13 that Newport News Printing Pressmen's and Assistants, Union, Local 288, International Printing Pressmen and Assistants' Union of North America, AFL- CIO, Respondent herein, its officers , agents, and represent- atives, shall: 1. Cease and desist from restraining and coercing Lewis A. Bristow or any other employee in the exercise of rights guaranteed by the National Labor Relations Act by the discriminatory administration of the assignment of overtime situations. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Make whole Lewis A. Bristow for the discrimination against him by providing him, within the period ending 6 12 Sec 8(bX6) makes it an unfair labor practice for a labor organization "to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed." 13 In the event that this Recommended Order is adopted by the Board, the words "Recommended Order" shall be deleted from its caption and wherever else it thereafter appears; and for the words "I Recommend " there shall be substituted, "The National Labor Relations Board Hereby Orders." 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD months following the effective date of this Order , opportu- nities to work overtime shifts to the number of which he has been deprived by Respondent's discrimination against him, said opportunities to be in addition to those hereafter reg- ularly due him, withholding, if necessary to do so, the overtime opportunities usually due any and all other em- ployees in the Employer's pressroom. (b) Post at its business office, meeting hall, copies of the attached notice marked "Appendix.,' 14 Copies of said notice to be furnished by the Regional Director for Region 5, shall 14 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. 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 Rela- tions 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 " after being duly signed by the Respondent's representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Sign and mail sufficient number of copies of said notice to the Regional Director for Region 5 for posting by The Daily Press, Inc., in its pressroom where notices to em toyees are customarily posted. (d) Notify the Regional Director for Region 5 in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply here- with. 15 IT IS FURTHER ORDERED that the Company's allegation that the harassment of employee Bristow constituted a violation of the Act be dismissed. 15 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify the said Regional Director, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith